ALVIN LLOYD REID (R on the application of) v THE UPPER TRIBUNAL (Administrative Appeals Chamber)

Judicial review of an Upper Tribunal refusal of permission to appeal is subject to the special Cart procedure only where the underlying decision is that of the First-tier Tribunal. The procedure does not extend to a refusal of permission to appeal against a decision of the Disclosure and Barring Service.

For appeals under section 4 of the Safeguarding Vulnerable Groups Act 2006, the Upper Tribunal may refuse permission where the proposed grounds have no reasonable prospect of success. The statutory scheme is compatible with section 3 of the Human Rights Act 1998 and Article 6.

The claimant challenged the Upper Tribunal’s refusal of permission to appeal against a decision of the Disclosure and Barring Service to include him in the Children’s and Adults’ Barred Lists. The underlying appeal to the Upper Tribunal was a primary appeal against the DBS decision, which could be brought on errors of law or fact.

The central issues were whether the judicial review was governed by CPR 54.7A and the second-appeal criteria identified in Cart v Upper Tribunal, and whether the Upper Tribunal could refuse permission on the basis that the proposed grounds had no reasonable prospect of success.

1. The application for permission to bring judicial review was dismissed. The grounds disclosed no arguable error in the Upper Tribunal’s refusal of permission.

2. CPR 54.7A applies, in terms, where permission to appeal has been refused against a decision of the First-tier Tribunal. The references to the First-tier Tribunal could not be read as including a decision of the DBS. The rule therefore did not govern this judicial review.

3. The judgments in Cart v Upper Tribunal were intended to impose the second-appeal criteria on judicial review of refusals of permission to appeal from the First-tier Tribunal. The context was a second appeal after decisions by two judicial bodies. That reasoning did not extend to a refusal of permission in a primary appeal against a non-judicial body’s decision.

4. Section 4 of the Safeguarding Vulnerable Groups Act 2006, read as a whole, necessarily permits the Upper Tribunal to filter out unarguable challenges of any kind. Permission could therefore be refused where none of the proposed grounds had a reasonable prospect of succeeding at a full hearing.

5. The DBS was entitled to rely on evidence it reasonably considered relevant and was not bound by the hearsay rules. It could place weight on the views of persons who had watched CCTV footage, including a specialist trainer. The Upper Tribunal had been entitled to conclude that there was no realistic prospect of establishing a relevant mistake of fact.

6. The statutory process was compatible with section 3 of the Human Rights Act 1998 and Article 6. Article 6 conferred no general right to an oral hearing, and the claimant had in any event received an oral hearing before the Upper Tribunal.

• Upper Tribunal (Administrative Appeals Chamber): Upper Tribunal Judge Hemingway refused permission to appeal against the DBS’s barring decision on 12 July 2021.
• High Court (Administrative Court): the judicial review permission application was dismissed.