R (RB) v First Tier Tribunal (Review) (RB)

Factual and Procedural Background

The Applicant, a 75-year-old detained patient under a hospital and restriction order following a conviction for indecent assault, suffers from a persistent delusional disorder and poses a significant risk to the public. His detention is under the Mental Health Act 1983. The Applicant sought a conditional discharge to move to a registered care home with conditions restricting his liberty, including supervised leave and medication compliance.

Initially, a mental health review tribunal refused the conditional discharge application in 2007, holding that conditions involving deprivation of liberty were unlawful if imposed for public protection rather than the patient's own benefit. Subsequently, in 2009, a differently constituted First-tier Tribunal panel granted conditional discharge subject to specific conditions restricting the Applicant's liberty but concluded these did not amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights, or that valid consent prevented such deprivation from breaching Convention rights.

The Secretary of State applied for permission to appeal, leading to a review by a Regional Tribunal Judge who set aside the First-tier Tribunal's April 2009 decision, concluding the conditions did amount to deprivation of liberty and that the Applicant's consent was irrelevant. The matter was to be re-decided by a fresh panel. Subsequent procedural applications by the Applicant to set aside this review decision and to appeal were rejected for lack of jurisdiction. Permission to apply for judicial review was granted by the Upper Tribunal.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by granting conditional discharge subject to conditions amounting to a deprivation of liberty.
2. Whether the Applicant's consent to restrictive conditions can negate a deprivation of liberty under Article 5 of the European Convention on Human Rights.
3. The proper scope and exercise of the First-tier Tribunal's power to review its own decisions under section 9 of the Tribunals, Courts and Enforcement Act 2007.
4. The jurisdictional limits on appeals and reviews relating to First-tier Tribunal decisions and the role of the Upper Tribunal in such matters.

Arguments of the Parties

Appellant's Arguments

• The reviewing judge should have granted permission to appeal rather than setting aside the original decision.
• If setting aside was appropriate, the judge should have re-decided the case himself rather than referring it to a new panel.
• The original decision raised legitimately contentious legal issues not clearly favoring the Secretary of State.

Respondent's Arguments

• The reviewing judge was entitled to find a clear error of law in the original decision and to set it aside accordingly.
• Referring the matter to a fresh panel for re-decision was appropriate to allow full consideration of all relevant facts and issues.
• The First-tier Tribunal's power of review involves discretion and judgment, and it may be preferable to have an authoritative decision from the Upper Tribunal after further consideration.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the statutory power of the First-tier Tribunal to review its own decisions under section 9 of the 2007 Act and the procedural rules limiting that power. It emphasized that review should only be exercised in clear cases of legal error to avoid encroaching on the Upper Tribunal’s appellate function. The Court found that the reviewing judge’s decision to set aside the original First-tier Tribunal decision was based on an overbroad view of the law and insufficient regard to the need for clear error.

The Court considered the relevant case law on conditional discharge and deprivation of liberty, noting that the distinction between restriction and deprivation of liberty is a matter of degree and intensity. It found that the Secretary of State’s argument that the conditions imposed amounted to deprivation of liberty was arguable but not clearly established. The Court also highlighted that the Applicant’s consent to the conditions might have significance, a point deserving further consideration.

Furthermore, the Court underscored the procedural irregularities and jurisdictional limits surrounding appeals and reviews, concluding that the reviewing judge had erred in law by setting aside the May decision and wrongly refusing permission to appeal. The Court substituted a decision that restored permission to appeal against the original First-tier Tribunal decision.

Holding and Implications

The Court QUASHED the July review decision and substituted a decision setting aside the May review decision insofar as it set aside the original April decision. It granted the Secretary of State permission to appeal the original First-tier Tribunal decision dated 24 April 2009.

The direct effect is that the Secretary of State may proceed with an appeal against the original conditional discharge decision. The case will be reconsidered within the appellate framework rather than through repeated reviews by the First-tier Tribunal. No new precedent was established; rather, the decision clarified the proper exercise of the First-tier Tribunal’s review powers and the procedural limits on appeals and reviews under the 2007 Act.