SM v The Court of Protection
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] EWHC 2046 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1654/2021 |
[2021] EWHC 2046 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: CO/1654/2021
The applicant acts in person
Approved Judgment
I certify pursuant to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 that in other proceedings this judgment may be cited and/or included in a bundle of authorities.
By her application in Form N461 the claimant seeks permission to challenge the following decision:
‘COP decision on Best Interest on long term placement. Date of decision: 12th March 2021’
The application is undated but was made on or about 4 May 2021.
On 12 March 2021 HHJ Hilder made an order in the Court of Protection in relation to the claimant's daughter, RM, who is nearly 24 years old. Para 3 of that order provided:
‘After 31 August 2021 RM shall reside and receive care in the long-term at 41DPA, this being in her best interests. (For the avoidance of doubt, SM's application for an order that RM's placement at 41 DPA should be interim only is refused).’
Para 16 of that order stated that permission to appeal para 3 was refused.
As was her right, the claimant applied to a Court of Protection Tier 3 judge for permission to appeal. On 12 April 2021 Keehan J refused the application, holding:
‘I have read the Notice of Appeal, the Skeleton Argument of the Applicant and the accompanying documents, including the position statements prepared for the hearing on 12.03.21 before HHJ Hilder.
Permission to appeal the provisions of paragraph 3 of the order of 12.03.21 is refused.
There is no reasonable prospect of the proposed appeal succeeding on the basis that there is no reasonable prospect of establishing that the decision of HHJ Hilder to approve a long term placement of RM was wrong.
I consider the proposed appeal to be totally without merit.’
The claimant has no further right of appeal. Permission to appeal having been refused, she has no right to appeal that decision to the Court of Appeal: see s.54(4) of the Access to Justice Act 1999.
Therefore, the claimant has issued this application for judicial review. It is a proxy for a prohibited appeal against the decision of Keehan J, and as such is likely to be an abuse.
The application gives rise to the core question: is a decision of the Court of Protection (‘COP’) refusing permission to appeal susceptible to judicial review? If the answer is yes then the reviewable decision is that of Keehan J and not that of HHJ Hilder. The claimant is now out of time for challenging the decision of Keehan J.
The core question requires consideration of the decisions of the Divisional Court, the Court of Appeal and the Supreme Court in R (Cart) v Upper Tribunal (Public Law Project intervening) [2012] 1 AC 663, SC; [2011] QB 120, CA and DC.
In Cart the question was whether a decision of the Upper Tribunal (UT) refusing permission to appeal a decision of the First-tier Tribunal (FTT) was susceptible to judicial review.
The Tribunals, Courts and Enforcement Act 2007 established the UT. Section 3(5) provides:
‘The Upper Tribunal is to be a superior court of record.’
Section 25 provides:
‘Supplementary powers of Upper Tribunal
(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal:
(a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and
(b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session.
(2) The matters are —
(a) the attendance and examination of witnesses,
(b) the production and inspection of documents, and
(c) all other matters incidental to the Upper Tribunal's functions.’
In the Divisional Court Laws LJ explained in a judgment of the utmost erudition that designation as “a superior court of record” did not of itself render the UT immune from judicial review. In the Supreme Court at [37] Baroness Hale stated that the contrary argument was “killed stone dead” by that judgment.
Section 25 was not referred to in the Divisional Court or the Supreme Court. In the Court of Appeal at [16] Sedley LJ stated:
‘The problem with section 25 is that it is equally explicable as a badge of status and as a recognition that, but for the express provision it makes, the UT would lack the inherent powers enjoyed by the High Court.’
The High Court powers granted to the UT by s.25 are essentially procedural. They do not reincarnate the High Court under a different name. On the contrary, as Sedley LJ explained at [19]:
‘…the UT is not an avatar of the High Court at all: far from standing in the High Court's shoes, as Mr Fordham puts it in his written submission, the shoes the UT stands in are those of the tribunals it has replaced.’
In the Supreme Court at [37] Baroness Hale agreed that the judicial review jurisdiction of the High Court over unappealable decisions of the UT had not been ousted. She said:
‘The way in which the argument has developed through the proceedings which are now collected before us enables us to be clear on three points. First, there is nothing in the 2007 Act which purports to oust or exclude judicial review of the unappealable decisions of the Upper Tribunal. Clear words would be needed to do this and they are not there. The argument that making the Upper Tribunal a superior court of record was sufficient to do this was killed stone dead by Laws LJ and has not been resurrected. Second, it would be completely inconsistent with the new structure introduced by the 2007 Act to distinguish between the scope of judicial review in the various jurisdictions which have now been gathered together in that new structure. The duties of the Senior President, set out in section 1(2), clearly contemplate that the jurisdictions will retain their specialist expertise, so that one size does not necessarily fit all; but the relationships of its component parts with one another and with the ordinary courts are common to all. So too must be the principles adopted by the High Court in deciding the scope of judicial review. Third, the scope of judicial review is an artefact of the common law whose object is to maintain the rule of law—that is to ensure that, within the bounds of practical possibility, decisions are taken in accordance with the law, and in particular the law which Parliament has enacted, and not otherwise. Both tribunals and the courts are there to do Parliament's bidding. But we all make mistakes. No-one is infallible. The question is, what machinery is necessary and proportionate to keep such mistakes to a minimum? In particular, should there be any jurisdiction in which mistakes of law are, either in theory or in practice, immune from scrutiny in the higher courts?’
The Supreme Court went on to rule that the test for challenge in judicial review proceedings should be the same as that for a second-tier appeal under s.55 of the Access to Justice Act 1999: see [55] per Baroness Hale and [130] per Lord Dyson. Section 55 provides:
‘Where an appeal is made to the county court, the family court or the High Court in relation to any matter, and on hearing the appeal the court makes a decision in relation to that matter, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that:
(a) the appeal would raise an important point of principle or practice, or
(b) there is some other compelling reason for the Court of Appeal to hear it.’
This has led to the introduction of CPR 54.7A. This rule only applies where the UT has refused permission to appeal against a decision of the FTT. It does not, therefore, apply in this case, or, for that matter, in respect of an unappealable refusal of permission to appeal from a decision made in the Family Court or the County Court.
CPR 54.7A(7) provides:
‘The court will give permission to proceed only if it considers –
(a) that there is an arguable case, which has a reasonable prospect of success, that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the First Tier Tribunal against which permission to appeal was sought are wrong in law; and
(b) that either –
(i) the claim raises an important point of principle or practice;
or
(ii) there is some other compelling reason to hear it.’
And para (8) provides
‘If the application for permission is refused on paper without an oral hearing, rule 54.12(3) (request for reconsideration at a hearing) does not apply.’
Although the Supreme Court clearly intended that the number of challenges capable of being made in such judicial review proceedings would be very small, the law of unintended consequences has led to very many such applications being made. Anyone who sits doing paper applications in the Administrative Court will know that perhaps up to one day a week is spent doing “Cart” applications, almost all of which are hopeless.
Consequently, the report 1 of the Independent Review of Administrative Law Panel, chaired by Lord Faulks QC, has recommended that the Cart jurisdiction be abolished: see paras 3.35 – 3.46. It recorded the remarkable statistic that of 5,502 Cart applications in the eight year period from 2012 – 2019, only 12 were ultimately successful.
The government has accepted this recommendation and it is anticipated that it will be contained in the forthcoming Judicial Review Bill. Although the report of the panel dwelt on applications against unappealable decisions of the UT, its reasoning must apply equally to a Cart-type application seeking to challenge an unappealable refusal of permission to appeal by an appeal judge in the County Court or Family Court. If the Cart jurisdiction is...
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Upper Tribunal (Immigration and asylum chamber), 2022-05-05, [2022] UKUT 00156 (IAC) (R (on the application of Watson) v Secretary of State for the Home Department (s. 94B process, s. 25 powers))
...12 of the 2007 Act. In support of this challenge, the applicant points to the judgment of Mostyn J in SM v Court of Protection [2021] EWHC 2046 (Admin). In that case, the judge held that the Court of Protection was not subject to judicial review as it was the alter ego or avatar of the High......