Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 127 (AAC)

Fecha: 11-Abr-2024

The legislative framework

31.

Section 15(1) of the Tribunals, Courts and Enforcement Act 2007 vests the Upper Tribunal with a judicial review jurisdiction. By virtue of section 15(2)(a), these powers can only be exercised if four specific conditions are met, as stipulated in section 18.

32.

Section 18 in turn materially provides as follows:

Limits of jurisdiction under section 15(1)

18.

— (1) This section applies where an application made to the Upper Tribunal seeks (whether or not alone)—

(a)

relief under section 15(1), or

(b)

permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1).

(2)

If Conditions 1 to 4 are met, the tribunal has the function of deciding the application.

(3)

If the tribunal does not have the function of deciding the application, it must by order transfer the application to the High Court.

(4)

Condition 1 is that the application does not seek anything other than—

(a)

relief under section 15(1);

(b)

permission (or, in a case arising under the law of Northern Ireland, leave) to apply for relief under section 15(1);

(c)

an award under section 16(6);

(d)

interest;

(e)

costs.

(5)

Condition 2 is that the application does not call into question anything done by the Crown Court.

(6)

Condition 3 is that the application falls within a class specified for the purposes of this subsection in a direction given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005 (c. 4).

(7)

The power to give directions under subsection (6) includes—

(a)

power to vary or revoke directions made in exercise of the power, and

(b)

power to make different provision for different purposes.

(8)

Condition 4 is that the judge presiding at the hearing of the application is either—

(a)

a judge of the High Court or the Court of Appeal in England and Wales or Northern Ireland, or a judge of the Court of Session, or

(b)

such other persons as may be agreed from time to time between the Lord Chief Justice, the Lord President, or the Lord Chief Justice of Northern Ireland, as the case may be, and the Senior President of Tribunals.

33.

So far as Condition 3 (see section 18(6)) is concerned, paragraph 2 of the Lord Chief Justice’s Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 WLR 327 provides as follows:

The Lord Chief Justice hereby directs that the following classes of case are specified for the purposes of section 18(6) of the 2007 Act:

(a)

any decision of the First-tier Tribunal on an appeal made in the exercise of a right conferred by the Criminal Injuries Compensation Scheme in compliance with section 5(1) of the Criminal Injuries Compensation Act 1995 (appeals against decisions on reviews); and

(b)

any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11(5) of the 2007 Act.

34.

Plainly Dr Kirkham’s challenge to Judge O’Connor’s ruling does not fall within paragraph 2(a) of the Practice Direction. The question then is whether the challenge falls within the category of case identified by paragraph 2(b). If it does, then the Upper Tribunal has jurisdiction to hear and determine his application for permission to apply for judicial review. If it does not, the Upper Tribunal necessarily lacks jurisdiction and must by order transfer the application to the High Court (section 18(3)).