Upper Tribunal (Administrative Appeals Chamber)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NOTICE OF DETERMINATION OF APPLICATION

FOR PERMISSION TO APPLY FOR JUDICIAL REVIEW

I refuse permission to apply for judicial review of the decisions of the First-tier Tribunal (Health, Education and Social Care) dated 09 December 2011 and 13 January 2012.

 

This decision is made under sections 15-18 of the Tribunals, Courts and Enforcement Act 2007 and Part 4 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

 

I also direct that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the applicant in this appeal.

 

This direction is made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

Attendances:

 

For the Applicant: Mr Stephen Simblet of Counsel, instructed by Swain & Co.

For the Respondent: No attendance.

For the Interested Party: Mr Stephen Cragg of Counsel, instructed by Capsticks.

 

 

 

REASONS FOR DECISION

 

Introduction

1. The applicant in these judicial review proceedings, MP, is a patient in a high security unit of a mental hospital.  He has every reason to be extremely disappointed and indeed bitter about the events of the past 3 or 4 years.  However, whilst I recognise that the liberty of the subject is a matter of the first importance, the rights and wrongs of his continued detention are not directly a matter for me in these proceedings.

 

2. The issue that I have to decide is whether or not to give MP permission to apply for judicial review of a decision (or decisions) by Judge Postgate, a salaried judge in the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal (FTT).  She had concluded that an earlier FTT decision ordering his (deferred) discharge should be set aside and the matter re-heard by a fresh FTT.  I have decided not to give permission to apply for judicial review in respect of her decision(s).

 

The relevant background

3. The relevant background to this matter can be summarised very briefly as follows.  In 2008, a few days before the expiry of his prison sentence for various sexual offences, MP was transferred from prison to a hospital high security unit under section 47(1) of the Mental Health Act 1983.  In April 2011 the First-tier Tribunal (FTT) declined to order his discharge but made a statutory recommendation for his transfer to a medium secure unit (MSU).  The MSU subsequently conducted an assessment which concluded that he was not suitable for admission to that service.  The matter then came back before the same FTT on 2 November 2011.

 

The 2 November 2011 FTT hearing

4. The patient attended the FTT hearing (but did not give evidence), and was represented by Mr Stephen Simblet of counsel and his solicitor.  The Responsible Authority was represented by MP’s previous responsible clinician (RC), Professor Maden, his current RC being apparently unable to attend.  Professor Maden had submitted a written report dated 19 October 2011.

 

5. The salient points in that report were the RC’s views that (i) MP suffered from a mental disorder (an antisocial or dissocial personality disorder) within the terms of the 1983 Act, there being no question of any mental illness; (ii) in ordinary circumstances his offences, whilst serious, would not have resulted in admission to a high secure hospital; (iii) if in the community, there was a risk of sexual reoffending but no more so than other sex offenders, and such risks are typically managed through other agencies, not mental health services; (iv) the FTT “may reach the conclusion that his prolonged detention is disproportionate to the risks”; (v) “in my opinion most clinicians would not regard [MP] as meeting [the section 3] criteria”.  The RC concluded by inviting the FTT to consider whether the risks involved led to the conclusion that MP’s mental disorder was of a nature and degree that required his detention in hospital for the safety of others.

 

6. The FTT heard oral evidence from Professor Maden, a nurse and a social worker.  Professor Maden’s oral evidence was consistent with his 19 October 2011 written report. The nurse, who had only known MP for a month, agreed with the RC and believed that MP could be discharged with appropriate aftercare.  The social worker struck a more cautious note; she supported a move from high security hospital to a MSU, but was concerned about MP’s ability to cope with the transition from high security to living in the community. The FTT narrated the oral evidence at paragraphs [12]-[15] of its decision, and no point has been taken as to the accuracy of that account.

 

7. The FTT’s reasoning for its decision is at paragraph [18]:

 

“The Tribunal listened carefully to all of the evidence and read all the reports carefully.  We note particularly Professor Maden’s evidence that MP suffers from a mental disorder, however that is today not of a nature or degree to warrant detention. In light of the evidence, the Tribunal feel that they have no option but to discharge MP from detention.  We are however going to defer that discharge for ten weeks until 11^th January 2012.  The reason we feel it appropriate to defer the discharge is so that appropriate after care arrangements, effective discharge planning, and longer term support including locating suitable accommodation and community support can be identified and arranged.”

 

Procedural events after the FTT hearing

8. On 6 December 2011 the Responsible Authority lodged an application with the FTT for permission to appeal to the Upper Tribunal.  The application set out three alleged errors of law: (1) inadequacy of reasons on the part of the FTT; (2) new evidence, not previously available, relating to the risk assessment; (3) the FTT’s reliance on what was said to be a misrepresentation by Professor Maden about the view of the current RC.  The Responsible Authority appended to its application a copy of the minutes of the Care Programme Approach (CPA) review dated 6 October 2011, which it argued supported its case (I return to this issue further below at [40]).

 

9. On 9 December 2011 Tribunal Judge Postgate considered the Responsible Authority’s application.  She concluded that there was a clear error of law in the FTT’s decision in terms of inadequate reasoning (she expressly declined to rule on grounds (2) and (3)).  She therefore set aside the FTT’s decision and directed a re-hearing before a new tribunal.

 

10. On 3 January 2012 MP lodged what his representative described as an “appeal” against Judge Postgate’s decision (in fact, as will become apparent, it was technically an application to have her decision set aside).  This was accompanied by a detailed skeleton argument prepared by Mr Simblet on MP’s behalf.

 

11. On 13 January 2012 Judge Postgate reconsidered the matter but confirmed her previous decision and the directions for a re-hearing.

 

12. There appears to have been some uncertainty amongst MP’s representatives as to what steps could be taken to challenge Judge Postgate’s decision (or decisions).  On 15 February 2012 they were given informal advice from the HESC Principal Judge that the only available route was by way of judicial review. On 2 March 2012 the Upper Tribunal received MP’s application for judicial review of Judge Postgate’s decision(s).  I directed expedited submissions and on 19 March 2012 the Responsible Authority entered an Acknowledgement of Service together with summary grounds opposing the application for permission to apply for judicial review.

 

13. I held an oral hearing of the application on 14 May 2012 at Field House.  Mr Simblet appeared for MP.  Mr Stephen Cragg, who of course did not appear below, appeared for the Responsible Authority (now the Interested Party in these proceedings, or more simply for present purposes the Trust).  I am grateful to them both for their submissions.  It is in deference to their detailed arguments that this determination is longer than perhaps would otherwise be the case.

 

The parties’ core submissions summarised

14. Mr Simblet’s core submissions were essentially two-fold.  First, the FTT’s power of review could only be used in clear and obvious cases of error, and it could not be said that the FTT’s reasons in this case were indisputably inadequate.  On the contrary, they were sufficient to dispose of the primary issues between the parties, not least given the nature of Professor Maden’s evidence.  Second, especially given that the liberty of the individual was at stake, it was entirely wrong that MP should have the fruits of a decision in his favour at an uncontested oral hearing before the FTT snatched away through an unfair review procedure operating on the papers and without the opportunity for him to make representations before the review decision was made.  The case was plainly arguable on either basis and so permission to apply for judicial review should be granted.

 

15. Mr Cragg’s submissions by way of reply were equally stark but to the contrary.  First, he submitted that the FTT’s reasons were plainly inadequate, for the reasons set out by Judge Postgate, and so she had been entirely justified in exercising the review power.  Second, he argued that MP had not been denied the chance to be heard; rather he had been given the opportunity to make detailed representations (in what was described as an appeal against her first decision but was actually an application to have that review decision set aside), albeit that Judge Postgate left her initial review decision intact.  Permission to apply for judicial review should be refused.

 

The starting point

16. The starting point must be to consider this application for permission to apply for judicial review in the context of the tribunal structure established by the Tribunals, Courts and Enforcement Act (TCEA) 2007.  In broad terms, section 11(1) of TCEA 2007 provides that there is a right of appeal (with permission, and on a point of law only) from any FTT decision to the Upper Tribunal.  However, this right of appeal does not extend to any “excluded decision”, a term defined by section 11(5).  Amongst the categories of excluded decisions are FTT decisions to review, or not to review, an earlier FTT decision and to take no action in the light of a review of an earlier decision (section 11(5)(d)(i) and (ii)).  Judge Postgate’s review decisions of 9 December 2011 and 13 January 2012 fell within the scope of those categories and were thus excluded decisions.

 

17. In R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC); [2010] AACR 41 “RB”), a strong Three-Judge Panel of the Administrative Appeals Chamber of the Upper Tribunal observed as follows:

 

“30. The substantial element of judgment or discretion is no doubt a reason for review decisions not being appealable and it is also a reason for expecting that the Upper Tribunal will seldom interfere with review decisions when judicial review proceedings are brought. Moreover, the Upper Tribunal might in an appropriate case refuse permission to apply for judicial review on the ground that the applicant should wait for the case to be re-decided and then, if less successful than before, consider appealing on the ground that the review was unlawful.”

 

18. It is only right to note that the decision by the same Three-Judge Panel of the Upper Tribunal in a subsequent stage of that litigation ([2010] UKUT 454 (AAC)) was subsequently reversed by the Court of Appeal in Secretary of State for Justice v RB and Lancashire Care NHS Foundation Trust [2011] EWCA Civ 1608.  However, that case turned on a different point and the Court of Appeal said nothing to put in doubt the observation quoted in the preceding paragraph.

 

19. In the light of those comments, I take the view that there will need to be a compelling case to give permission to apply for judicial review.  This is certainly a case with some unusual features.  However, despite Mr Simblet’s clear and vigorous submissions, I am not persuaded that an arguable case for granting permission to apply for judicial review has been made out, for the following reasons.  For the purpose of exposition it is probably best to deal with the review/representations procedural point first, and then to consider the reasons point.

 

The review and representations point

The legal framework

20. The Trust’s application for permission to appeal was made under section 11 of TCEA 2007 and rule 46 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699).  However, rule 47(1) provides that:

 

“(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 49 (review of a decision).”

 

21. However, rule 49(1), so far as it is relevant, stipulates that the FTT “may only undertake a review of a decision (a) pursuant to rule 47(1) ... if it is satisfied that there was an error of law in the decision”.  The outcome of the review must be notified to the parties (rule 49(2)).  Rule 49(3) then provides that:

 

“(3) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.”

 

22. These provisions were the subject of detailed analysis by the Three-Judge Panel in RB, including the following highly pertinent observations:

 

“24. It cannot have been intended that the power of review should enable the First-tier Tribunal to usurp the Upper Tribunal’s function of determining appeals on contentious points of law. Nor can it have been intended to enable a later First-tier Tribunal judge or panel, or the original First-tier Tribunal 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 demonstrate 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.

 

25. There are, of course, degrees of clarity and there are practical reasons for taking a flexible approach. An important consideration may be the likelihood of the party in whose favour the original decision was made objecting to the review. In the event of an objection, the review may well cause delay rather then reducing it.

 

26. Rule 49(3) enables the First-tier Tribunal to take a robust approach when it first receives an application for permission to appeal – for it enables it to take a decision without calling for representations by the other side, on the basis that if the other side objects there can be an application to set aside. However, if the tribunal receives an application to set aside the action it has taken following a review, it must consider afresh whether that action was appropriate, in the knowledge that it is contentious. Moreover the tribunal is not obliged to take the robust approach permitted by rule 49(3) and in many cases it will be preferable to invite representations before concluding that an original decision should be set aside.

 

27. We agree with Mr Barnes that consideration whether or not to review a decision involves a large element of judgment or discretion. Indeed, even if the First-tier Tribunal is satisfied that there is a clear error of law, it may decide not to review a decision but instead to give permission to appeal. The error may be a common one and, for that or other reasons, it may be helpful to have an authoritative decision of the Upper Tribunal on the point.”

 

The parties’ submissions

23. Mr Simblet, for MP, submitted that there were two issues of general importance here.  The first concerned the FTT’s statutory powers and the relationship between TCEA 2007 (especially sections 9 and 11) and rule 49.  The second concerned the propriety (or otherwise, as he argued), of the FTT salaried judge using the rule 49 review procedure to reverse the effect of the FTT decision in the patient’s favour before hearing any representations on his behalf.  As to the former, Judge Postgate was, he argued, functus officio (i.e. she had discharged her function and had no further role in the matter) once she had made her first decision.  She could not, therefore review the FTT’s decision again, not least because of the bar on further reviews in section 9(10) of TCEA 2007.  As to the latter, it was entirely wrong, as a matter of principle, that the FTT’s decision in MP’s favour could be overturned without him first having the opportunity to make representations as to why it should stand.

 

24. Mr Cragg, for the Trust, submitted that Judge Postgate operated the statutory review procedure in an entirely lawful manner.  Rule 49 is there to deal with cases of obvious error, and this was just such a case so far as the FTT’s reasoning was concerned. This was not a case of successive reviews – section 9(10) applies where the FTT has decided that an earlier decision should not be reviewed.  Here, Judge Postgate decided on 9 December 2011 to review the FTT’s decision, so there was only ever one review.  The ruling of 13 January 2012 was simply in consequence of MP’s application to set that review decision aside, as he was entitled to make, under rule 49(3). Furthermore, the procedure was not unfair – rule 49(3) expressly contemplated that reviews could be undertaken without first seeking the other party’s views and that representations could be made subsequently, so MP’s position had been protected.  He had made his representations which had been considered, although Judge Postgate decided to leave her review decision intact for the reasons she gave.

 

Analysis

25. I regard the first point – concerning the FTT’s statutory powers and the relationship between TCEA 2007 and the HESC Rules – as unsustainable for the reasons given by Mr Cragg.  I also resist the invitation to provide any further or more general guidance on the statutory scheme for reviews of FTT decisions, not least given the careful and detailed consideration given to that question by the Three-Judge Panel in RB (developing the comments of Judge Rowland in AA v Cheshire and Wirral Partnership HNS Foundation Trust [2009] UKUT 195 (AAC)). There was also no suggestion by either counsel that that guidance was in any way deficient.  Rather, particular passages in the Upper Tribunal’s decision were relied on to greater or lesser effect on each side.

 

26. I am also not persuaded that I should give permission to apply for judicial review on the second point, concerning representations “after the event” under rule 49(3). As the Three-Judge Panel in RB noted, this allows FTT judges to adopt a “robust” approach (at [26]).  In the present case, this also allowed Judge Postgate to deal with the application both swiftly and thoroughly, bearing in mind the requirements of rule 2. Of course, the Upper Tribunal also acknowledged that “in many cases it will be preferable to invite representations before concluding that an original decision should be set aside”.  However, that assessment is always going to be fact-specific, and I am wary of elevating a generalised statement of best practice into any sort of fixed rule which stipulates that a departure from that norm necessarily involves an arguable error of law.  In reaching that view, I have borne in mind “the large element of judgment or discretion” (RB at [27]) involved (and see also the further comments in RB at [30], cited at [15] above).

 

27. I also take the view that this is not a case where Judge Postgate was seeking to “usurp the Upper Tribunal’s function of determining appeals on contentious points of law” (RB at [24]).  This may well have been a contentious case on its facts, but the point of law was not contentious – adequacy or inadequacy of reasons is a well-established area of law where the principles are clear, even if their application is sometimes disputed.  Nor is this a case where she was taking “a different view of the law from that previously reached, when both views are tenable”.

 

28. Mr Simblet sought to persuade me that Judge Postgate’s review decision displayed the same flaws as those in the FTT decision in RB.  I disagree, in part for the reasons set out in the previous paragraph.  RB turned on a difference of opinion on a point of substantive law, not a “facts and reasons” challenge.  It is also true that “if an error of law is clear it should be possible to give reasons in a couple of paragraphs” (RB at [32]).  However, I note that in RB itself the review decision ran to over 13 pages.  Judge Postgate’s review decision, including preliminary matters, ran to just over 3 pages.  Arguably she might have expressed herself even more briefly – but then again she was dealing with a very important matter and, given that she was inviting representations under regulation 49(3), it was only fair that she explained her reasoning in some detail.

 

Conclusion

29. I accordingly refuse permission to apply for judicial review on the review and representations point.

 

The reasons point

The FTT’s reasons

30. Mr Simblet described the FTT’s reasons as extending to over 2½ pages.  However, much of that text is by way of a narrative, rehearsing the background, the evidence and submissions before the tribunal.  In doing so, the FTT recorded that Professor Maden had been asked about Dr McGregor-Morris’s report (she had assessed MP for the MSU but concluded that he needed to be managed in a high security unit), dated 24 May 2011. Professor Maden’s response was that he disagreed with her report. The FTT’s reasons, strictly speaking as such, are those set out in paragraph [18] (see [7] above), along with paragraph [19] which dealt further and more specifically with the reasons for the deferred discharge.

 

31. In her review decision of 9 December 2011, Judge Postgate noted that in April 2011 the same FTT had found the statutory criteria for continued detention to be met but had made the formal recommendation for transfer to a MSU.  She concluded that the FTT’s reasons in November 2011 were inadequate because: (i) they gave no explanation for why the panel’s view had changed; (ii) they failed to explain why they had rejected the opinion of Dr McGregor-Morris; (iii) they appeared to suggest that Professor Maden’s view of the matter was conclusive; and (iv) no reason was given for rejecting the social worker’s evidence.

 

32. In her subsequent decision of 13 January 2012, refusing to set aside her review decision, Judge Postgate reaffirmed that analysis.  She reiterated her view that this was a clear case of inadequate reasons; she argued that in adopting Professor Maden’s position “it may be that they [the FTT] had a good factual basis for coming to this conclusion; the issue before me is that they do not state that basis anywhere in the decision” (at [6]).  She continued: “nowhere in the reasons is there any information as to whether the patient’s mental state or behaviour has changed, so as to provide reassurance that he could now be safely managed in the community” (at [7]).

 

The parties’ submissions

33. Mr Simblet submitted that the test for adequacy of reasons depended on the nature of the case (R(H) v Ashworth Special Hospital Authority [2002] EWCA Civ 923; [2003] 1 WLR 127 at [72]).  This meant that the tribunal had to explain its decision where there was, for example, a difference of opinion between the parties.  The cases in which reasons had been found wanting typically involved cases with expert witnesses on either side with conflicting opinions which had not been properly resolved by the tribunal (see e.g. BB v South London and Maudsley NHS Trust and the Ministry of Justice [2009] UKUT 157 (AAC)).  The level of reasoning required was thus context-specific. In this case, there was, in fact, no difference between the parties: the RC’s expert view, namely that the test for continued detention was not met, was entirely consistent with MP’s position.  The FTT’s reasons could have been even shorter in those circumstances.  It was, Mr Simblet submitted, certainly not a case where the FTT could be said to have obviously fallen into error in terms of the reasons given.  Furthermore, if there were thought to be a problem with the reasons, Judge Postgate could always have asked the FTT to supplement their reasons.

 

34. Mr Simblet also attacked each of Judge Postgate’s four principal grounds for reaching the conclusion that the FTT’s reasons were inadequate (see [31] above): (i) the FTT was bound to consider MP’s condition as at the date of the hearing, so evidence relating to April 2011 was not relevant; (ii) Dr McGregor-Morris was not concerned with the statutory criteria, but rather with admission to the MSU; (iii) Professor Maden was both the RC and the Trust’s representative, and the FTT was entitled to proceed on the basis of his evidence; and finally (iv), by definition the social worker was not in a position to give evidence on the medical criteria for continued detention.

 

35. Mr Cragg, for the Trust, submitted that the standard of reasons in this context could not be judged within the narrow framework of a private law dispute and so be confined to the parties’ interests.  There was a wider public interest involved (cf Dyson LJ in R(H) v Ashworth Hospital Authority at [76]; and, I might add, the authorities also make it clear that reasons must be sufficient to enable an appellate court or tribunal understand why the first instance body reached the decision it did; R(H) at [72]).  In the present case, the FTT had a considerable body of documentary evidence and had reached a view in April that discharge was not appropriate.  The FTT had changed that view solely in reliance upon the RC’s evidence in November 2011, and yet had failed to explain how matters had changed since their earlier determination.  Mr Cragg argued that Judge Postage was perfectly entitled to form the view that she did, for the reasons that she gave, as to the adequacy or otherwise of the reasons. 

 

Analysis

36. I start with two propositions considered above.  First, the review power under section 9 and rule 49 should only be exercised in clear cases (RB at [24]).  Second, this assessment involves a substantial element of judgment or discretion and so the Upper Tribunal should seldom interfere with review decisions when judicial review proceedings are brought (RB  at [30]).

 

37. Taking those two principles together, I have to say that in my view Judge Postgate was entirely justified in forming the view that she did about the inadequacy of the FTT’s reasons.  I do not regard the contrary position as being arguable. Of course, I accept that the critical issue was MP’s condition as at the date of the hearing, not as at the date of the initial hearing six months previously.  The FTT’s November 2011 decision had expressly stated that it had to be read in conjunction with the April 2011 decision (at [8]).  Yet there was no explanation by the FTT as to what had changed in the meantime; indeed, the level of risk to others was regarded as the same.  There was no explanation as to why Professor Maden’s view had been preferred to that of Dr McGregor-Morris.  I am not persuaded that the significance of the latter’s evidence was solely confined to the criteria for admission to the MSU. Dr Macgregor-Morris’s report was certainly given in that context, but the fact that she considered that MP needed to be managed in high security necessarily had a bearing on whether discharge was appropriate.  Professor Maden’s own evidence to the FTT had also accepted that there were “issues of social appropriateness, which go beyond purely medical reasons to discharge”, and yet the FTT had not explained why they were departing from the view of the social worker.

 

38. On the face of it Mr Simblet’s point that Professor Maden was both the RC (or recently had been) and the Trust’s representative, and that the FTT was entitled to proceed on the basis of his evidence, has some force.  However, this seems to me to assume too readily that the mental health jurisdiction is a wholly adversarial jurisdiction.  There may well be adversarial aspects, but ultimately, given the wider public interest at stake, this is an inquisitorial jurisdiction.  An FTT that states that it has “no option” in the light of the RC’s evidence to discharge MP appears to have regarded the RC’s evidence as determinative of the matter and its own role as little more than a rubber-stamp.  Mr Simblet characterised the Trust’s subsequent decision to apply for permission to appeal and to oppose this judicial review application as an abuse of process.  There is no doubt that at times in the course of the oral argument this left Mr Cragg in a somewhat exposed and uncomfortable position.  However, the fact remains that it is not the Trust’s decisions that are being challenged in these judicial review proceedings – it is the review decision (and subsequent refusal to set aside) by Judge Postgate.  Indeed, as Mr Cragg noted, if there was perceived to be a difficulty with the FTT’s decision and its reasons, who else other than the Trust was going to raise those concerns?

 

39. I have also considered Mr Simblet’s argument that the Trust’s application should have been referred back to the tribunal judge who presided over the November 2011 hearing, rather than to a salaried judge such as Judge Postgate.  The Senior President’s Practice Statement on the Composition of Tribunals in relation to matters that fall to be decided by the Health, Education and Social Care Chamber on or after 18 January 2010 (dated 16 December 2009) does not appear to make specific provision for this eventuality in HESC cases, as happens in some other Chambers of the FTT.  It seems to me that this is a case management decision with which the Upper Tribunal should be very slow to interfere.  Nor am I persuaded by the argument that Judge Postgate should have sought supplementary reasons from the FTT – there is ample authority from the appellate courts and the Upper Tribunal that such an approach bristles with potential problems.

 

40. I have not overlooked Mr Simblet’s challenge to the CPA minutes of the 6 October 2011 meeting (see [8] above).  My initial view was that the FTT’s reference to the CPA minutes of 6 October 2010 was simply a typographical error.  However, Judge Postgate proceeded on the basis that she could not be sure that the October 2011 CPA minutes were in front of the FTT.  Having heard from Mr Simblet, on reflection I think that was the right approach – although the RC’s letter referred to the October 2011 CPA, the minutes of that meeting were not then listed as an appendix to his report.  I have therefore ignored the contents of those minutes.  I would also make the following two final observations.

 

41. First, had the FTT’s November 2011 decision come before me as an application by the Trust for permission to appeal to the Upper Tribunal, I regard it as almost inevitable that permission would have been granted on the ground of inadequacy of reasons, although I have very real doubts as to whether the Trust’s second and third grounds were arguable.  On that basis it is very difficult to see how permission should now be given to apply for judicial review against Judge Postgate’s review decision.

 

42. Second, I share Judge Postgate’s concerns that the November 2011 FTT’s decision to make a deferred discharge was in any event in error of law, as it should have adjourned to ensure that appropriate aftercare was available.  I say no more on this point, as neither counsel raised the matter at the oral hearing, but in the event that I had found the grounds arguable (which I do not) this factor would clearly have been relevant to the issue of discretion in whether or not to grant permission.

 

Conclusion

43. I accordingly refuse permission to apply for judicial review on the reasons point.

 

Determination

44. I therefore refuse permission to apply for judicial review.

 

 

 

 

 

 

 

 

 

 

(Signed on the original)

 

Nicholas Wikeley

Judge of the Upper Tribunal

 

(Dated) 22 May 2012

  (Corrected) 28 June 2012