EBA 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 judicial review save in very limited circumstancs.
Held: The appeal failed, though the reasons varied. Unappealable decisions of the Upper Tribunal are amenable to judicial review in cases which raise some important point of principle or practice or some other compelling reason to be heard. A proper if difficult balance was to be found between the need for finality and the need to for justice.
Lord Hope said: ‘the rule of law . . is the basis on which the entire system of judicial review rests. Wherever there is an excess or abuse of power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it: West v Secretary of State for Scotland 1992 SC 385, 395. This favours an unrestricted access to the process of judicial review where no other remedy is available.’


Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Clarke, Lord Dyson


[2011] STI 1941, [2011] PTSR 1095, 2011 SLT 768, [2011] UKSC 29, UKSC 2010/0206, [2011] 3 WLR 149


Bailii, Bailii Summary, SC, SC Summary




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 . .
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 . .
At Outer HouseEBA, Re Judicial Review SCS 31-Mar-2010
The petitioner claimed disability living allowance. Her claim was refused, and eventually also at the Upper Tribunal, of whose decision she now sought judicial review.
Held: The Upper Tribunal being designated as a court of superior record. . .
See AlsoCart 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 . .
CitedEY v Secretary of State for The Home Department SCS 12-Jan-2011
Only in very exceptional circumstances should a refusal to grant first orders be made. . .
CitedRana, Regina (on The Application of) v Upper Tribunal (Immigration and Asylum) and Another; MR (Pakistan) v Upper Tribunal Admn 21-Dec-2010
The court was asked ‘Is a decision of a judge of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal against a decision of the First-tier Tribunal (Immigration and Asylum Chamber) amenable to judicial review on any . .
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.
CitedRegina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
CitedTehrani v Secretary of State for the Home Department HL 18-Oct-2006
The House was asked whether an asylum applicant whose original application was determined in Scotland, but his application for leave to appeal rejected in London, should apply to challenge those decisions in London or in Scotland.
Held: Such . .
CitedWatt v Lord Advocate 1979
Lord President Emslie said: ‘it seems clear that, however much this is to be regretted, the Court Session has never had power to correct an intra vires error of law made by a statutory tribunal or authority exercising statutory jurisdiction. As Lord . .
CitedWest v Secretary of State for Scotland SCS 23-Apr-1992
The petitioner complained that on being moved from his employment at one prison to another, he had been told that his moving expenses would be paid, but that they were not. The respondent said that the terms of his employment were that he was to be . .

Cited by:

CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
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 . .
Lists of cited by and citing cases may be incomplete.

Administrative, Benefits

Updated: 15 September 2022; Ref: scu.441295