Cart v The Upper Tribunal: SC 21 Jun 2011

Limitations to Judicial Reviw of Upper Tribunal

Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper scope of judicial review was limited or excluded.
Held: The appeals failed, though the Court gave different reasons. The Upper Tribunal should be subject to judicial review only where a litigant would be allowed a second tier appeal, ie, where an important question of principle or practice falls to be answered.
Lady Hale said: ‘the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual. ‘
Lady Hale said: ‘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.’

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Clarke,Lord Dyson
[2011] UKSC 28, UKSC 2010/0176, [2011] PTSR 1053, [2011] 3 WLR 107, [2011] STI 1943, [2012] 1 AC 663, [2011] 4 All ER 127, [2011] AACR 38, [2011] MHLR 196, [2012] 1 FLR 997, [2011] Imm AR 704, [2011] STC 1659, [2012] Fam Law 398
Bailii, Bailii Summary, SC, SC Summary
Tribunals, Courts and Enforcement Act 2007 3
England and Wales
At Upper TribunalRC v Secretary of State for Work and Pensions UTAA 15-Apr-2009
. .
At First InstanceCart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Appeal fromCart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
CitedRex v Northumberland Compensation Appeal Tribunal, ex Parte Shaw CA 19-Dec-1951
A tribunal had wrongly calculated his ‘service’ when assessing the applicant’s compensation for loss of office as clerk to the Hospital Board. There was no right of appeal against its decisions. The Attorney General had argued that certiorari would . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
MentionedRegina v National Insurance Commissioner, Ex parte Secretary of State for Social Services; In re Packer CA 1981
Mrs Packer, a lady of eighty-three, claimed an attendance allowance under the Act of 1975 in respect of the cooking of her meals which she could not do herself. The Commissioner thought that eating was a bodily function and that cooking was so . .
CitedIn re Woodling; Woodling v Secretary of State for Social Services HL 1984
The question of law was whether cooking meals was ‘attention in connection with bodily functions’ for the purpose of attendance allowance.
Held: Though courts are willing to give ‘bodily functions’ a fairly wide meaning, it did not include the . .
Appeal fromEBA v The Advocate General for Scotland SCS 10-Sep-2010
(Inner House) The petitioner wished to appeal against refusal of disability living allowance. Her appeal to the first tier tribunal was rejected, and her request to the Upper Tribunal for leave to appeal was refused. When, she then sought leave to . .
CitedRegina v Immigration Appeal Tribunal, ex parte Darsham Singh Sohal QBD 1981
. .
CitedRegina v Immigration Appeal Tribunal, Ex parte Bakhtaur Singh HL 1986
The claimant’s appeal against the decision of the Secretary of State to deport him failed before the adjudicator. The Immigration Appeal Tribunal refused leave to appeal to that Tribunal. He sought judicial review of that refusal. The issue was . .
CitedBone v Mental Health Review Tribunal 1985
Review was sought of a decision of the Mental Health Tribunal.
Held: In the specific case of Mental Health Review Tribunals, reasons for decisions must be proper, adequate and intelligible, and dealing with the substantial points raised. . .
CitedRegina v Immigration Appeal Tribunal, Ex parte Bakhtaur Singh HL 1986
The claimant’s appeal against the decision of the Secretary of State to deport him failed before the adjudicator. The Immigration Appeal Tribunal refused leave to appeal to that Tribunal. He sought judicial review of that refusal. The issue was . .
CitedRegina on the Application of M v Immigration Appeal Tribunal; Regina (G) v Immigration Appeal Tribunal CA 16-Dec-2004
The appellants sought judicial review of the refusal of asylum. They sought leave to appeal to the Immigration Appeal Tribunal, but that had been refused. They then sought a statutory review by a judge of the Administrative division. That review . .
CitedChessington World of Adventures Ltd v Reed EAT 27-Jun-1997
News Group Newspapers Ltd had been joined as a party, in order that it could argue the obvious public interest relating to the importance, which has long been accepted in the courts, of the interest, not just of the press but of the public . .
CitedRegina v Regional Office of the Employment Tribunals (London North), Ex p Sojorin (unreported) CA 21-Feb-2000
The Employment Appeal Tribunal is immune from judicial review. . .
CitedCooke v Secretary of State for Social Security CA 25-Apr-2001
Although production of a new medical report, or of a new medical opinion, could evidence a relevant change of circumstances, to support the claim that the threshold had been reached so as to allow a review of a decision to grant benefits, it did not . .
CitedSivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another CA 28-Nov-2002
Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.
CitedFA (Iraq) and PD (India) v Secretary of State for the Home Department CA 28-Jun-2010
. .
CitedWiles v Social Security Commissioner and Another CA 16-Mar-2010
The court considered one of the last applications for permission to seek judicial review of a Social Security Commissioner’s determination before the transfer of the Commissioner’s jurisdiction to the Upper Tribunal. Mr Eadie, for the Commissioner, . .
CitedSecretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
DisapprovedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .

Cited by:
See AlsoEBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
CitedDaejan Investments Ltd v Benson and Others SC 6-Mar-2013
Daejan owned the freehold of a block of apartments, managing it through an agency. The tenants were members of a resident’s association. The landlord wished to carry out works, but failed to complete the consultation requirements. The court was . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedMichalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Judicial Review

Leading Case

Updated: 11 November 2021; Ref: scu.441294