Cart v The Upper Tribunal , United Kingdom Supreme Court, Judgment, Law, casemine.com

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Appellant (Cart) Richard Drabble QC Charles Banner (Instructed by Bates Wells & Braithwaite LLP)
Respondent James Eadie QC Samuel Grodzinski (Instructed by DWP/DH Legal Services and Treasury Solicitors)
Appellant (MR) Manjit Gill QC Natsai Manyarara Jay Patel (Instructed by Archer Fields Solicitors)
Respondent James Eadie QC Samuel Grodzinski (Instructed by Treasury Solicitors)
Intervener (Public Law Project) Michael Fordham QC Tim Buley (Instructed by Herbert Smith LLP)
Intervener (JUSTICE) Alex Bailin QC Aidan O'Neill QC Iain Steele (Instructed by Freshfields Bruckhaus Deringer LLP)

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Cart v. The Upper Tribunal (Rev 1)

Smart Summary

Factual and Procedural Background

Three linked matters reached the Supreme Court. All involve the same pattern:

Claimant A (“Cart”) challenged a decision of the child-support jurisdiction. The First-tier Tribunal dismissed his appeal and, together with the Upper Tribunal, refused permission to appeal further. His application for judicial review was rejected by the Divisional Court and by the Court of Appeal.
Claimant B (“MR (Pakistan)”) challenged an asylum refusal. After the First-tier and Upper Tribunals declined permission to appeal, he obtained permission to seek judicial review, but the High Court (on a “leap-frog” certificate) dismissed the claim, following the Court of Appeal’s reasoning in Cart.
Claimant C (“Eba”) challenged a refusal of disability living allowance. The Court of Session initially dismissed her judicial-review petition but its Inner House later allowed the petition, prompting a government appeal to the Supreme Court.

In each case the common procedural feature was a refusal by the Upper Tribunal (UT) to grant permission to appeal. The Supreme Court’s present judgment concerns the two English cases; the Scottish appeal is addressed in a separate judgment.

Legal Issues Presented

Whether unappealable decisions of the Upper Tribunal are amenable to judicial review by the High Court at all.
If so, what test should govern the grant of judicial review: (a) only in “exceptional circumstances”; (b) unrestricted review for any alleged error of law; or (c) a middle course based on the statutory “second-tier appeal” criteria.

Arguments of the Parties

Claimants’ Arguments

The UT’s permission refusals should be open to ordinary judicial review for any error of law; limiting review would leave serious legal mistakes uncorrected and undermine the rule of law.
The new tribunal structure changed procedures but not the High Court’s historic supervisory jurisdiction, which Parliament did not expressly oust.
In asylum matters, high stakes and human-rights implications justify full supervisory scrutiny.

Government Department’s Arguments

Because the Tribunals, Courts and Enforcement Act 2007 created a coherent, expert two-tier tribunal system, further judicial review should occur only in rare, truly exceptional cases.
Unlimited review would duplicate work, over-burden courts (especially in immigration cases) and frustrate Parliament’s intention that most errors be corrected internally within the tribunal hierarchy.
A proportionate limit would protect both resources and legal certainty.

Interveners’ Contributions

The Public Law Project proposed retaining review but recognised existing judicial restraint when examining specialist tribunals.
JUSTICE emphasised the constitutional value of supervisory jurisdiction but accepted that some structured limitation could be appropriate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147	Error of law renders a decision a nullity and defeats statutory ouster clauses.	Used to show that, absent clear words, judicial review remains available; also illustrates difficulties in distinguishing “jurisdictional” from other errors.
R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338	High Court’s supervisory role extends to errors of law on the face of the record.	Cited as historical foundation for broad judicial-review control over tribunals.
Re Woodling [1984] 1 WLR 348	Judicial review can correct refusal of leave where a tribunal is bound by earlier, potentially wrong authority.	Example of how review prevents fossilisation of erroneous precedent.
R v Immigration Appeal Tribunal, ex p Bakhtaur Singh [1986] 1 WLR 910	Judicial review of refusal of permission in immigration context.	Illustrated long-standing practice of supervisory intervention in high-stakes asylum matters.
Bone v Mental Health Review Tribunal [1985] 3 All ER 330	Judicial review preferred over case-stated procedure where latter proved inadequate.	Shows courts’ willingness to tailor remedies pragmatically.
R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445	Statutory review can be adequate and proportionate alternative to judicial review.	Relied on to support proportionality analysis.
R (Sivasubramaniam) v Wandsworth County Court [2003] 1 WLR 475	Judicial review should not bypass a coherent statutory appeal scheme save in “very rare” cases.	Formed basis of the “exceptional circumstances” test that lower courts applied.
Sinclair Gardens Investments (Kensington) Ltd v Lands Tribunal [2006] 3 All ER 650	Refusal of permission by specialist tribunal rarely reviewable; possible exceptional factors listed.	Cited by lower courts; Supreme Court concludes it should no longer be followed.
Wiles v Social Security Commissioner [2010] EWCA Civ 258	Suggested applying “second-tier appeal” criteria to judicial-review challenges.	Supreme Court adopts this suggestion as the governing test.
Leech v Deputy Governor of HMP Parkhurst [1988] AC 533	Courts should not refuse jurisdiction solely to avoid workload concerns.	Used to caution against purely “floodgates” reasoning.

Court's Reasoning and Analysis

The Court (majority opinion by Judge Hale, with concurring opinions by other Justices) proceeded in three stages:

No statutory ouster. The 2007 Act does not expressly bar judicial review. Designating the UT a “superior court of record” does not alone remove High Court oversight.
Rejection of two polar positions.
- The “exceptional circumstances” test revives the discredited pre-Anisminic distinction between jurisdictional and non-jurisdictional error and risks leaving serious mistakes uncorrected.
- Unrestricted judicial review would duplicate the tribunal system, ignore Parliament’s restructuring and over-burden limited judicial resources, especially in immigration cases.
Adoption of a middle course. The appropriate threshold mirrors the statutory test for second-tier appeals: judicial review lies only where (a) the case raises an important point of principle or practice, or (b) another compelling reason justifies High Court intervention. This strikes a proportionate balance between the rule of law and efficient use of resources, ensures consistency across all tribunal chambers and prevents the Upper Tribunal from becoming the “final arbiter” of law by default.

The Court noted that procedural reform is desirable and invited the Civil Procedure Rules Committee to streamline applications, favouring single-stage paper consideration unless the court orders otherwise.

Holding and Implications

HOLDING: The Supreme Court dismisses the individual appeals of Claimant A and Claimant B. In future, the High Court may entertain judicial review of an unappealable Upper Tribunal decision only where the applicant can demonstrate that the second-tier appeal criteria are met.

Implications:

Creates a uniform, nationwide threshold for challenging Upper Tribunal permission decisions, replacing the “exceptional circumstances” test and superseding Sinclair Gardens.
Maintains a safety-valve for significant legal errors without inviting routine duplication of tribunal work.
Signals likely procedural amendments to provide a simplified, primarily paper-based route for such applications.
Confirms that the reformed tribunal structure has enhanced status but remains subject to limited supervisory jurisdiction in order to safeguard the rule of law.