Blajosse Charlotte Eba For Judicial Review Of The Refusal Of An Appeal To The First Tier Tribunal

JudgeLord Glennie
Neutral Citation[2010] CSOH 45
Published date31 March 2010
Docket NumberP/1253
CourtCourt of Session
Date31 March 2010


[2010] CSOH 45



in the petition of




Judicial review of the refusal of an appeal by the petition to the First-tier

Tribunal Social Entitlement Chamber dated 10 November 2008 and the refusal of permission to appeal by the Upper Tribunal dated 6 February 2009


Act: J Mitchell QC, Bryce; Drummond Miller LLP

Alt: Collins; Office of the Solicitor to the Advocate General for Scotland

31 March 2010


[1] On 23 November 2007, the petitioner claimed disability living allowance. That claim was refused on 11 February 2008. Her appeal to the Social Security Appeal Tribunal was heard in November 2008, by which time the functions of the Social Security Appeal Tribunal had been transferred to the First-tier Tribunal Social Entitlement Chamber, a chamber within the Tribunals system established by the Tribunals, Courts and Enforcement Act 2007. The First-tier Tribunal refused her appeal. She applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. That application was refused by the First-tier Tribunal on 27 January 2009. She renewed her application to the Upper Tribunal. On 6 February 2009, DJ May QC, sitting as a Judge of the Upper Tribunal, refused that renewed application for leave to appeal. In this petition, the petitioner, having exhausted her rights to appeal within the Tribunals system, seeks judicial review of the decision(s) of the First-tier Tribunal and/or of the refusal of permission to appeal by the Upper Tribunal. However, although the challenge in the petition is to the decisions of both the First-tier and Upper Tribunal, the discussion before me has proceeded upon the basis that it is the challenge to that of the Upper Tribunal which is crucial to the petitioner's success - on the basis that there was an alternative remedy against the decision of the First-tier Tribunal, namely an appeal with leave to the Upper Tribunal, until this path was blocked by the Upper Tribunal's refusal of leave.

[2] The respondent to the petition is the Advocate General for Scotland, representing the Department for Work and Pensions. He contends that the Upper Tribunal is not amenable to judicial review save in exceptional circumstances, the expression "exceptional circumstances" being used as a shorthand for cases where there has been an excess of jurisdiction "in the pre-Anisminic sense" - c.f. Anisminic v Foreign Compensation Commission [1969] 2 AC 147 - or a "collapse of a fair procedure". I take these expressions from para.4 of the respondent's Supplementary Note of Argument. At an early stage in these proceedings, it was thought that the respondent's argument would be that the Upper Tribunal was not amenable to judicial review at all, so that the petition was incompetent; and a hearing was fixed to determine that question. Parties were not clear whether the order made at that stage was a "First Order" in terms of Rule of Court 58.7 - for my part, I do not see why it should not be so regarded - but I do not think that that matters. In light of the submissions now made on behalf of the respondent, it was agreed that the issue as now focused is one of relevancy rather than competency, and the arguments were advanced before me on that basis.

[3] The Upper Tribunal has been served with the petition but has indicated that it does not wish to appear or be heard on it. It has made clear, however, that it would be willing to assist on any questions of fact which might arise. In the event, it has not been necessary to seek such assistance.

[4] The petitioner accepts that she has not pled herself within "exceptional circumstances" as that term is used by the respondent (see para.[2] above); and, accordingly, that, if the respondent's argument is accepted, the petition falls to be refused. If, on the other hand, the respondent's argument fails, then there will require to be further procedure to determine the merits of the petitioner's case.

[5] The respondent's primary argument focuses on the structural features of the Upper Tribunal as a judicial body, in particular its constitution and powers and its relationship to the Court of Session, rather than on the nature of the particular act or decision sought to be reviewed or the subject matter with which that act or decision is concerned. They also involve a detailed consideration of the decision of the Divisional Court in R (on the application of Cart, U & XC) v The Upper Tribunal and Special Immigration Appeals Commission (unreported, 1 December 2009, [2009] EWHC 3052) ("Cart"). It is convenient, therefore, before considering that argument in any detail, to set out the relevant provisions of the Tribunals, Courts and Enforcement Act 2007, to identify the organisation and practice so far developed within the Tribunals structure brought into being by the Act, and to summarise the decision in Cart and the reasons for that decision.

The Tribunals, Courts and Enforcement Act 2007

(i) overview

[6] As is explained by Laws LJ in Cart (at para.9), the Tribunals, Courts and Enforcement Act 2007 was enacted to gather into a unified structure disparate jurisdictions previously exercised by a wide variety of statutory tribunals throughout the United Kingdom. That structure involves the unification of mechanisms for appealing or reviewing decisions of tribunals. It provides for a comprehensive two tier structure, comprising a First-tier Tribunal (s.3(1)) and an Upper Tribunal (s.3(2)). Both the First-tier Tribunal and the Upper Tribunal are presided over by the Senior President of Tribunals, the holder of an office created by s.2(1) of the Act. The current Senior President of Tribunals is Sir Robert Carnwath, a Lord Justice of Appeal in England and Wales. S.3(5) of the Act provides that the Upper Tribunal is to be "a superior court of record". Although the Upper Tribunal has a limited first instance jurisdiction, its main function is to exercise an appellate jurisdiction over decisions of the First-tier Tribunal. It also has a judicial review jurisdiction.

(ii) judges and other members of the Tribunals

[7] Ss.4-8 of the Act deal with membership and composition of the Tribunals. I need not set out the terms of s.4, which deals with membership of the First-tier Tribunal, since it is not contended that the First-tier Tribunal has any special status relevant to the disposal of this petition. Membership of the Upper Tribunal, whether as a judge or simply as a member, is dealt with in ss.5 and 6. S.5(1) lays down who is a judge of the Upper Tribunal, while s.5(2) deals with who is a member. I need not spend time on members as opposed to judges. The combined effect of s.5(1)(g) and s.6 is to make all, or almost all, judges in England and Wales, Northern Ireland and Scotland, though not deputies or temporary judges, judges of the Upper Tribunal (as well as of the First-tier Tribunal). In England and Wales, that includes judges of the Court of Appeal, High Court and County Court as well as district judges. In Scotland it includes Court of Session judges and sheriffs. But, as s.5 makes clear, the categories of persons who may sit as judges of the Upper Tribunal are extensive. They include, for example, those who were previously senior immigration judges (s.5(1)(d)(ii)) and Social Security Commissioners (s.5(1)(e) and (f)).

(iii) organisation of the First-tier and Upper Tribunals

[8] S.7 of the Act provides for the organisation of the First-tier Tribunal and the Upper Tribunal into a number of Chambers. This is to be done by the Lord Chancellor with the concurrence of the Senior President of Tribunals. The functions formerly exercised by a large number of tribunals have already been brought within the new Tribunal system and assigned to the appropriate Chamber. The process is on-going. I refer later in this Opinion to the current state of affairs.

(iv) reviewing and appealing decisions

[9] Ss.9-14 of the Act provide both for the review of decisions of the First-tier Tribunal and of the Upper Tribunal, and also for appeals to the Upper Tribunal and to the courts. These provisions are of central importance to the arguments presented in this case.

(v) power to review own decisions

[10] Ss.9 and 10 respectively allow the First-tier Tribunal and the Upper Tribunal, on their own initiative or on the application of a party, and subject to such Tribunal Procedure Rules as may have been made, to review decisions made by them in a case, other than "excluded" decisions. For present purposes, I need not trouble with the meaning of "excluded decision" in this context.

(vi) appeals from the First-tier Tribunal to the Upper Tribunal
[11] In addition, as described below, there is a restricted right of appeal both from the First-tier Tribunal to the Upper Tribunal and from the Upper Tribunal to the courts.
In both cases an appeal is permitted only on points of law.

(vii) appeal to the Upper Tribunal

[12] Under s.11, a party may appeal to the Upper Tribunal, with leave either of the First-tier Tribunal or of the Upper Tribunal, on any point of law arising from a decision of the First-tier Tribunal (other than an excluded decision). The powers of the Upper Tribunal hearing an appeal (set out in s.12) are very wide. If it finds that an error of law has been made by the First-tier tribunal in reaching its decision, it may (but need not) set aside the decision of the First-tier Tribunal; and, in such a case, if it does set it aside, it must either remit the case to the First-tier Tribunal with directions for its reconsideration (which may include directions that it be heard by a differently constituted tribunal), or re-make the decision itself.

(viii) appeals from the Upper Tribunal to the courts

[13] There is a further right of appeal, again with leave of the Upper Tribunal or the relevant appellate court, to the Court of Session (and, in...

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5 cases
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    • 10 September 2010 set aside decisions of the First-tier Tribunal (Social Entitle ment Chamber) and the Upper Tribunal refusing her permission to appeal ([2010] CSOH 45; 2010 SLT 547). Mr Jonathan Mitchell, QC and Miss Lorna Drummond for Ms Eba; Mr David Johnston, QC and Mr Simon Collins for the Advocate-G......
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    • 22 June 2011 of each of those decisions was dismissed by the Lord Ordinary, who followed the reasoning of the Divisional Court in Cart: [2010] CSOH 45, 2010 SLT 547. She reclaimed that refusal, on the ground that judicial review was not so limited. The Advocate General cross-appealed on the groun......
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    ...allowed a reclaiming motion by Blajosse Charlotte Eba against an interlocutor of the Lord Ordinary (Lord Glennie) dated 31 March 2010: [2010] CSOH 45, 2010 SLT 547. It refused a cross-appeal against that interlocutor by the Advocate General for Scotland, representing the Department for Work......
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