Blajosse Charlotte Eba (ap) V. The Advocate General For Scotland

JurisdictionScotland
JudgeLord President,Lord Kingarth,Lord Brodie
Judgment Date10 September 2010
Neutral Citation[2010] CSIH 78
Date10 September 2010
Docket NumberP1253/09
CourtCourt of Session
Published date10 September 2010

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President Lord Kingarth Lord Brodie [2010] CSIH 78

P1253/09

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

in Reclaiming Motion

by

BLAJOSSE CHARLOTTE EBA (AP)

Petitioner and Reclaimer;

against

THE ADVOCATE GENERAL FOR SCOTLAND

Respondent:

_______

Act: J Mitchell, Q.C., Drummond; Drummond Miller LLP (for Quinn Martin & Langan, Glasgow)

Alt: D Johnston, Q.C., Collins; Office of the Solicitor to the Advocate General

10 September 2010

Introduction
[1] On 11 February 2008 a claim by the petitioner and reclaimer for disability living allowance was refused by the Department of Work and Pensions.
In November 2008 an appeal against that decision was refused by the First-tier Tribunal Social Entitlement Chamber, established under the tribunal system introduced by the Tribunals, Courts and Enforcement Act 2007. Applications for permission to appeal to the Upper Tribunal were refused respectively by the First-tier Tribunal on 27 January 2009 and by the Upper Tribunal on 6 February 2009. The petitioner thereafter sought judicial review of each of those decisions. The focus of the submissions before the Lord Ordinary, and before this court, was the decision of the Upper Tribunal. The respondent is the Advocate General for Scotland, representing the Department. The Upper Tribunal was served with the petition but did not appear to make submissions. This reclaiming motion is brought against the decision of the Lord Ordinary on 31 March 2010 to dismiss the petition. The respondent has also lodged cross grounds of appeal.

The statutory framework
Organisation and structure of the new Tribunals system
[2] The 2007 Act gathers into a unified structure disparate jurisdictions previously exercised by a large number of statutory tribunals throughout the United Kingdom (see R(on the application of Cart and others)) v The Upper Tribunal and The Special Immigration Appeals Commission [2010] 2 WLR 1012 (hereinafter "Cart"), per Laws LJ at paras 9-16).
It provides for a comprehensive two-tier structure, comprising a First-tier Tribunal (section 3(1)) and an Upper Tribunal (section 3(2)), both of which are presided over by the Senior President of Tribunals (section 2(1) and 3(4)). All Court of Session judges and sheriffs and all (with minor exceptions) judges of the Court of Appeal, High Court and County Court, as well as Circuit and District judges, are, ex officio, judges of both the First-tier and the Upper Tribunal (sections 5(1)(g) and (6)). The Act sets out extensive categories of other persons who may sit as judges of the Upper Tribunal, including former Senior Immigration Judges (section 5(1)(d)(ii)) and Social Security Commissioners (section 5(1)(e) and (f)). The Upper Tribunal also includes a wide range of members who are not legally qualified (section 5(2)). The Upper Tribunal sits in a number of different places throughout the United Kingdom and has an office in Edinburgh. Wherever it sits it has the power to decide cases arising under the law of any part of the United Kingdom (section 26). Counsel for the respondent indicated that, while not expressly provided for in the Act, it is anticipated that issues of Scots law will normally be determined by judges qualified in Scots law, either sitting alone or as part of a two or three judge panel.

[3] The Lord Chancellor has the power to bring into the new tribunal system the functions of tribunals in existence before the Act came into force (section 30(1) and Schedule 6). With certain exceptions, the functions of a tribunal cannot be so transferred if, or to the extent that, the provision conferring the function would be within the legislative competence of the Scottish Parliament ("a devolved matter" - section 30(5)(a)). Both the First-tier Tribunal and the Upper Tribunal are organised into chambers by the Lord Chancellor, with the concurrence of the Senior President of Tribunals (section 7). Each Chamber is itself headed by a President. The First-tier Tribunal is presently organised into six Chambers, not all of which have jurisdiction in Scotland; the jurisdictions of the War Pensions and Armed Forces Compensation Chamber and the Health, Education and Social Care Chamber do not extend to Scotland at all. The General Regulatory Chamber exercises jurisdiction in Scotland in relation to some, but not all, of its functions. The jurisdictions of the Social Entitlement, the Tax, and the Immigration and Asylum Chambers extend to Scotland in their entirety. The General Regulatory Chamber was established in September 2009 and deals with matters formerly dealt with by the Consumer Credit Appeals Tribunal, the Estate Agents Appeals Panel, the Transport Tribunal, and, since January 2010, the Gambling Appeals Tribunal, the Information Tribunal and the Immigration Services Tribunal. The Social Entitlement Chamber was established in November 2008 and deals with matters formerly dealt with by the Asylum Support Tribunal, the Social Security and Child Support Appeal Tribunals and the Criminal Injuries Compensation Panel. The Tax Chamber was established in April 2009 and deals with matters formerly dealt with by the General and the Special Commissioners of Income Tax, the VAT and Duties Tribunal, and Tribunals under sections 704 and 706 of the Taxes Act. The Immigration and Asylum Chamber was established in February 2010 and deals with matters formerly dealt with by the Asylum and Immigration Tribunal.

[4] The Upper Tribunal is divided into four chambers: the Administrative Appeals Chamber; the Tax and Chancery Chamber; the Lands Chamber; and the Immigration and Asylum Chamber. The jurisdiction of the Lands Chamber does not extend to Scotland. The Administrative Appeals Chamber was established in November 2008 and, in Scotland, deals with matters formerly dealt with by the Social Security and Child Support Commissioners and some matters formerly dealt with by the Transport Tribunal (from September 2009) and the Information Tribunal (from January 2010). It also deals with appeals from the First-tier Tribunal General Regulatory Chamber and the Pension Appeals Tribunal (Scotland), the latter being the equivalent jurisdiction in Scotland of the War Pensions and Armed Forces Compensation Chamber. The Tax and Chancery Chamber was established in April 2009 and deals with onward appeals from the First-tier Tax Chamber and some complex first instance appeals. Since April 2010 it has also dealt with matters formerly dealt with by the Financial Services and Markets Tribunal and the Pensions Regulator Tribunal. The Immigration and Asylum Chamber was established in February 2010 and deals with matters formerly dealt with by the Asylum and Immigration Tribunal.

[5] The reclaimer's appeal against the refusal of her disability living allowance claim was initially made to the Social Security Appeals Tribunal, which, by the time it came to be heard, had become part of the First-tier Social Entitlement Chamber. Her appeal therefore lay to the Administrative Appeals Chamber of the Upper Tribunal. There are at present two full-time judges of that Chamber sitting in Scotland (Judge May, Q.C., and Judge Gamble), both of whom are qualified in Scots law, as well as four part-time judges, three of whom are qualified in Scots law, the other (qualified in English law) having previously sat in Scotland as a full-time Social Security Commissioner. A number of Court of Session judges have been assigned to particular chambers of the Upper Tribunal.

Review and appeal of Tribunal decisions
[6] Subject to any Tribunal Procedure Rules, both the First-tier Tribunal (section 9) and the Upper Tribunal (section 10) may, on their own initiative or on the application of a party, review their own decisions made in any case, other than "excluded" decisions (defined in section 13(8)).
In addition, the Upper Tribunal determines appeals on points of law from the First-tier Tribunal (sections 11-12). This right of appeal may be exercised only with permission, which may be given either by the First-tier Tribunal (section 11(4)(a)) or the Upper Tribunal (section 11(4)(b)). On hearing such an appeal the Upper Tribunal has relatively wide powers as set out in section 12. If it considers that an error of law has been made by the First-tier Tribunal, it may set aside the relevant decision and, if it does so, must either remit the case to the First-tier Tribunal with directions for its reconsideration or remake the decision itself.

[7] There is also a right of appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision (section 13(1)). Included in the definition of "excluded decisions" are decisions of the Upper Tribunal refusing leave to appeal to it from a decision of the First-tier Tribunal (section 13(8)(c)). There is therefore no right of appeal to the Court of Session or other appellate court from a decision of the First-tier Tribunal and the Upper Tribunal refusing leave to appeal, as in the present case. It is for the Upper Tribunal to determine which court is the relevant appellate court (section 13(11)). As with an appeal to the Upper Tribunal, permission is required for an appeal from it to the relevant appellate court (section 13(3)). Such permission may be given by the Upper Tribunal or by the relevant appellate court (section 13(4)). Where permission is sought from the Court of Session it is not to be granted unless the court considers that either the proposed appeal would raise some important point of principle or practice or there is some other compelling reason for the court to hear the appeal (Rule of Court 41.59).

Judicial review jurisdiction
[8] The Upper Tribunal also exercises a judicial review jurisdiction in both England and Wales (sections 15-19) and Scotland (sections 20-21).
In cases arising under the law of England and Wales or of Northern Ireland, it has...

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