In the report by Sir Andrew Leggatt, Report of the Review of Tribunals: Tribunals for Users-One System, One Service the aim of the review was described as:
“The object of this review is to recommend a system that is independent, coherent, professional, cost-effective and user-friendly. Together tribunals must form a system and provide a service fit for the users for whom they were intended.” (my emphasis).
This was to be achieved by the administration of tribunals grouped by subject matter into divisions which should be clear to their users and to be governed by a common set of rules. The second key change related to appeals to a corresponding appellate tribunal (Upper Tribunal) and thence to the Court of Appeal (as a second appeal) together with a limited Judicial Review jurisdiction in respect of decisions which cannot be appealed and in specialist jurisdictions. The two tiered system is designed to have an expert judge or an expert panel at the first tier of expert judicial scrutiny of an administrative decision, for example a Mental Health Tribunal, an expert Immigration or expert social security judge examining both issues of fact, expert evidence and law in respect of an administrative decision to, for example, continue to detain someone in psychiatric hospital for treatment, deny them refugee status or deny them some entitlement to welfare benefits.
The Leggatt recommendations have been introduced by the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”). However, not all tribunals operate within this two tiered system and some tribunals still operate slightly outside this system. For example, under the Safeguarding Vulnerable Groups Act 2006 the appeal is from the Independent Safeguarding Authority to the Upper Tribunal as a 1st Tier of judicial scrutiny and also there is no appeal chamber from a first tier decision of the tribunal concerned with the Criminal Injuries Compensation Scheme, Victims of Overseas Terrorism Compensation Scheme, s 60(1) or (4) of the Freedom of Information Act 2000 or sections 28(4) or (6) of the Data Protection Act 1998 concerning national security certificates which are challenged by way of judicial review.
Key features of tribunals are that:
• tribunals are classified as judicial bodies which operate in a way which distinguish them from other courts;
• tribunals are creatures of statute and their purpose is to determine a person’s legal position in respect of a private law dispute or a public law entitlement, whether initially or on appeal;
• it is given only a narrow and limited jurisdiction;
• the membership are likely to be limited to experts in the jurisdiction, including non-lawyers with relevant knowledge or experience;
• the procedures are likely to be simple, user friendly and to deal with matters quickly and efficiently;
• Independence of parties to the proceedings.
In summary, the tribunal is an expert, independent standing statutory body, available to deal with all those cases within it jurisdiction and easily accessible by users and tend to be inquisitorial in nature rather than adversarial where the rules of evidence are more flexible (see also sections 2(3) and 22(4) TCEA 2007. Now in addition the Upper Tribunal has the power of the High Court and is a court of record, as is the Employment Appeals Tribunal.
Deference to the expert nature of the tribunal and its membership.
Tribunals are inevitably specialised and the Senior President has the duty under TCEA 2007 s 2(3) (c) to have regard to the need for members to be expert in the subject matter of, or the law to be applied in, the tribunal. This may result from the members appointed on account of knowledge, experience or expertise or acquired as a result of acquisition through particular legal and factual issues that arise before the tribunal. The specialism may be related to the relevant law but may also include medical or financial specialism. In theory this should lead to a rapid development of the case law.
As a consequence the Higher Courts respect this specialism but have also sought to control its use.
Sources of deference
Courts and higher tribunals may be required to defer to the decision because the legal structure requires it as in Edwards v Bairstow [1956] AC 14 at 38:
“As I see it, the reason why the courts do not interfere with commissioners' findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the commissioners of greater experience in matters of business or any other matters. The reason is simply that by the system that has been set up the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law.”
Also by reference to assuming they are familiar with basic legal principles and not being too easily satisfied that a tribunal failed to take account of a matter that was not expressly mentioned.
It is based on the specialist knowledge, experience or expertise of a tribunal and applies both the judicial review and on appeal, to substantive law and discretion. It applies to an established scheme and a new scheme.
Deference is shown for interpretation and application of the law by individual decision of the tribunal but reconciled by the courts giving guidance. For example in R v Preston Supplementary Benefits Tribunal ex p Moore [1975] 1 WLR 624, 631 – 632:
“The courts should not enter into a meticulous discussion of the meaning of this or that word in the Act. They should leave the tribunals to interpret the Act in a broad reasonable way, according to the spirit and not to the letter: especially as Parliament has given them a way of alleviating any hardship. The courts should only interfere when the decision of the tribunal is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision: see Cozens v. Brutus [1973] AC 854, 861. Nevertheless, it must be realised that the Act has to be applied daily by thousands of officers of the commission: and by 120 appeal tribunals. It is most important that cases raising the same points should be decided in the same way. There should be uniformity of decision. Otherwise grievances are bound to arise. In order to ensure this, the courts should be ready to consider points of law of general application.
In short, the court should be ready to lay down the broad guide lines for tribunals. But no further. The courts should not be used as if there was an appeal to them. Individual cases of particular application must be left to the tribunals.”
This approach remains valid in respect of appeals (see Bromley LBC v SENT [1999] 3 All ER 587. 594).
Lines of authority and the limits on deference.
Deference is shown for consistent lines of authority, for example with Commissioners in not based on statutory interpretation but on the expertise of commissioners in R v Medical Appeal Tribunal ex p Gilmore [1957] 1 QB 574, 585. In R v National Insurance Commissioner ex p Stratton [1979] QB 361 at 368 – 369 Lord Denning:
“These commissioners are judges, and their decisions are by statute made final: section 117 (1) of the Social Security Act 1975. There is no appeal from their decisions. They give hundreds of decisions on points of law regarding the interpretation of the regulations. They know just how they work…..
I venture to suggest that we should proceed on this principle: if a decision of the commissioners has remained undisturbed for a long time, not amended by regulation, nor challenged by certiorari, and has been acted upon by all concerned, it should normally be regarded as binding. The High Court should not interfere with it save in exceptional circumstances, such as where there is a difference of opinion between commissioners: see Reg. v. National Insurance Commissioner, Ex parte Michael [1977] 1 WLR 109. A recent decision is less binding. It may be brought before the High Court with the very object of getting a ruling on a difficult point. The department itself should do it, if need be. Then the High Court can and should do whatever the justice of the case requires”
Also Lord Justice Bridge at page 382 based on longevity and implied legislative approval.
This approach was approved by the House of Lords in Presho v Insurance Officer [1984] AC 310 at 219 – 320.
However the limit on this deference is that it is based on a consistency of views and it neither applies to divergent views nor if there is a general principle involved (for example in R v National Insurance Commissioner ex p Michael [1977] 1 WLR 109, 112 and 115).
In Cockburn v Chief Adjudication Officer and Secretary of State for Social Security v Fairey [1997] 1 WLR 799, 814 per Lord Slynn:
“It is obviously sensible that the rulings of the commissioners and the practice of administering the scheme which they have laid down and which have been followed over many years should not lightly be interfered with. But if the Court of Appeal, and even more so if your Lordships' House, is satisfied that wrong distinctions have been drawn as a matter of principle which ought not to be followed they are entitled to say so.”
Also in Hichy v Secretary of State for Work and Pensions [2005] 1 WLR 967 [49] per Baroness Hale (endorsed by Lord Hoffman [30]):
“ …First, if the specialist judiciary who do understand the system and the people it serves have established consistent principles, the generalist courts should respect those principles unless they can clearly be shown to be wrong in law.”
Deference to fact finding, specialist knowledge and judicial review powers.
On fact finding this is not accorded deference beyond that of a non-specialist tribunal and the issue is whether the tribunal was entitled to make the finding but again the specialist knowledge or experience may be relevant to the finding of fact.
The Tribunal may use its specialist knowledge or expertise of a panel member which is decisive, and should make that known to the parties. For example in Butterfield and Creasy v Secretary of State for the Defence [2002] EWHC 2247 (Admin) [14]:
“There are problems of procedural fairness here. I will examine the Tribunal's specific reasons for dismissing the appeal later, but I infer that they largely reflect the views and experience of the medical member of the Tribunal. There is a potential problem if a medical member of a tribunal is the only person present with specialist medical knowledge, and he perceives a possible medical objection to the appellant's case, particularly an objection which has not been taken in advance by the Secretary of State and of which the appellant has not had prior notice. If the medical member believes that there is such an objection, plainly he must say so. He is a member of the Tribunal because of his medical expertise, and if he thinks that his medical expertise is relevant in some specific way which has not otherwise been pointed out, he must draw on it in the course of the hearing and the tribunal's deliberations. I do not for a moment suggest that the medical member of the tribunal should in some way suppress his personal expertise and reactions to medical issues which arise. However, if the point which concerns him is a new one and might in itself be decisive, it does seem to me that fairness requires that it be explained to the appellant or to the appellant's representative, and that the appellant should be given a realistic opportunity to consider it. In some cases, though I hope not many, this may require the offer of an adjournment, however inconvenient and irksome that may be.”
In respect of judicial review powers the Courts do not allow those powers to operate differently from courts on account of the specialism of the tribunal and the ordinary principles apply (IBA Healthcare Ltd V Office of Fair Trading [2004] ICR 1364, [51] – [53].)
Cart
The issue which has brought deference into focus is that of permission to appeal from a second tier tribunal and challenges to refusal of permission to appeal to a tribunal. The Court of Appeal has emphasised the significance of a tribunal specialism as to whether an appeal from a second tier tribunal would have a real prospect of success. In Cooke v Secretary of State for Social Security [2002] 3 All ER 279, [16] Lady Hale held:
“It is also important that such appeal structures have a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the Social Security Commissioner will have got it right. The Commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All of this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success.”
Further the issue of deference concerning refusal of permission to appeal by an Appellant Tribunal arises in Judicial Review challenges to this decision (for example in Wiles v Social Security Commissioner and another [2010] EWCA civ 258).
In R (on the application of Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 A.C. 663, which was joined with R (on the application of MR (Pakistan)) v The Upper Tribunal (Immigration &Asylum Chamber) and Secretary of State for the Home Department and followed by Eba v Advocate General for Scotland [2011] UKSC 29 (SC) the Supreme Court held that un-appealable decisions of the Upper Tribunal were subject to judicial review by the High Court only where there was an important point of principle or practice or some other compelling reason for the case to be reviewed which is equivalent to the test for second appeals before the Court of Appeal and applied in JD (Congo) V Secretary of State for the Home Department and others [2012] EWCA Civ 327. These decisions do suggest that there is a departure from deference in respect of decisions on when a decision should be considered for appeal by the Upper Tribunal.
An example can be found in R (on the application of Kuteh) v Upper Tribunal Administrative Appeals Tribunal [2012] EWHC 2196 (Admin) where the Court held allowing a judicial review claim that where a First-tier Tribunal had made findings of misconduct against a mental health nurse, included a finding that he had assaulted a patient, and had upheld his inclusion on the Protection of Children Act list and the Protection of Vulnerable Adults list, the Upper Tribunal's refusal of permission to appeal against the finding of assault amounted to a serious procedural irregularity. The lower tribunal had omitted to consider a significant witness statement and the Upper Tribunal had failed to consider that that omission might vitiate the decision.
However, in R (on the application of HS & Ors) v Upper Tribunal (Immigration and Asylum Chamber ) & Secretary of State for the Home Department [2012] EWHC 3126 (Admin) Mr Justice Charles on refusing an application for judicial review of a the refusal of the Upper Tribunal to grant permission to appeal an immigration judge held in consideration of Kuteh that Cart decided that, at the permission stage, the court was to decide whether the second-tier appeals criteria were satisfied, and not whether it was arguable that they would be satisfied at the substantive hearing; therefore, if permission was granted on that basis, the permission test was spent and was no longer the test to be applied at the substantive hearing. The grounds for a successful review in the instant case were not limited to the second-tier appeals criteria, and the instant court had to apply the well-established grounds for judicial review in determining whether the decision of the Upper Tribunal refusing permission to appeal should be set aside. Further it became apparent that the 59th update to the CPR introduced a procedure in respect of applications for judicial review of non-appealable decisions of the Upper Tribunal following Cart. CPR r.54.7A(7) supported the conclusion that, as with permission to appeal, once the second-tier appeals criteria had been satisfied at the permission stage, they were spent, and at the hearing for which permission had been given, the judicial review court had to consider the arguable errors of law
Is it time to change and is deference justified
Deference to the decision making of the tribunals is justified based on the purpose for their establishment. It appears well justified in terms of “administrative/public law” decisions where there are often complex factual and legal issued to be revisited and decided on where the expertise of the tribunal is essential to a fair and swift outcome which generalist courts cannot effectively adjudicate on.
The difficulty is that the tribunal system is not completely a One System, One Service as envisaged by Leggatt. The concern on the issue deference of the Higher Courts, especially in respect of appeals, is ensuring that there is effective judicial scrutiny of the lawfulness and fairness of decision making in the expert tribunals while preserving the value of their expertise.
