Eba, Petitioner [2010] CSOH 45

The petitioner sought judicial review of the Upper Tribunal's refusal of permission to appeal against a decision of the Social Security Appeal Tribunal. (1) The UT decision in the present case is subject to review only in exceptional circumstances, i.e. on pre-Anisminic grounds (excess of jurisdiction in the narrow sense) or because there has been a breakdown of fair procedure. (2) This case was not within that restricted right of review so the petition was dismissed.


  • There is no way to appeal against the Upper Tribunal's refusal of permission to appeal against a decision of the First-tier Tribunal, as this is an "excluded decision", hence the petition for judicial review.
  • The Scottish court here was in broad agreement with the following English High Court decision: R (Cart) v Upper Tribunal [2009] EWHC 3052 (Admin)(1) Decisions of inferior courts are subject to judicial review for exceeding their jurisdiction. Excess of jurisdiction can mean either the court (a) embarks on a case beyond its statutory remit, or (b) makes a legal mistake. (2) Judicial review of the Upper Tribunal is not ousted by s3 TCEA 2007. (3) The UT is, for the relevant purposes, an alter ego of the High Court, and it would never be right to exercise the JR jurisdiction on the ground that it had made a legal mistake. (4) Decisions of the UT are only amenable to JR for excess of jurisdiction or where there is a wholly exceptional collapse of fair procedure (something as gross as actual bias). (5) Consideration was also given to the status of SIAC decisions. [Caution.]§
  • Anisminic v Foreign Compensation Commission [1968] UKHL 6, [1969] 2 AC 147B is the case mentioned in the summary above.

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