Case Preview: R (Cart) v The Upper Tribunal
13 Sunday Mar 2011
This is a case about relationships: A relationship between a former husband and wife. The relationship between the new Upper Tribunal and the courts. And the relationship between two parallel cases: one in England, the other in Scotland.
The English story started with a dispute between Mr Cart and his former wife, who had applied to the Child Support Agency for a variation of the maintenance assessment he had to pay. Mr Cart was not informed of the application. The assessment was varied. On being notified of the variation, Mr Cart sought a revision. He was refused. The First-tier Tribunal dismissed his appeal. Mr Cart sought to appeal on the ground that he had not been notified of the variation application. The Upper Tribunal refused him permission. There is no right of appeal against such a refusal. So, Mr Cart sought judicial review.
And this brings us to the second relationship in the English story: the relationship between the Upper Tribunal and English High Court. The Divisional Court ordered that the following two questions be tried as preliminary issues: first, whether the designation of the Upper Tribunal as a “superior court of record” of the Tribunals, Courts and Enforcement Act 2007, s 3(5) meant that its decisions were not amenable to the supervisory jurisdiction of the High Court; and, secondly, whether the decision which Mr Cart sought to challenge was amenable to judicial review.
As to the former question, the Divisional Court (Laws LJ, Owen J) held—after a lengthy judgment which included a diverting voyage through the history of the expression “superior court of record”, the division and development of the English court system and the contributions of the common law—that that designation was not a reliable guide to, let alone determinative of, those courts which are immune from judicial review. But Laws LJ nonetheless concluded that decisions of the Upper Tribunal were amenable to judicial review, albeit only on grounds of an outright excess of jurisdiction or denial of procedural justice.
As Laws LJ observed, the Divisional Court’s conclusion on the first question was of no help to Mr Cart in relation to the second question, since neither of these grounds applied in his case.
Meanwhile, in Scotland, one Ms Eba had embarked on a parallel journey through the Tribunal system. Her story will, by now, sound familiar: Her claim for disability living allowance had been dismissed. The First-tier Tribunal had dismissed her appeal. The Upper Tribunal had refused her leave to appeal. So, Ms Eba petitioned for judicial review of that refusal to the Court of Session. The Lord Ordinary (Glennie), referring to the reasoning of the English Divisional Court, dismissed her petition, holding that the decisions of the Upper Tribunal should, other than in exceptional circumstances, be regarded as final and not subject to review.
And with that Scottish interlude, the story returns to England and the Court of Appeal. The Court of Appeal (Sedley, Richards LJJ, Sir Scott Baker) endorsed the Divisional Court’s finding on the first preliminary issue. The Court of Appeal rejected the argument of the Secretary of the State that Parliament by the 2007 Act had taken a policy decision to place the Upper Tribunal wholly beyond the reach of judicial review. The supervisory jurisdiction of the High Court runs to statutory tribunals in their new incarnation unless ousted by the plainest possible statutory language. That language was not to be found under the 2007 Act. Thus, the Upper Tribunal could not be said to be entirely divorced from the High Court’s supervisory jurisdiction.
But, like the Divisional Court, the Court of Appeal determined that the extent of such judicial review was tightly circumscribed. The Court recognised the need to reconcile the relative autonomy accorded to the Upper Tribunal by Parliament under the 2007 Act with the constitutional role of the High Court as the guardian of standards of legality and due process from which the Upper Tribunal was not exempt. Accordingly, the Court found that there might be rare occasions where the Upper Tribunal made a serious error which took it outside the range of its decision-making authority, but Mr Cart’s was not such a case. It therefore dismissed Mr Cart’s appeal.
And then the story returns to Scotland, where Ms Eba’s appeal has gone to the Inner House. The Inner House (The Lord President (Hamilton), Lords Kingarth and Brodie)’s judgment began familiarly enough: the Upper Tribunal was found to be inferior to the Court of Session and, irrespective of the fact the Upper Tribunal might in some circumstances exercise a judicial review function, the only civil courts in Scotland which the Court of Session had regarded as not amenable to judicial review were those which were an alter ego or manifestation of the Court of Session itself. The Upper Tribunal could not be so regarded and was therefore amenable to judicial review in Scotland.
But here Ms Eba’s story departs from Mr Cart’s. The Inner House considered the Court of Appeal’s decision in Mr Cart’s case, which had become available while the Inner House’s opinion was in draft. The Inner House noted the consensus of the Scottish and English courts on the first question, namely whether the Upper Tribunal is immune from judicial review. But the Inner House did not agree on the second question, as to the scope of judicial review. The Inner House observed that, in contrast to the position in England, the right of the citizen in Scotland to invoke the jurisdiction of the Court of Session to control statutory bodies has never been circumscribed on discretionary or similar grounds. Accordingly, the Inner House found that, if Parliament wishes to exclude or restrict the supervisory jurisdiction of the Court of Session in particular circumstances, then it should legislate expressly to that effect. Having regard to the history and nature of the supervisory jurisdiction of the Scottish Court of Session, it did not follow that the scope of that jurisdiction over the Upper Tribunal should be the same as that of the English High Court. The Inner House therefore allowed Ms Eba’s appeal.
And, so, to the Supreme Court. It will be for the seven Justices (Lords Phillips, Hope, Rodger, Lady Hale, Lords Brown and Clarke, and Sir John Dyson SCJ) hearing the appeals in these two parallel cases finally to determine the relationship of the Upper Tribunal to the courts in England and in Scotland respectively and, thus, whether the English and Scottish stories shall share the same ending.