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, submitted that, applying Sivasubramaniam and Cort, judicial review should be restricted to outright excess of jurisdiction and fundamental denials of procedural justice. Alternatively, following this court’s decision in R (Sinclair Gardens Investments Ltd) v Lands Tribunal [2005] EWCA Civ 1305, he submitted that it should be restricted to difficult and unresolved issues of law of general significance. For the claimant, Mr Drabble contended that any material error of law was and ought to be justiciable by way of judicial review.
Held: Dyson LJ said: ‘If the scope of the jurisdiction to grant judicial review in respect of a refusal by a commissioner to grant leave to appeal had not been established for almost 30 years, I would have been inclined to adopt a position somewhere between those contended for Mr Drabble and Mr Eadie. I would reject Mr Eadie’s primary position. I can see no good reason why the court should not have power to grant judicial review of a refusal of leave to appeal in a case which involves a difficult point of law of general importance. It is clearly in the public interest that the court should be able to decide such issues. Accordingly, if exceptional circumstances were the correct test, I would be inclined to include in the category of exceptional circumstances those cases which raise a point of law of general importance (not necessarily circumscribed in the way suggested by Neuberger L.J. in Sinclair Gardens . . But in my judgment, there is considerable force in the submission that the categories of case in which judicial review should in principle lie in respect of a refusal of leave to appeal by a commissioner should not be limited to exceptional circumstances. In Sivasubramaniam it was accepted by the court that the practice of entertaining applications for permission to apply for judicial review of refusals of leave to appeal by the now defunct immigration appeal tribunal (‘IAT’) was justified. The ‘special factors’ justifying this practice were identified at [52]. I accept the submission of Mr Drabble that the nature and functions of the social security commissioners are closer to those of the IAT than to either the county court or the Lands Tribunal. They are an administrative tribunal, frequently called upon to adjudicate on significant legal issues which have far-reaching consequences well beyond the individual case, including important issues of human rights and EU law. I accept that issues such as the right to life and the right not to be tortured are unlikely to arise in a social security case. But a social security case may well involve the right of a claimant to subsistence income and so directly affect their access to the most fundamental necessities of life.
47. It seems to me that there is much to be said for opening the door somewhat wider than Mr Eadie would allow to reflect the fact that (i) issues that arise in social security cases may affect the lives not only of the individual claimant, but of many others who are in the same position, some of whom are among the most vulnerable members of our society; and (ii) the issues may be of fundamental importance to them, sometimes making the difference between a reasonable life and a life of destitution.
For these reasons, if the matter were free from previous authority, I would have been inclined to hold that the door to judicial review should be opened wider than Mr Eadie has submitted, even on his alternative argument. How much wider? In my judgment, there is much to be said for the criteria which the court applies in deciding whether to give permission to appeal for a second appeal. Section 55(1) of the Access to Justice Act 1999 provides that no appeal may be made unless it is considered 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.’ It seems to me that this formula would strike a fair balance between the competing considerations which arise where a commissioner refuses leave to appeal.
49. But I do not find it necessary to reach a concluded view on this, since I am persuaded by Mr Drabble that we should not depart from the approach (most clearly and fully articulated in Connolly) that has been established and applied by the courts for more than 25 years.’
Longmore LJ added: ‘I agree with Dyson LJ that the comparatively long line of authority permitting the court to grant judicial review on orthodox grounds of a decision by a Social Security Commissioner to refuse to give permission to appeal to himself from a decision of the SSAT should not be disturbed at this late stage in its existence. Now that the Commissioners have become part of the Upper Tribunal, no doubt the forthcoming decision of this court in Cart will be applicable in future and there may be a shift in the judicial review perspective. If there is, I would warmly endorse Dyson LJ’s view that it might be appropriate to adopt a similar test to that imposed by statute on the Court of Appeal in respect of second appeals.’
Judges:
Sedley, Dyson, Longmore LJJ
Citations:
[2010] EWCA Civ 258
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Cooke 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 . .
Cited by:
Cited – Cart, 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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Benefits, Judicial Review
Updated: 15 August 2022; Ref: scu.402952