[2023] UKUT 177 (AAC)

The decision in Point West is well-known in the social entitlement jurisdiction, hence its appearance in vol.3 of the Social Security Legislation. It does not, however, appear to have had wide currency in the special educational needs context, perhaps because it was a decision on appeal from the Upper Tribunal (Lands Chamber) in the context of a service charge dispute rather than the Health, Education and Social Care Chamber. It is therefore opportune to set out what it says about the proper scope of the power to review a decision (or part of a decision) and the need for finality in litigation.

As to the first point, Lewison LJ said towards the end of his judgment:

“46.

The exercise of the power to review a decision of the FTT was considered in R (RB) v First-tier Tribunal (Review)[2010] UKUT 160 (AAC) by a strong panel of the UT (Administrative Appeals Chamber) presided over by the then Senior President of Tribunals, Carnwath LJ. They held:

i)

that the power of review on a point of law is intended, among other things, to provide an alternative remedy to an appeal. In a case where the appeal would be bound to succeed, a review will enable appropriate corrective action to be taken without delay;

ii)

It was not intended that the power of review should enable the FTT to usurp the UT's function of determining appeals on contentious points of law. Nor was intended to enable a later FTT judge or panel, or the original FTT judge or panel on a later occasion, to take a different view of the law from that previously reached, when both views are tenable. Both these considerations demonstrated that if a power of review is to be exercised to set aside the original decision because of perceived error of law, this should only be done in clear cases;

iii)

There were occasions when it would be desirable for a case to be reconsidered by the FTT so that further findings might be made even if it was likely to go to the UT eventually.

iv)

The key question was what, in all the circumstances of the case including the degree of delay that may arise from alternative courses of action, would best advance the overriding objective of dealing with the case fairly and justly.

47.

Thus the primary purpose of the power to review is to avoid an unnecessary appeal to the UT, where the FTT has made an obvious error of law. In this context an "error of law" would undoubtedly include a case in which the FTT had reached a factual conclusion which had no evidence to support it; or which was contrary to the only reasonable conclusion on the evidence. In this context a point of law is widely defined. In Railtrack plc v Guinness Ltd[2003] EWCA Civ 188, [2003] 1 EGLR 124 at [51] Carnwath LJ said:

"This case is no more than an illustration of the point that issues of "law" in this context are not narrowly understood. The Court can correct "all kinds of error of law, including errors which might otherwise be the subject of judicial review proceedings ... Thus, for example, a material breach of the rules of natural justice will be treated as an error of law. Furthermore, judicial review (and therefore an appeal on law) may in appropriate cases be available where the decision is reached "upon an incorrect basis of fact", due to misunderstanding or ignorance … A failure of reasoning may not in itself establish an error of law, but it may "indicate that the tribunal had never properly considered the matter…and that the proper thought processes have not been gone through."

48.

But as the UT held in Vital Nut Co Ltd v HMRC[2017] UKUT 192 (TCC), a review is not an occasion on which the FTT can reconsider the whole case. They said:

"(7)

Of course, the fact that the 2007 Act and FTT Rules say nothing about the substance of a review of a decision once the "gateway" requirements are met does not mean that the FTT can – through the review – re-write its original decision in an unfettered way. In JS v Secretary of State for Work and Pensions[2013] UKUT 100 (AAC), the Upper Tribunal made this clear. The Upper Tribunal conducted a thorough review of the relevant authorities, which we adopt and do not repeat.

(8)

We consider the position, as regards the FTT, to be as follows: (a) The purpose of the review is clarificatory. The process is intended to give the FTT a second chance to provide adequate reasons for its decision without the inconvenience that might be involved were the Upper Tribunal to allow a reasons challenge and then have to remit the case … (b) The FTT should avoid the temptation to advance arguments in defence of its decision and against the grounds of appeal. The FTT should not engage or appear to engage in advocacy rather than adjudication ...

(9)

In short, whilst it is perfectly permissible for the FTT to use the review process to clarify what has already been decided, the FTT should refrain from seeking to justify its decision on other, even better, grounds or from seeking to defend its decision in advance from an attack that is anticipated in an appeal." (Original emphasis)

49.

I agree, subject to one qualification. If, having considered the grounds of appeal the FTT is satisfied that that one or more of the grounds are likely to succeed, it may set aside its decision (or part of its decision) and re-decide the matter. That may require the FTT to promulgate a decision based on different grounds in relation to that part of the decision that it has set aside.

50.

Mr Dovar relied on the power given to the FTT by section 9 (8) of the 2007 Act to make further findings of fact. But in my judgment that does not give the FTT carte blanche to re-open all its factual findings …”.

As to the second point, he said

“53.

As far as the ground on which the FTT eventually absolved the liability of the leaseholders to pay anything is concerned, I do not consider that the FTT ought to have allowed the leaseholders to take an entirely new point on a review. In so doing, the FTT (and for that matter the UT) lost sight of the important principle of finality in dispute resolution. That principle was endorsed in ringing tones by Lord Wilberforce in The Ampthill Peerage case [1977] AC 547, 569:

"English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."

54.

The importance of finality, even in tribunal proceedings, was emphasised by Elias LJ in Ministry of Justice v Burton[2016] EWCA Civ 714, [2016] ICR 1128 which concerned the power of an employment tribunal to review its own decision where it was necessary in the interests of justice. He said at [21]:

"An employment tribunal has a power to review a decision "where it is necessary in the interests of justice": see rule 70 of the Employment Tribunals Rules of Procedure 2013. This was one of the grounds on which a review could be permitted in the earlier incarnation of the rules. However, … the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality … which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray & Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review. In my judgment, these principles are particularly relevant here." (Emphasis added)

55.

At [25] he added that:

"… to allow a case to be reopened in order for further argument or cross-examination would undermine the important principle of finality. Moreover, if a party wished to adduce more evidence, as again seems likely if the review application had been granted, that would conflict with the principle that it will only be in the interests of justice to allow fresh evidence to be introduced on review if the well known principles in Ladd v Marshall[1954] 1 WLR 1489 have been satisfied. The first of these is that the evidence could not have been obtained for the original hearing. Plainly that would not be the case here."

56.

The new point that the FTT entertained was not consequential on a review of that part of the decision that the FTT had decided to review. It was, as both sides acknowledged, a new and free-standing point. Nor was it a ground of appeal against the original decision. It was not, therefore, a case like that postulated in Scriven where setting aside a mistaken legal conclusion necessarily opened up a line of factual enquiry which the tribunal had erroneously not undertaken. Nor was it a case of obvious error, as the decision of the UT on the same point plainly shows. Dealing with cases "fairly and justly" (which is part of the overriding objective in rule 3 (1) of the tribunal rules) includes respecting the principle of finality: see Sainsbury's Supermarkets Ltd v Visa Europe Services LLC [2020] UKSC 24 at [239]. Far from clarifying what it had already decided (as Vital Nut expressed it), the FTT in effect reopened the question of liability, and re-decided the case on what appeared to it to be "even better" grounds. In my judgment it should not have done so …

57.

In addition, although it is possible for a new point of law to be taken on an appeal there are well-settled principles on which the court acts. They have been set out recently in Singh v Dass[2019] EWCA Civ 360. One of those principles is that permission to take a new point will not generally be granted where the new point would have affected the course of the evidence in the lower court.”

Finally, he explained that

“60.

Section 9 (11) of the 2007 Act makes it clear that, in the case of a review, the original decision and the decision on review are separate decisions. The only decision under appeal to the UT was the review decision.”