Availability of remedy - Upper Tribunal - Scottish Court of Session

Eba v Advocate General for Scotland: Supreme Court (Lord Phillips P, Lord Hope DP, Lord Rodger, Lady Hale, Lord Brown, Lord Clarke and Lord Dyson): 22 June 2011

The Tribunals, Courts and Enforcement Act 2007 (the 2007 act) created a comprehensive two-tier tribunal structure, comprising a First-tier Tribunal and an Upper Tribunal.

The Upper Tribunal exercised a judicial review function in both England and Wales and Scotland.

In a case arising under Scots law, the Upper Tribunal did not have an original judicial review jurisdiction.

Instead, there was provision for both mandatory and discretionary transfers of judicial review petitions to it from the Court of Session.

The petitioner was refused a claim for disability living allowance by the Department for Work and Pensions.

Her appeal against that decision was refused by the First-tier Tribunal. Applications for permission to appeal against that decision were refused by the First-tier Tribunal and, subsequently, the Upper Tribunal.

The petitioner sought judicial review of the refusal of permission. In the Outer House of the Court of Session, the judge dismissed the petition.

In the course of his judgment he held, among other things, that having been placed at the apex of the new tribunal structure, the Upper Tribunal should be regarded as an appeal court of general jurisdiction, and that except where there was a right of appeal under the 2007 act, its decisions should, other than in exceptional circumstances, be regarded as final and not subject to review.

The petitioner brought a reclaiming motion against that decision and the advocate general cross-appealed.

The First Division of the Inner House of the Court of Session allowed the petitioner's motion and refused the cross-appeal.

The advocate general appealed.

The appeal was heard at the same time as those in R (on the application of Cart) v Upper Tribunal; R (on the application of MR (Pakistan)) v Upper Tribunal (Immigration and Asylum Chamber) and another ([2011] All ER (D) 149 (Jun)) as it raised the same issue.

The issue for determination, among other things, was whether the scope for judicial review of unappealable decisions of the Upper Tribunal should be restricted in some way.

It was common ground that the issue was confined to those decisions of the Upper Tribunal which were unappealable because, pursuant to section 13(8) of the 2007 act, they were excluded decisions.

Excluded decisions were not amenable to the process of internal review within the tribunal system under the regime of the 2007 act and that act had not provided an alternative remedy.

It was also common ground that the issue turned on the scope or extent of the remedy.

The appeal would be dismissed.

The approach in Scotland to unappealable decisions of the Upper Tribunal should be aligned with the approach taken in England and Wales.

The court should apply a benchmark to use in the exercise of its supervisory jurisdiction in relation to decisions that were unappealable that was in harmony with the common law principle of restraint.

The scope for a second appeal would be restricted by the phrases ‘some important point of principle or practice’ and ‘some other compelling reason’.

The issue would then be one of general importance and not confined to the petitioner’s particular facts and circumstances or else would include circumstances where it was clear that the decision was perverse or plainly wrong where, due to some procedural irregularity, the petitioner had not had a fair hearing (see [46]-[48] of the judgment).

The matter would be remitted to the Inner House to examine the question of whether the petitioner had sufficient grounds to bring a judicial review claim of the refusal of her application for disability living allowance (see [53] of the judgment).

Jonathan Mitchell QC and Lorna Drummond (instructed by Quinn Martin and Langan) for the petitioner; David Johnston QC and Simon Collins (instructed by the Office of the Solicitor to the Advocate General for Scotland) for the Advocate General; Michael Fordham QC and Tim Buley (instructed by Herbert Smith) for the Public Law Project as intervener; Alex Bailin QC, Aidan O'Neill QC and Iain Steele (instructed by Freshfields Bruckhaus Deringer) for Justice as intervener; James Mure QC and Anna Poole (instructed by the Scottish Government Legal Directorate) for the Lord Advocate as intervener.