Kuteh, R (on the application of) v Upper Tribunal (Administrative Appeals Chamber)

Judicial review of a refusal by the Upper Tribunal to grant permission to appeal is subject to the stringent second appeals test. A compelling reason may arise where a serious procedural irregularity at first instance was not remedied on appeal and the claimant had a realistic prospect of a different outcome. A tribunal must consider all relevant evidence, even if its judgment does not refer to every item. Failure to consider significant evidence can amount to procedural unfairness and may justify quashing the decision where the omitted material might realistically have affected the result. Extreme consequences for the individual do not create a free-standing ground, but may strengthen an otherwise legally compelling case.

The claimant sought judicial review of the Upper Tribunal’s refusal of 11 January 2010 to grant permission to appeal, and its refusal of 1 April 2010 to set that decision aside. The underlying First-tier Tribunal had dismissed his appeals against inclusion on the Protection of Children and Protection of Vulnerable Adult Lists after finding that he had assaulted a young person during a riot.

The claimant argued that the First-tier Tribunal had failed to consider an important witness statement supporting possible self-defence. The central issues were whether that omission constituted a serious procedural irregularity, whether the Upper Tribunal had compounded it, and whether the circumstances supplied a compelling reason under the second appeals test.

1. Application granted. The decisions of the Upper Tribunal dated 11 January 2010 and 1 April 2010 were quashed. The matter was remitted to the Upper Tribunal to reconsider the application for permission to appeal.
2. Under R Cart v The Upper Tribunal [2011] UKSC 28, judicial review of a refusal of permission to appeal by the Upper Tribunal is available only where the second appeals test is satisfied: an important point of principle or practice, or some other compelling reason.
3. The court applied the guidance in PR Sri Lanka [2011] EWCA Civ 988, including the requirement for very high prospects of success in the ordinary case, subject to exceptional circumstances such as serious procedural unfairness. Extreme consequences are relevant but do not constitute a free-standing compelling reason. The approach was confirmed in JD Congo [2012] EWCA Civ 327.
4. A tribunal must consider all relevant evidence submitted by the parties. It need not refer to every item in its reasons, but omission from the judgment does not justify treating the evidence as disregarded. Where relevant material has been left out of account, the question is whether it might realistically have led to a different conclusion.
5. The First-tier Tribunal’s failure to address Mr Buck’s important eyewitness statement was a serious procedural irregularity. The evidence was significant on the issue of lawful self-defence and created a material tension with the evidence relied upon by the tribunal. The Upper Tribunal compounded the error by analysing the evidence itself and treating the absence of reference to Mr Buck’s evidence as insufficient to establish an error of law.
6. The Upper Tribunal could have cured the defect by directing a full rehearing, either by remitting the matter to the First-tier Tribunal or by arranging a hearing before itself. Refusing permission did not cure the defect. In the unusual circumstances, the combination of the procedural error, its perpetuation on appeal, the realistic possibility of a different result, and the serious effect on the claimant’s career amounted to a compelling reason.
7. The interested party was ordered under section 194(3) of the Legal Services Act 2007 to pay £5,700 in costs incurred on a pro bono basis.

1. First-tier Tribunal (Health Education and Social Care Chamber): dismissed the claimant’s appeals against inclusion on the Protection of Children and Protection of Vulnerable Adult Lists on 3 March 2009.
2. Upper Tribunal (Administrative Appeals Chamber): refused permission to appeal on 11 January 2010 and refused to set aside that refusal on 1 April 2010.
3. High Court (Administrative Court): granted judicial review, quashed both Upper Tribunal decisions and remitted the matter for reconsideration.