Upper Tribunal (Administrative Appeals Chamber)

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> EF v Secretary of State for Work and Pensions [2009] UKUT 92 (AAC) (21 May 2009)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/92.html
Cite as: [2009] UKUT 92 (AAC)

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EF v Secretary of State for Work and Pensions [2009] UKUT 92 (AAC) (21 May 2009)
Judicial review
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Upper Tribunal File: CSIB/261/2009

TRIBUNALS COURTS AND ENFORCEMENT ACT 2007

APPLICATION FOR PERMISSION TO APPEAL ON A QUESTION OF LAW FROM A DECISION OF A FIRST-TIER TRIBUNAL

DETERMINATION BY JUDGE OF THE UPPER TRIBUNAL

Name:

First Tier Tribunal Case No: 098/08/00817

____________

The Office of the Upper Tribunal received on 20 May 2009 from Mr Orr of the Welfare Rights Section of the City of Glasgow Council, representing the claimant, an application which includes the following:

"I refer to the decision of the appeal tribunal judge Mr J.C. Kidd sent on 23/2/09 (copy attached reference 098/08/00817) please treat this letter as application for a judicial review by the Upper Tribunal on the grounds that the Tribunal Judge has failed to properly exercise his discretion concerning the late admission of a request to have a withdrawn appeal reinstated."

The claimant has given a mandate to his representatives, the City of Glasgow Council, Welfare Rights Section, to bring these judicial review proceedings. The mandate was signed on 24 March 2009.

This application is incompetent. It is dismissed.

The claimant's application is misconceived. Shortly put, in Scotland it is not competent to make a direct application for judicial review to the Upper Tribunal. The statutory provisions in the Tribunals, Courts and Enforcement Act 2007 allow for a direct application for judicial review to the Upper Tribunal in appropriate cases arising under the laws of England and Wales and Northern Ireland. I refer in that connection to s.15 and s.16 of the Tribunals, Courts and Enforcement Act 2007. However, in Scotland applications for judicial review require to be made directly to the Court of Session. The Court, under s.20(1) of the Act, if the conditions referred to in s.20(1)(a) are met, must, or if the conditions under s.20(1)(b) are met, may, by order, transfer the application to the Upper Tribunal. In respect of mandatory transfers to the Upper Tribunal under s.20(1)(a), one of the conditions that requires to be fulfilled is condition 2, which is set out in s.20(3), namely:

"(3) Condition 2 is that the application falls within a class specified for the purposes of this sub-section by Act of Sederunt made with the consent of the Lord Chancellor."

A class has been specified by Act of Sederunt 2008 No.35 (Transfer of Judicial Review Applications from the Court of Session) 2008. That class is specified in paragraph (3):

"(3) The class of application is an application which challenges a procedural decision or a procedural ruling of the First Tier Tribunal, established under s.3(1) of the Tribunals, Courts and Enforcement Act 2007."

It would appear on the face of it that the decision sought to be reviewed is one which potentially would be transferred by the Court of Session to the Upper Tribunal if an application for judicial review was made to the Court. However, if the claimant wishes to pursue the matter, it will be necessary for him to present a petition for review directly to the Court of Session. He would be advised to seek appropriate legal advice before embarking on this course.

(Signed)

D J MAY QC

Judge of the Upper Tribunal

Date: 21 May 2009