• In the case of R Cart v Upper Tribunal [2011] UKSC 28, it was found that decisions made by the Upper Tribunal on an application for permission or leave to appeal can be subject to judicial review where the second-tier appeals criteria is fulfilled.

Facts of the Case

  • Cs failed in an appeal to the First Tier Tribunal on all three cases, and their appeal to the Upper Tribunal was rejected.
  • Section 13(6) of the Tribunals, Courts and Enforcement Act 2007 provide the second-tier appeals criteria, which state that an appeal from the First Tier Tribunal ought to be refused unless the court is satisfied by the following:
  • That the appeal raises an important point of principle or practice, or
  • There is a compelling reason for the appeal.
  • Cs applied for judicial review in all three cases for the rejection of permission to appeal.

Issues

  • What is the scope for judicial review by the High Court or Court of Session of unappealable decisions of the Upper Tribunal?

Held by the Supreme Court

  • The Supreme Court, by a unanimous decision, dismissed the appeal and found that judicial review should only be given where the second-tier appeal’s criteria is applicable; this means where there is a key point of principle or another compelling reason which demands reviewal of the case.

Baroness Hale

Baroness Hale recognised that the Tribunals, Courts and Enforcement Act 2007 did not have any provision which ousted or excluded the possibility of judicial review of the unappealable decisions of the Upper Tribunal. [37]

Baroness Hale found three possible approaches which could be adopted by the court:

  • “First, we could accept the view of the courts below in Cart and MR that the new system is such that the scope of judicial review should be restricted to pre- Anisminic excess of jurisdiction and the denial of fundamental justice (and possibly other exceptional circumstances such as those identified in Sinclair Gardens).
  • Second, we could accept the argument, variously described in the courts below as elegant and attractive, that nothing has changed. Judicial review of refusals of leave to appeal from one tribunal tier to another has always been available and with salutary results for the systems of law in question.
  • Third, we could adopt a course which is somewhere between those two options, and was foreshadowed by Dyson LJ (with the enthusiastic support of Longmore LJ) in R (Wiles) v Social Security Commissioner [2010] EWCA Civ 258 but rejected by the Court of Appeal in Cart , namely that judicial review in these cases should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted.”  [38]

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