[2025] UKUT 181 (AAC)

The Applicant’s case is not one which is caught by rule 37(2)(d) of the Tribunal Procedure (First-Tier) (Social Entitlement Chamber) Rules 2008 (“the 2008 Rules”). Rule 37(2)(d) concerns “some other procedural irregularity in the proceedings” (emphasis added). Rule 37(2)(d) ought to be construed alongside the other conditions in Rule 37(2), which include (a) documents not being sent or received by a party/the tribunal, (b) a party or party’s representative not being present at the hearing.

Rule 37(2)(d) does not extend to a representative’s failure to put allegations in cross-examination. A procedural irregularity cannot be connected to the assessment of evidence and finding of fact. Both are wholly distinct and should not be treated the same way.

Further or alternatively, it is well established that the alternative remedy principle in judicial review is a discretionary bar, not a jurisdictional bar. As R (Parker) v Magistrates’ Court at Teeside [2022] EWHC 358 (Admin) identified, the Court retains jurisdiction notwithstanding an applicable, or even unused, remedy. Relevant factors include that Rule 37 is not framed as an exclusive remedy and that no prejudice has been identified by CICA (nor has any been sustained) by the bringing of the claim by judicial review. Permission had been granted without the issue being raised by CICA.

In any event, taking CICA’s case at its highest, the only ground which expressly mentions procedural unfairness is Ground 1. Therefore, even at its highest, CICA’s preliminary point would not dispose of the judicial review.