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Eba v Advocate General for Scotland (Scotland)
Factual and Procedural Background
The Appellant sought disability living allowance from the Agency on 11 February 2008. Her claim was refused, and the First-tier Social Entitlement Chamber dismissed her appeal on 27 January 2009. She then applied to the Upper Tribunal for permission to appeal; on 6 February 2009 Judge DJ May QC (sitting in the Upper Tribunal) refused permission. Because section 13(1) and 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) designate such a refusal an “excluded decision,” no statutory appeal lay to the Court of Session. The Appellant therefore petitioned the Court of Session for judicial review.
The Lord Ordinary (Judge Glennie) dismissed the petition: [2010] CSOH 45. On reclaiming motion, the First Division (Judge Hamilton P, Judge Kingarth and Judge Brodie) reversed that decision and held that the Upper Tribunal’s refusal of permission was reviewable without policy-based restriction: [2010] CSIH 78. The Defendant (Advocate General for Scotland) appealed to the Supreme Court, which heard the case with R (Cart) and MR (Pakistan) because all three raised identical questions about the scope of judicial review of “excluded decisions.”
Legal Issues Presented
- Whether an Upper Tribunal decision refusing permission to appeal (an “excluded decision”) is amenable to judicial review in Scotland.
- If reviewable, whether the grounds of review should be restricted (as in Cart in the Court of Appeal) or remain as broad as the ordinary Scottish supervisory jurisdiction.
- Whether the Scottish approach should align with the “second-tier appeal” criteria (important point of principle or other compelling reason) adopted for England and Wales.
Arguments of the Parties
Appellant's Arguments
- All unappealable Upper Tribunal decisions are subject to the Court of Session’s supervisory jurisdiction on the same unlimited grounds that apply to public tribunals generally.
- The Scottish courts have never curtailed judicial review on discretionary or policy grounds; only express statutory language can do so.
- Restricting review would fracture the consistency of Scots law and re-introduce a discredited distinction between jurisdictional and non-jurisdictional errors.
Defendant's Arguments
- Parliament intended the Upper Tribunal to be reviewable in Scotland only to the limited extent recognised in England and Wales.
- Resource pressures, especially from immigration and asylum cases, justify narrowing judicial review by adopting the “second-tier appeal” test.
- The Court of Session can and should tailor its supervisory jurisdiction to reflect the expertise and finality envisaged for the Upper Tribunal.
Intervener (Lord Advocate) Arguments
- No pressing need exists to restrict review grounds; the Court of Session can adapt the intensity of review case-by-case.
- Any resource concerns are matters for the Scottish Government, not for curtailing legal rights.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Cart) v Upper Tribunal [2010] EWCA Civ 859 | Narrowed judicial review of Upper Tribunal to excess of jurisdiction or procedural nullity | Rejected as too restrictive; used as contrast to preferred standard |
| MR (Pakistan) v Upper Tribunal [2010] EWHC 3558 (Admin) | Applied Cart reasoning to Immigration & Asylum Chamber | Treated together with Cart; ultimately not followed |
| Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 | Abolished distinction between jurisdictional and non-jurisdictional errors of law | Central authority supporting broad supervisory jurisdiction |
| R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475 | English case limiting review of county-court decisions | Cited as model adopted in Cart; not accepted for Scotland |
| West v Secretary of State for Scotland 1992 SC 385 | Defines scope of Scottish supervisory jurisdiction; parity with English law | Relied on to demonstrate existing breadth and flexibility |
| R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574 | Supervisory jurisdiction cannot be ousted except by clear words | Used to show section 3(5) of 2007 Act did not impliedly exclude review |
| Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 | Classic unreasonableness standard | Acknowledged as applicable in Scotland |
| Watt v Lord Advocate 1979 SC 102 | Suggested Court could not correct intra vires error of law | Expressly disapproved; declared incompatible with Anisminic |
| Brown v Hamilton District Council 1983 SC (HL) 1 | Affirmed no substantial difference between English and Scots review grounds | Cited to support alignment of approaches |
| Tehrani v Secretary of State for the Home Department 2007 SC (HL) 1 | Competent applications cannot be refused on discretion alone | Supports open access to judicial review |
| Y v Secretary of State for the Home Department 2011 SLT 508 | Low threshold for granting first orders in Scotland | Highlighted practical need for new filtering in Upper Tribunal cases |
| McDonald v Burns 1940 SC 376 | Illustrates tailoring review to ecclesiastical bodies | Example of flexible supervisory jurisdiction |
| Dunbar v Scottish County Investments 1920 SC 201 | Clear words required to oust jurisdiction | Supports Appellant’s position on statutory exclusion |
| Cooke v Secretary of State for Social Security [2002] 3 All ER 278 | Cautious approach to granting permission because of tribunal expertise | Analogy for restrained review |
| R (Wiles) v Social Security Commissioner [2010] EWCA Civ 258 | Courts should not be eager to find error in refusal of leave | Used to justify deference to specialist tribunals |
| Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 | Interprets “important point of principle or practice” test | Forms benchmark for new Scottish standard |
| Cramp v Hastings Borough Council [2005] EWCA Civ 1005 | Explains “compelling reason” limb of second-appeal criteria | Cited to illustrate operation of benchmark |
| Sokha v Secretary of State for the Home Department 1992 SLT 1049 | Petition may be dismissed at first-order stage | Guides filtering mechanism under new approach |
| Butt v Secretary of State for the Home Department (1995) GWD 16-905 | Same principle as Sokha | Cited for first-order practice |
Court's Reasoning and Analysis
Judge Hope began by recognising that the 2007 Act does not expressly exclude judicial review. The question therefore became how the Court of Session should exercise its inherent supervisory power over “excluded decisions.” The Court analysed three potential models, mirroring those considered in the linked English appeals:
- Adopt the extremely narrow Cart/Sivasubramaniam test (pre-Anisminic jurisdictional excess or procedural nullity).
- Maintain wholly unrestricted Scottish judicial review.
- Limit review to the “second-tier appeal” criteria: an important point of principle or practice, or some other compelling reason.
Option 1 was rejected as inconsistent with modern authority and as re-introducing the discredited jurisdictional distinction, which would fracture Scottish doctrine. Option 2 was also discarded as disproportionate in light of the Upper Tribunal’s expertise, Parliament’s intention to create a self-contained appellate system, and the parallel restrictions already imposed on second appeals by Rule 41.59.
Adopting Option 3, the Court held that aligning judicial review with the second-tier criteria achieves proportionality and respects both the rule of law and the need for finality. Key steps in the reasoning included:
- Compatibility with common law. Scottish supervisory jurisdiction is flexible and can be moulded to different bodies; applying a higher threshold is within that tradition.
- Statutory harmony. Rule 41.59 (mirroring section 13(6) of the 2007 Act) already restricts second appeals on the same grounds; judicial review should not circumvent that policy choice.
- Resource considerations. A filtering test mitigates the burden of unmeritorious petitions without closing the Court’s doors to significant errors.
- Consistency with England and Wales. The Supreme Court’s decision in Cart (Supreme Court) adopts the same benchmark; unity across jurisdictions avoids forum shopping.
- Overruling obsolete authority. The Court expressly disapproved Watt v Lord Advocate insofar as it denied review for intra vires errors of law, affirming the authority of Anisminic.
The Court added guidance for lower courts: petitions challenging excluded decisions should be screened at the “first-order” stage, and only those raising an important point of principle/practice or a compelling reason (such as evident perversity or denial of a fair hearing) should proceed.
Holding and Implications
HOLDING: The appeal by the Defendant was dismissed. The interlocutor of the First Division was affirmed, and the matter was remitted to the Lord Ordinary to determine whether the Appellant’s petition satisfies the newly articulated standard.
Implications: The Supreme Court has aligned Scottish judicial review of Upper Tribunal “excluded decisions” with the “second-tier appeal” test used in England and Wales. Petitioners retain a right of access to the Court of Session, but only cases presenting an important point of principle/practice or another compelling reason will progress. The decision overrules earlier Scottish dicta limiting review to jurisdictional excess, confirms the applicability of Anisminic, and provides a practical filtering mechanism that balances judicial oversight with finality and judicial economy. No entirely new precedent is set, but the ruling harmonises Scottish procedure with wider UK jurisprudence and offers authoritative clarification for future petitions.
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