Cart, R (on the application of) v The Upper Tribunal & Ors

The Upper Tribunal is amenable to the High Court’s supervisory jurisdiction. Its designation as a superior court of record, and its statutory powers resembling those of the High Court, do not make it a court of co-ordinate jurisdiction or impliedly oust judicial review.

However, the unified tribunal structure created by the Tribunals, Courts and Enforcement Act 2007 requires a confined form of review. Judicial review of an Upper Tribunal adjudication lies only for an outright excess of jurisdiction or a fundamental denial of procedural justice. Ordinary errors of law made within jurisdiction are to be corrected within the statutory appellate structure, subject to its onward second-appeal safeguards.

Mr Cart challenged an Upper Tribunal decision arising from child-maintenance proceedings. He complained that the original decision to vary maintenance in his wife’s favour had been made without notice to him. The First-tier Tribunal dismissed his appeal. The Upper Tribunal refused permission to appeal on that issue and later declined to reopen it, holding that the First-tier Tribunal’s fresh consideration had cured the earlier unfairness.

The Divisional Court held that the Upper Tribunal was judicially reviewable, but only for outright excess of jurisdiction or denial of procedural justice. It granted permission but dismissed the application: [2009] EWHC 3052 (Admin). Mr Cart appealed. The central issue was whether, and to what extent, the High Court could judicially review Upper Tribunal decisions under the new tribunal structure.

1. Appeal dismissed. The Court upheld the Divisional Court’s conclusion that the Upper Tribunal is subject to judicial review, but only on the two limited grounds identified below.

2. The Upper Tribunal is not an alter ego or avatar of the High Court. Its status as a superior court of record under the Tribunals, Courts and Enforcement Act 2007, and its possession of specified High Court powers, do not make it a court of co-ordinate jurisdiction. The ordinary supervisory jurisdiction of the High Court over statutory tribunals therefore remains unless Parliament uses the plainest statutory language to exclude it. The Act contained no such exclusion.

3. The scope of judicial review is a matter of law, not merely the discretionary withholding of relief. Parliament created a coherent and substantially self-sufficient tribunal system. The Upper Tribunal corrects errors made by the First-tier Tribunal, and serious legal issues may proceed through the statutory onward appeals. That structure justifies restricting review of Upper Tribunal adjudications.

4. Review lies where the Upper Tribunal has committed an outright excess of jurisdiction, meaning that it has undertaken an adjudication or made an order which Parliament could not have authorised. It also lies for a denial of procedural justice, such as disqualifying bias or a hearing so fundamentally unfair that the resulting determination is a nullity. These are distinct from an error of law made during an adjudication which the tribunal was authorised to conduct.

5. The Court rejected a historical exemption for social-security matters. The transfer of jurisdictions into the new structure left no basis for treating one chamber differently from the rest. Although serious errors may occasionally escape both the appellate process and this confined form of review, the common law could reconsider the position in the light of experience.

6. Mr Cart’s complaint did not disclose either permitted ground. The Upper Tribunal had considered whether the First-tier Tribunal’s fresh and full hearing cured the initial lack of notice. That was an issue of law and procedure within its adjudicative authority. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Dismissed Mr Cart’s appeal and upheld the Divisional Court’s limited judicial-review jurisdiction over the Upper Tribunal: [2010] EWCA Civ 859.

• High Court, Divisional Court: Held that the Upper Tribunal was amenable to judicial review only for outright excess of jurisdiction or denial of procedural justice. Permission was granted, but the application was dismissed: [2009] EWHC 3052 (Admin).

• Upper Tribunal: Refused permission to appeal on the notice issue and declined to reopen it, concluding that the First-tier Tribunal’s fresh hearing had cured the initial unfairness: [2009] UKUT 62 (AAC).