[2025] UKUT 2 (LC)

The remainder of this decision is all about “review”.

It is essential to keep in mind that “review” is used to describe two different activities. I have already referred to section 9 of the 2007 Act at paragraph [35] above. It provides that “The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1)”. That is the first type of review and its most significant feature is that it is undertaken by the FTT itself.

The second type of review is “judicial review”. Judicial review is described in the Administrative Court Judicial Review Guide as “the procedure by which an individual, company or organisation can challenge the lawfulness of a decision or other conduct of a person or body whose powers are governed by public law”. The FTT is such a body. Judicial review is undertaken in the Administrative Court, a branch of the High Court, and in certain limited circumstances in the Upper Tribunal. A claim for judicial review can only be brought with the permission of the reviewing Court or Tribunal. One of the ways in which judicial review is distinct from a review under section 9 of the 2007 Act is that judicial review involves scrutiny of the lawfulness of a decision by a different court or tribunal from the one which made the decision.

As the Administrative Court Judicial Review Guide explains (at paragraph 6.3.3) judicial review is a “remedy of last resort”. If the Court finds that the claimant has (or had) an adequate alternative remedy, it will generally refuse permission to apply for judicial review.

Under section 11(1), 2007 Act, there is a right of appeal to this Tribunal on any point of law arising out of most decisions of the FTT, including a decision on an appeal against a financial penalty under section 249A, Housing Act 2004. But there is no right of appeal against an “excluded decision”.

Excluded decisions of the FTT cannot be appealed but are subject to judicial review. But the FTT may sometimes make an excluded decision in the course of arriving at a decision which is not an excluded decision. Where such an excluded decision has been made but the claimant has a right of appeal against the subsequent decision of the FTT, it will be necessary to consider the sufficiency of an appeal as a method of providing the claimant with redress, including against the excluded decision. If an appeal would be an adequate alternative remedy permission to apply for judicial review of the excluded decision is likely to be refused.

The FTT’s review power is governed by section 9 of the 2007 Act to which I have already referred, and by rule 55 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (the 2013 Rules). The substance of the power is in section 9, and it cannot be understood or properly applied by reference only to rule 55. That is because section 9(4)-(5) specifies the action that may be taken in the light of the review i.e. correct accidental errors, amend reasons given for the decision, or set the decision aside and then either redecide the matter or refer it to the Upper Tribunal.

Rule 55(1) is as follows:

It can be seen that, by rule 55(1), a review may only be undertaken if two conditions are satisfied. The first is that there must have been an application for permission to appeal. This limitation excludes the use of the power on the FTT’s own initiative which would otherwise be permitted by section 9(2)(a). If the FTT has received an application for permission to appeal it is required by rule 53(1) to consider whether to review its decision. There is no requirement that a specific application for a review must have been made by one of the parties, but an application for permission to appeal is essential.

The second condition is that the FTT must be satisfied that a ground of appeal is likely to succeed. If the FTT considers that its decision was correct and that an appeal is not likely to succeed, whether on substantive or procedural grounds, it has no power to review its decision. In that event it may not take either of the actions in section 9(4)(b) or (c), by setting aside its decision or giving amended reasons (the power to correct accidental errors is also available separately under rule 50, and where that power is exercised the condition in rule 55(1)(b) need not be satisfied).

As the Court of Appeal explained in Point West GR Ltd v Bassi [2020] 1 WLR 4102, the purpose of the power of review is to allow the FTT to avoid the need for an appeal to the Upper Tribunal in the case of clear errors. Before it undertakes a review it is necessary for the FTT to identify “the matter in [the] case” which it proposes to review, as section 9(1) does not authorise an open ended reconsideration of a decision, but only a focussed examination of whether a specific feature of its reasoning or conduct of a case is likely to be reversed on appeal: “a review is not an occasion on which the FTT can reconsider the whole case” (Point West, at [48]).

In Point West Lewison LJdrew on R (RB) v First-tier Tribunal [2010] MHLR 192, a decision of the Upper Tribunal (Administrative Appeals Chamber) presided over by the then Senior President of Tribunals, Carnwath LJ. In RB the Tribunal referred to paragraph 100 of the explanatory notes to the 2007 Act which stated that:

“Sections 9 and 10 provide powers for the First-tier and Upper Tribunals to review their own decisions without the need for a full onward appeal and, where the tribunal concludes that an error was made, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal.”

In RB, the Tribunal placed firm principled limits around the power of the FTT to undertake a review, which were summarised and approved in Point West, at [46]. The Tribunal 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 it 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.”

Rule 55(1) restricts the power of review to cases where there has been an application for permission to appeal and prevents the FTT from undertaking a review on its own initiative. Given that restriction it must have been intended that the power would only be exercisable where one of the parties had sought permission to appeal on the point on which the FTT’s decision was clearly wrong. It cannot have been intended that an application for permission to appeal would give the FTT licence to review its decision on a matter which was not challenged in the application.

The action which the FTT may take when it has decided to review a decision includes amending the reasons given for the decision (section 9(4)(b)). The interpretation and application of that power was considered by a three judge panel of the Upper Tribunal (Administrative Appeals Chamber) in JS v Secretary of State for Work and Pensions [2013] UKUT 100 (AAC). The tribunal procedural rules which were under consideration in that casewere the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 which deal with the power of review in rule 40, the effect of which is not materially different from rule 55 of the 2013 Rules.

The Tribunal in JS considered the significant restrictions on the power to amend the reasons for a decision following a review. It referred, at [34]-[35], to cases decided on appeals from employment tribunals where a similar power had been exercised:

“[34] […] Those decisions make clear that the power to give additional reasons is only to be exercised exceptionally and with safeguards. Mummery LJ gave a clear and helpful statement on the approach to be taken in Woodhouse School v Webster [2009] ICR 818. He first explained the purpose of the procedure:

In Brewer v Mann [2012] EWCA Civ 246 the Court of Appeal had previously warned against the temptation of a judge or tribunal seeking to improve on their original reasons when faced with an application for permission to appeal:

“31.

… where a judge has received no request from the parties to reconsider his judgment or add to his reasons, and has not demonstrated the need in conscience to revisit his judgment, but on the contrary has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part.”

The Tribunal in JS, at [36], quoted that passage and considered that the same restriction must be applied to the power in section 9(4) to give amended reasons: “One of the limits on the power to supplement reasons is that it must not be used to correct defective reasoning or to provide a commentary on the grounds of appeal.” 

The same concern underlies the Tribunal’s interpretation of section 9(4)(b), at [37]-[43], from which I take the following key points:

The Tribunal in JS concluded that the power to amend a decision “is limited to cases in which it would be proper to amend the reasons rather than set aside the decision” and where there is some “objective reason to believe that something has been omitted from the original reasons”. It gave as examples of permissible amendments a case where an issue had been expressly raised and explored at the hearing, but had not been mentioned in the decision, or where a passage in a decision was ambiguous. In such cases it would be clear that something had gone wrong with the composition of the reasons. An example of an impermissible amendment would be where a passage gave a poor explanation of a tribunal’s analysis of a piece of evidence. In such a case, it would not be self-evident that something had gone wrong, and there would be an unavoidable risk that the judge would drift into supplementing the tribunal’s actual reasons and, perhaps, into justification.

Each of these considerations is of equal relevance to the exercise of the power of review in the Property Chamber.

The final point of general significance in the Tribunal’s decision in JS is its consideration of the scope of the right of appeal in a case where, following a review by the FTT, it has added additional reasons to its own decision, relying on the power in section 9(4)(b). It will be remembered that section 11(1), 2007 Act provides a right of appeal to the Upper Tribunal on any point of law arising from a decision of the FTT “other than an excluded decision”. Section 11(5) lists a series of decisions which are excluded decisions. Among these are the following, at section 11(5)(d):

“(d)

a decision of the First-tier Tribunal under section 9—

(i)

to review, or not to review, an earlier decision of the tribunal,

(ii)

to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,

(iii)

to set aside an earlier decision of the tribunal, or

(iv)

to refer, or not to refer, a matter to the Upper Tribunal,”

In JS, at [60], the Tribunal explained that on appeal, the Upper Tribunal has jurisdiction to consider whether additional reasons were properly added under the review power. Two explanations were given for that view. First, because a decision to amend reasons is not one of those listed as excluded in section 11(5)(d). Secondly, because on an appeal for error of law a party is entitled to rely on any ground for judicial review: MT (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 at [73].  The Tribunal in JS allowed an appeal against the FTT’s decision to add additional reasons to its decision, because the original reasons had been tolerably clear, and the additional reasons were an impermissible commentary on the grounds of appeal. It then determined and allowed the appeal against the decision of the FTT in its original form.

It is convenient to begin with the claim for judicial review. In his skeleton argument Mr Calzavara submitted that the review conducted by the FTT was outside the legitimate scope of the power in section 9 and rule 55(1). I agree.

When it considered the Council’s application for permission to appeal the FTT expressed no doubt about its interpretation of the policy. On the contrary, in paragraph 6 of its second decision it said specifically that it had reconsidered its construction in the light of the grounds of appeal and remained of the view that its approach was correct. It nevertheless considered it right to grant permission to appeal because the contrary view was arguable. That should have been the end of any thought of conducting a review. If the FTT considered that it had reached the right conclusion for the reason it had explained in its original decision, it could not have believed that an appeal against its decision was likely to succeed so the condition in rule 55(1)(b) was clearly not satisfied.

The FTT nevertheless decided to provide an additional reason for its decision, purportedly under the power of review. In its second decision it explained that it was doing so “so that all matters are before the Upper Tribunal without the need for a cross-appeal”. There are three further fundamental objections to that course of action.

First, the additional reasoning was not provided to make good any inadequacy in the expression of its original decision; it was to supply a reason which the FTT had consciously chosen not to consider when it reached its original conclusion. It did not “amend reasons given for the decision”, as section 9(4)(b) contemplates, but instead gave a new reason which had been no part of the decision. That was not a legitimate use of the power of review.

Secondly, the additional reason was not provided in response to any of the grounds of appeal advanced by the Council, with a view to removing the need for an appeal. It was provided to bolster the decision against the possibility that an appeal against the original reasoning might succeed. That again was not a legitimate use of the power of review because, in the absence of a relevant ground of appeal, the FTT was deciding to review its decision on its own initiative.

Thirdly, the additional reason was not supported by any explanation why it would independently justify allowing the appeal and reducing the penalty to the figure previously determined by the FTT. There is no suggestion in the original decision that a point had been taken by MPL about the policy having been “too rigid”, and Mr Calzavara told me he had no recollection of having addressed the FTT on that topic. The FTT did not tell the parties it intended to review its decision or amend its reasons so it received no submissions from either of them before it supplemented its reasoning. That was procedurally unfair and contrary to the approach recommended by the Upper Tribunal in JS.

The difficulty for Mr Calzavara in the judicial review is that all of these points could have been taken on an appeal against the FTT’s decision to amend its decision. Mr Calzavara submitted that the FTT’s decision to review its first decision was an excluded decision because it fell within section 11(5)(d)(i), 2007 Act. It could not be the subject of an appeal. I agree. But the decision to amend the reasons included in the FTT’s decision as a consequence of the review was not an excluded decision, for the reasons given in JS, at [60], with which I agree.

Mr Calzavara submitted that it was better to challenge the decision to review in proceedings for judicial review, because that was the earliest link in the chain of illegitimate decision making. But that is not a good reason to seek judicial review, which has considerably complicated these proceedings. On the contrary, the availability of a right of appeal against the FTT’s decision to amend its reasons is a complete answer to the judicial review claim. Each of the three reasons identified above would have provided sufficient grounds for an appeal against the FTT’s decision to add its additional reasoning in its second decision. The claim for judicial review was therefore unnecessary and I refuse permission to bring it.