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Judicial review of Upper Tribunal decisions in Scotland

New Court of Session judgment

13 September, 2010

In a new judgment, the Court of Session has considered whether judicial review is available as a means of challenging a decision of the Upper Tribunal in Scotland.

In Eba (AP) v The Advocate General for Scotland [2010] ScotCS CSIH_78 (10 September 2010) the claimant's application for disability living allowance was refused and, with a tribunal having upheld that decision, she applied for permission to appeal to the Upper Tribunal. However the First-tier Tribunal refused permission to appeal, as did the Upper Tribunal and, as result, the claimant applied to the Outer House of the Court of Session for judicial review of the Upper Tribunal's refusal of permission to appeal.

The Outer House of the Court of Session dismissed the claimant's appeal, holding, in broad agreement with the judgment of the High Court in Cart, that decisions of the Upper Tribunal should generally be regarded as final and not subject to review except in exceptional circumstances, and the claimant then appealed to the Inner House of the Court of Session.

* * * * *

Allowing the claimant's appeal, the Lord President rejects the Advocate General's submission that the Outer House of the Court of Session was correct to hold that Upper Tribunal decisions in Scotland were only subject to review in exceptional circumstances. Having highlighted key differences between the English and Scottish legal systems, the Lord President reviews English case law on the parameters of judicial review before concluding -

'Although it may be expressed as a matter of law, it involves, on the face of it, essentially a delimitation by the English courts on policy grounds of the circumstances in which the High Court will entertain judicial review. In Scotland, by contrast, the right of the citizen to invoke the jurisdiction of the Court of Session to control the actings of statutory bodies has never been circumscribed on discretionary or similar grounds .... If parliament wishes to exclude or restrict the supervisory jurisdiction of the Court of Session in particular circumstances, then it should legislate expressly to that effect. We reserve our opinion as to whether, regard being had to inter alia Article XIX of the Union with England Act 1707, such legislation would be constitutional.' (paragraph 60)

NB - the Lord President adds a coda stating that the English Court of Appeal decision in Cart, which held that judicial review of an Upper Tribunal decision was only available in exceptional circumstances, had become available whilst his judgment was in draft and that -

'We note that that court rejected the suggestion that the Upper Tribunal was 'an avatar of the High Court ' (para 19). We also note that, in coming to its view that the grounds of review of a decision of the Upper Tribunal were restricted to the extent there decided, it held that the scope of the jurisdiction was necessarily a matter of law, or of legal or judicial policy (paras 27-8). It does not follow that the ultimate result should be the same for the Court of Session, regard being had to the history and nature of the supervisory jurisdiction in this court.' 
(paragraph 65)

Eba (AP) v The Advocate General for Scotland [2010] ScotCS CSIH_78 is available from the BAILII website.