Kuteh v Secretary of State for Education

When judicial review is allowed and a case is remitted to the reviewed tribunal, the ratio of the High Court’s judgment binds that tribunal on reconsideration. The tribunal must proceed on that footing wherever the reasoning leads. It cannot treat the finding as relevant only to permission or substitute its own view of the underlying evidence. If the judgment is thought to contain a factual error, the proper remedy is an appeal. Where the High Court has found a serious procedural irregularity in the failure to consider material evidence, the tribunal must either remit the merits for fresh determination or rehear them itself. It cannot dismiss the substantive appeal by reconsidering the legality of the original decision alone.

The appellant, a qualified mental health nurse, was placed on protection lists following several incidents, including an alleged assault during a riot. The First-tier Tribunal dismissed his appeal. The Administrative Court later quashed the Upper Tribunal’s refusal of permission to appeal, holding that the First-tier Tribunal had failed to consider evidence from Mr Buck and had committed a serious procedural irregularity: [2012] EWHC 2196 (Admin). The Upper Tribunal then granted permission but dismissed the substantive appeal: [2013] UKUT 339. The issue before the Court of Appeal was whether the Upper Tribunal had remained faithful to the Administrative Court’s ratio when determining the merits.

Laws LJ delivered the judgment, with Patten LJ and Macur LJ agreeing. The appeal was allowed.

1. Binding effect of judicial review. Where a judicial review claim is allowed and the matter is remitted to the reviewed body, the ratio of the High Court’s decision is a binding premise, or axiom, for the reconsideration. The reviewed body must remain loyal to that ratio wherever it leads. Otherwise, the efficacy of judicial review and the rule of law would be undermined.
2. Alleged factual error. If the reviewed body considers that the High Court’s conclusion was based on a factual mistake, it cannot disregard the conclusion. The proper remedy for such an error was an appeal against the High Court’s judgment.
3. Application to the Upper Tribunal. The Administrative Court’s ratio was that the First-tier Tribunal had committed a serious procedural irregularity by failing to consider Mr Buck’s evidence. The Upper Tribunal incorrectly treated the Administrative Court as having found that the evidence had not been seen, and then disagreed with the supposed factual basis of that finding. The Upper Tribunal was bound by the actual conclusion, not by its own characterisation of the reasoning.
4. Required procedure. After granting permission to appeal, the Upper Tribunal had either to allow the appeal and remit the merits to the First-tier Tribunal, or to rehear the evidence and determine the merits itself. Its consideration of whether the First-tier Tribunal had erred in law or procedure did not satisfy that obligation. Arguments that the evidence could not have affected the result were unavailable because the binding premise was that the procedural irregularity was serious and non-academic.
5. Statutory context and relief. The references to the Tribunals, Courts and Enforcement Act 2007, sections 11(1) and 13(12), explained the allocation of appellate jurisdiction and did not permit the Upper Tribunal to reopen the Administrative Court’s ratio. The matter was to be returned to the Upper Tribunal for reconsideration on the footing identified by the Administrative Court.

• Court of Appeal (Civil Division) allowed the appeal and held that the Upper Tribunal was bound by the Administrative Court’s finding of serious procedural irregularity.
• Upper Tribunal (Administrative Appeals Chamber) granted permission to appeal but dismissed the substantive appeal in [2013] UKUT 339.
• Administrative Court quashed the Upper Tribunal’s refusal of permission to appeal and remitted the matter for reconsideration in [2012] EWHC 2196 (Admin).
• First-tier Tribunal dismissed the appellant’s appeal on 3 March 2009.