Eba v Advocate General for Scotland (Scotland)

An unappealable refusal by the Upper Tribunal of permission to appeal remains subject to the supervisory jurisdiction of the Court of Session. The remedy is available as of right, but its scope must reflect the specialist tribunal structure and the principle of finality.

Review should therefore be confined by analogy with the second-appeal criteria. The case must raise an important point of principle or practice or disclose another compelling reason for review. The latter may include a decision which is plainly wrong or perverse, or a procedural irregularity which deprived the applicant of a fair hearing. Scots law recognises post-Anisminic error of law as a ground of review; the former distinction between jurisdictional and intra vires errors should no longer be followed.

The Upper Tribunal refused Ms Eba permission to appeal against the rejection of her claim for disability living allowance. That refusal was an excluded decision under section 13 of the Tribunals, Courts and Enforcement Act 2007, so no statutory appeal lay to the Court of Session.

The Lord Ordinary dismissed her petition for judicial review. The First Division allowed her reclaiming motion and held that the Upper Tribunal's decision was amenable to the Court of Session's supervisory jurisdiction without any policy-based or discretionary restriction: [2010] CSIH 78.

The Advocate General appealed. The central issue was whether, and to what extent, the grounds of review should be restricted for unappealable Upper Tribunal decisions, having regard to the rule of law, finality, specialist expertise and the distinct character of the Scottish supervisory jurisdiction.

1. Appeal dismissed. The Upper Tribunal's unappealable refusal of permission remained amenable to the supervisory jurisdiction of the Court of Session. The interlocutor of the First Division was affirmed, although for different reasons. The case was remitted to the Lord Ordinary to determine whether the petition met the restricted standard identified by the Supreme Court.

2. Lord Hope, delivering the judgment of the court, held that Scots law and English law do not differ in substance as to the grounds upon which a tribunal's decision may be reviewed. Anisminic abolished the former distinction between jurisdictional errors and other material errors of law. The dictum in Watt v Lord Advocate that the Court of Session could not correct an intra vires error of law was incompatible with that principle and should no longer be followed.

3. Access to the Scottish supervisory jurisdiction remains available as of right. The present issue concerned the substantive scope of review, not the competency of the petition or a discretionary power to refuse to entertain it. That scope is flexible and may be adapted to the nature, expertise and statutory setting of the decision-maker.

4. Unrestricted review was inappropriate for refusals of permission by the Upper Tribunal. The specialist two-tier structure created by the Tribunals, Courts and Enforcement Act 2007, the importance of finality and the restraint traditionally shown towards expert tribunals justified aligning the Scottish approach with that adopted in Cart and MR (Pakistan): [2011] UKSC 28.

5. The phrases “some important point of principle or practice” and “some other compelling reason”, used for second appeals, provide the appropriate benchmark. An important point ordinarily must possess general importance rather than concern only the petitioner's circumstances. A compelling reason may arise where the decision is perverse or plainly wrong, or where a procedural irregularity deprived the petitioner of a fair hearing.

6. The criterion should be considered at the earliest practicable stage. When asked to grant a first order under rule 58.7 of the Rules of the Court of Session 1994, the Lord Ordinary should consider whether an arguable case exists that the benchmark is met. The court did not determine the merits of Ms Eba's challenge.

7. It was unnecessary to decide the position of Scottish tribunals outside the 2007 Act structure. The court nevertheless observed that the common law principle of restraint might produce substantially the same practical approach to their unappealable decisions.

1. United Kingdom Supreme Court: Dismissed the Advocate General's appeal, affirmed the First Division's interlocutor for different reasons, and directed remittal for application of the restricted review criterion: [2011] UKSC 29.
2. First Division of the Inner House of the Court of Session: Allowed Ms Eba's reclaiming motion, refused the Advocate General's cross-appeal and held that the Upper Tribunal decision was reviewable without a policy-based or discretionary restriction: [2010] CSIH 78; 2010 SLT 1047; 2011 SC 70.
3. Outer House of the Court of Session: Lord Glennie dismissed the petition for judicial review: [2010] CSOH 45; 2010 SLT 547.