Upper tribunal – Status — Judicial review — Tribunals, Courts and Enforcement Act 2007 introducing single structure incorporating existing tribunals — Whether Tribunal subject to jurisdiction of High Court by way of judicial review – Divisional court concluding that Upper Tribunal amenable to judicial review — Appeal dismissed
The Tribunals, Courts and Enforcement Act 2007 created a single structure that gathered together various tribunals. Section 3 provided for the creation of two tribunals, namely the First-tier Tribunal and the Upper Tribunal, each consisting of judges and other members. The senior president of tribunals was to preside over both of the First-tier Tribunal and the Upper Tribunal, which would be a superior court of record.
Section 25 also gave the Upper Tribunal, in the discharge of its adjudicative functions, “the same powers, rights and privileges and authority as the High Court”. Section 1 extended to all tribunal members the guarantee of judicial independence contained in section 3 of the Constitutional Reform Act 2005. The tribunals had to act judicially, whether adjudicating between citizen and state or between persons, and abide by their statutory remit.
An issue arose as to whether, despite its status, the Upper Tribunal was subject to the jurisdiction of the High Court by way of judicial review and, if so, on what grounds. The Divisional Court (see R (on the application of C) v Upper Tribunal [2009] EWHC 3052 (Admin); [2010] 2 WLR 1012) concluded that it was amenable to judicial review, but only on grounds of outright excess of jurisdiction or a denial of procedural justice: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 applied. Neither ground described what had happened to the appellant before the Upper Tribunal (in a case involving social security). Thus, the court allowed him to apply for judicial review but dismissed his application.
The appellant appealed, contending, inter alia, that social security was a special class of case that had historically, and beneficially, been subject to review by a higher appellate authority and should continue to be so. The Secretary of State and the Child Maintenance and Enforcement Commission appeared as interested parties. The Public Law Project intervened in the proceedings by way of written submissions.
Held: The appeal was dismissed.
The scope of judicial review available in respect of any amenable decision-making body was necessarily a matter of law. What was true of the rules of standing was equally true of the substantive principles of judicial review. The tribunal system was designed to be so far as possible a self-sufficient structure, dealing internally with errors of law made at first instance and resorting to higher appellate authority only where a legal issue of difficulty or of principle required it: R v Inland Revenue Commissioners, ex parte National Federation of Self Employed & Small Businesses Ltd [1982] AC 617 considered.
There was a true jurisprudential difference between an error of law made in the course of an adjudication that a tribunal was authorised to conduct and the conducting of an adjudication without lawful authority. Both were justiciable before the Upper Tribunal if committed by the First-tier Tribunal, but if committed by the Upper Tribunal, they would go uncorrected unless judicial review lay. The same was true of errors of law within jurisdiction; but those came within the principle that a legal system, although it could guarantee to be fair, could not guarantee to be infallible. Outright excess of jurisdiction by the Upper Tribunal and a denial by it of fundamental justice, should they ever occur, were in a different class since they represented the doing by the Upper Tribunal of something that parliament could not have authorised it to do.
Thus, if for some reason the Upper Tribunal made an order giving a money judgment that it had no power to give with the possibility of enforcement, it would be inimical to the rule of law if the High Court could not step in should the appellate system for some reason not do so. Similarly, if a member of the Upper Tribunal were to sit when ineligible or disqualified by a pecuniary interest, or if the Upper Tribunal conducted a hearing so unfairly as to render its decision a nullity, the High Court ought to be able to quash the determination. That list was not exhaustive, but it was illustrative of the kind of error, rare as it would be, that would take the Upper Tribunal outside the range of its decision-making authority. Such a division was one of legal principle which could properly form the basis of judicial policy. It applied only to the Upper Tribunal, since it was the role of the Upper Tribunal to correct errors of every kind, including outright excesses of jurisdiction and fundamental denials of justice, in the First Tier Tribunal : R (on the application of Sivasubramaniam) v Wandsworth County Court [2002] EWCA Civ 1738; [2003] 1 WLR 475 applied.
The new tribunal structure, although not analogous to the High Court, was something greater than the sum of its parts. It represented a newly coherent and comprehensive edifice designed, among other things, to complete the long process of divorcing administrative justice from departmental policy, to ensure the application across the board of proper standards of adjudication and to provide for the correction of legal error within, rather than outside, the system, with recourse on second-appeal criteria to the higher appellate courts.
Richard Drabble QC and Charles Banner (instructed by David Burrows Solicitors & Advocates, of Bristol) appeared for the appellant; James Eadie QC and Samuel Grodzinski (instructed by the Treasury Solicitor) appeared for the first and second interested parties; Michael Fordham QC and Timothy Buley (instructed by the Public Law Project) appeared for the intervener by written submissions.
Eileen O’Grady, barrister
