Eba v Advocate General for Scotland

The Supreme Court considered the scope of judicial review in the Court of Session of decisions of the Upper Tribunal under the Tribunals, Courts and Enforcement Act 2007 that are excluded from appeal (notably decisions refusing permission to appeal under section 11(4)). The Court held that unappealable decisions of the Upper Tribunal are in principle amenable to judicial review but that the scope of the remedy should be tailored to reflect the expertise and role of the Upper Tribunal and the policy of finality in the statutory scheme.

The Court rejected the very narrow approach adopted by the Court of Appeal in R (Cart) v Upper Tribunal which limited review to pre-Anisminic jurisdictional errors or decisions that were nullities for procedural unfairness. Instead it adopted an intermediate approach, using the statutory second-appeal criteria (section 13(6) of the 2007 Act and rule 41.59 of the Rules of Court of Session) as a benchmark: judicial review should be available where the point raises some important point of principle or practice or there is some other compelling reason (including procedural irregularity or a plainly wrong or perverse decision).

The Court therefore dismissed the Advocate General's appeal, affirmed the Inner House interlocutor and remitted the matter for further consideration of the merits applying the Court's tailored approach to scope of review.

The respondent, Ms Eba, sought judicial review in the Court of Session of a decision of Judge DJ May QC of the Upper Tribunal refusing permission to appeal a First-tier Tribunal decision denying disability living allowance. There was no right of appeal to the Court of Session because section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 excludes Upper Tribunal decisions on applications for permission to appeal. The Lord Ordinary dismissed the petition; the Inner House (First Division) allowed a reclaiming motion and held that such unappealable Upper Tribunal decisions were amenable to judicial review without restriction on grounds. The Advocate General appealed to the Supreme Court.

The central issues were (i) whether unappealable decisions of the Upper Tribunal are amenable to judicial review in the Court of Session, and if so (ii) what the permissible scope of such review should be in Scotland given differences between Scottish supervisory jurisdiction and the position in England and Wales and given the statutory framework in the 2007 Act.

The Supreme Court heard argument alongside related English cases (R (Cart) v Upper Tribunal and MR (Pakistan)). It rejected the Court of Appeal's narrow test in Cart which confined review to pre-Anisminic jurisdictional nullities or procedural unfairness, finding that approach too narrow to protect against significant errors of law. It also rejected an unrestricted approach to judicial review. Instead the Court adopted a proportionate, principled limit: the Court of Session should use the second-appeal statutory criteria (that the proposed appeal would raise an important point of principle or practice, or there is some other compelling reason) as a benchmark to decide whether an unappealable decision merits judicial review. The Court emphasised the continuing availability of judicial review as of right but endorsed a tailored intensity of review reflecting tribunal expertise and the need for finality. The Advocate General's appeal was dismissed and the case remitted to the Lord Ordinary to consider whether Ms Eba has sufficient grounds for judicial review of Judge May's decision applying the approach described.

The Court also addressed the relationship between the 2007 Act tribunals and other Scottish tribunals, indicating no obvious reason to adopt a different approach for tribunals outside the 2007 Act but declining to decide that point on these facts.

The appeal by the Advocate General was dismissed. The Court held that unappealable decisions of the Upper Tribunal are amenable to judicial review in the Court of Session but that the scope of review should be restrained and modelled on the statutory second-appeal criteria (that the proposed appeal would raise an important point of principle or practice or there is some other compelling reason). The Inner House interlocutor was affirmed and the matter remitted for application of that test to the merits.

Lord Ordinary (Outer House) interlocutor dated 31 March 2010: [2010] CSOH 45, 2010 SLT 547 (petition dismissed). First Division (Inner House) allowed reclaiming motion 10 September 2010: [2010] CSIH 78, 2010 SLT 1047, 2011 SC 70 (interlocutor reversed). Appeal to Supreme Court: [2011] UKSC 29 (this judgment). Also considered alongside R (Cart) v Upper Tribunal [2010] EWCA Civ 859, [2011] 2 WLR 36, [2011] QB 120 and MR (Pakistan) [2010] EWHC 3558 (Admin).