Specialismsub nom Office of Fair Trading v IBA Healthcare Ltd [2004] ICR 1364Re [1997] 2 FLR 447sub nom Office of Fair Trading v IBA Healthcare Ltd [2004] ICR 1364
1.131Tribunals are inevitably specialised. The Senior President has the duty under TCEA s2(3)(c) to have regard to the need for members to be expert in the subject matter of, or the law to be applied in, their tribunal. This may be because the members are appointed to the tribunal on account of their knowledge, experience or expertise relevant to the tribunal’s jurisdiction. Or it may be because the members acquire, through training and experience, familiarity with the particular legal and factual issues that arise before the tribunal. Or a combination of both. Ultimately, the specialism derives from the tribunal’s limited jurisdiction or the assigning and ticketing within its jurisdiction. The specialism will inevitably relate to the relevant law. But it may also involve other relevant areas, such as medical or financial. The location of the specialism relevant to the issues raised may assist in deciding which judicial body has jurisdiction.
1Michalak v General Medical Council [2016] EWCA Civ 172.1.132Specialisation exposes the judges and members to a greater number and variety of cases than would be possible in the general courts. They are thereby able to develop case-law more quickly than the courts could and to base their decisions on a range of experience (of evidence, circumstances and argument) that would not be available in isolated or individual cases.
1.133The courts respect this specialism,
2See for example the comments of Lords Hope and Walker (both dissenting) in Autologic Holdings plc v Inland Revenue Commissioners [2005] 1 WLR 52 at [60] and [78] respectively. but have also controlled the use that can be made of it.
Respect for specialism
3For a general review, see Heesom v Public Services Ombudsman for Wales [2015] PTSR 222 at [45]–[46], where Hickinbottom J set respect and deference in the context of the scope of an appeal.1.134The Court of Appeal and the Supreme Court may have to consider the degree of respect that should be given to a tribunal’s specialism at two stages: at the permission stage or on an appeal. The two stages are not separate in practice, as the respect to be shown on an appeal will be relevant to whether permission should be given.
Deference at the permission stage
1.135An appeal to the Court of Appeal in second appeals from the county court and High Court is governed by section 55(1) of the Access to Justice Act 1999. An appeal only lies if the appeal would raise an important point of principle or practice or there is some other compelling reason. These criteria did not apply to tribunals, but they were applied as a matter of practice following the judgment of Hale LJ in
Cooke v Secretary of State for Social Security4[2002] 3 All ER 279 at [14]–[18]. to appeals from second-tier appellate tribunals.
5The Social Security and Child Support Commissioners, the Employment Appeal Tribunal, the Immigration Appeal Tribunal and the Lands Tribunal. TCEA s13(6) and (6A) provides for the same additional criteria to be applied to the Upper Tribunal. This is narrower than the test which applies to other appeals, which is whether there is a real prospect of success or some other compelling reason. The effect is to treat the tribunals who are covered by those provisions
6For the cases in which these additional criteria do not apply, see chapter 4. equally with the courts rather than afford particular respect to tribunals on account of their specialism.
Deference on an appeal
1.136The courts and higher tribunals may be required to respect the decisions of a tribunal simply because the legal structure requires it. As Lord Radcliffe explained in
Edwards v Bairstow,
7[1956] AC 14. referring to the General Commissioners:
As I see it, the reason why the courts do not interfere with commissioners’ findings or determinations when they really do involve nothing but questions of fact is not any supposed advantage in the commissioners of greater experience in matters of business or any other matters. The reason is simply that by the system that has been set up the commissioners are the first tribunal to try an appeal, and in the interests of the efficient administration of justice their decisions can only be upset on appeal if they have been positively wrong in law.
8[1956] AC 14 at 38.To do otherwise would risk turning an appeal on law into an appeal on fact.
9Carnwath LJ in IBA Healthcare Ltd v Office of Fair Trading [2004] ICR 1364 at [96], quoting Lord Radcliffe in Edwards v Bairstow [1956] AC 14; BBC v Sugar (No 2) [2010] 1 WLR 2278 at [27]; MA (Somalia) v Secretary of State for the Home Department [2011] 2 All ER 65 at [45].1.137The courts also make realistic assumptions that a tribunal is familiar with and applies basic legal concepts, like the burden and standard of proof.
10Wilson J in Re P (Witness Summons) [1997] 2 FLR 447 at 455 and the Commissioner in R(SB) 5/81 at [7]. They are also not easily satisfied that a tribunal failed to take account of a matter that was not expressly mentioned
11MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at [45]. or that a tribunal has failed to apply correctly its self-direction on the law.
12MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49 at [46].1.138The respect with which this section is concerned is additional to these considerations and is based on the special knowledge, experience or expertise of a tribunal in its particular jurisdiction. It applies both on judicial review and on appeal and both to issues of substantive law and to discretionary decisions on procedural matters.
13Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 at 47. It applies both to an established legislative scheme
14AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 at [30]. and, where the tribunal is appropriately constituted, to a newly established scheme.
15Secretary of State for Defence v Duncan and McWilliams [2009] EWCA Civ 1043 at [119]–[120]. It is, though, doubtful whether this professed respect for specialism is always reflected in the courts’ decisions.
1.139The senior courts have said that they should respect: the way in which a tribunal acting as a specialist fact-finder conducted its business within the area of its expertise;
16Secretary of State for Work and Pensions v Cattrell [2011] EWCA Civ 572 at [23]. findings of fact made by an expert and specialist tribunal in an area where court judges have no expertise;
17Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading [2002] 4 All ER 376 at [34]. findings of mixed fact and law made by specialist judges;
18Secretary of State for Work and Pensions v R (MM and DM) [2013] EWCA Civ 1565 at [65]. the Upper Tribunal’s knowledge of justification for a social security provision,
19Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 at [45] and [47]. the Upper Tribunal’s assessment of proportionality;
20Obrey, Snodgrass and Shadforth v Secretary of State for Work and Pensions [2014] HLR 12 at [13]–[18]. The Supreme Court (UKSC 2014/0259) refused permission to appeal, saying that it did not endorse the breadth of the Court of Appeal’s comments on respect, but that the Upper Tribunal’s decision on proportionality was correct. It is, though, not necessary for the Upper Tribunal to assess the issue of proportionality afresh; it is sufficient to review its exercise by the First-tier Tribunal for error of law: In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911. the Upper Tribunal’s assessment of the adequacy of reasons given by the First-tier Tribunal;
21PK (Congo) v Secretary of State for the Home Department [2013] EWCA Civ 1500 at [22] and [25]. consistent lines of authority at Upper Tribunal level;
22R v National Insurance Commissioners ex p Stratton [1979] QB 361 at 368, 369 and 374; Presho v Chief Adjudication Officer [1984] AC 310 at 319–320. the First-tier Tribunal’s knowledge of the background issues in a tax appeal and the wider arguments about compound interest.
23R (Imperial Chemical Industries Ltd and FCE Bank plc) v Her Majesty’s Treasury and the Commissioners for Her Majesty’s Revenue and Customs [2016] EWHC 279 (Admin) at [27].The basis for deference
1.140This approach has been justified on a variety of reasoning. In
R v Preston Supplementary Benefits Appeal Tribunal ex p Moore,
24[1975] 1 WLR 624. Lord Denning MR reasoned from the lack of a right of appeal:
25The decisions of the tribunal could only be challenged by way of what is now known as judicial review.The courts should not enter into a meticulous discussion of the meaning of this or that word in the Act. They should leave the tribunals to interpret the Act in a broad and reasonable way, according to the spirit and not to the letter: especially as Parliament has given them a way of alleviating any hardship. The courts should only interfere when the decision of the tribunal is unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision: see Cozens v Brutus [1973] AC 854, 861. Nevertheless, it has to be realised that the Act has to be applied daily by thousands of officers of the commission: and by 120 appeal tribunals. It is most important that cases raising the same points should be decided in the same way. There should be uniformity of decision. Otherwise grievances are bound to arise. In order to ensure this, the courts should be ready to consider points of law of general application …
In short, the court should be ready to lay down the broad guidelines for tribunals. But no further. The courts should not be used as if there was an appeal to them. Individual cases of particular application must be left to the tribunals.
26[1975] 1 WLR 624 at 631–632.1.141In
Bromley LBC v Special Educational Needs Tribunal,
27[1999] 3 All ER 587. Sedley LJ derived the same approach from the intention behind the legislation:
Until the welcome setting up of the special educational needs tribunals by the Education Act 1993, challenges to LEAs’ statements [of special educational needs] could be made only on questions of law by way of judicial review…. Unlike the High Court, it is a specialist tribunal with a lawyer chairman and lay members chosen for their knowledge and experience (see s 334(2) [of the Education Act 1996] and the Special Educational Needs Tribunal Regulations 1995, SI 1995/3113, reg 3). In my view this restructuring has jurisprudential implications. Where previously the parent’s only resort from the local education authority was to the court, which had therefore to do its best to construe the statutory language in so far as construction was an appropriate exercise, there is now interposed a specialist tribunal whose remit is not necessarily the same. In particular, where a court has to limit itself to the interpretation of terms of legal art and the setting of outer limits to the meaning of ordinary words in their statutory context, the tribunal is empowered to take a much closer look at the content of the LEA’s statement. Indeed for many purposes it stands in the LEA’s shoes, re-evaluating the available information in order if necessary to recast the statement. But in carrying out this function it also has a supervisory role – to interpret and apply the relevant law. Where the law is expressed in words which, while not terms of legal art, have a purpose dictated by – and therefore a meaning coloured by – their context, it is clearly Parliament’s intention that particular respect should be paid to the tribunal’s conclusions. By virtue of s 11 of the Tribunals and Inquiries Act 1992 the High Court retains an appellate jurisdiction which undoubtedly requires it to intervene where an error of law or jurisdiction or due process can be shown; but the area of expert judgment bounded by the High Court’s jurisdiction is large. This is so both because the nature of the subject matter of appeals to and from SENT makes it appropriate and because the statutory scheme requires it.
28[1999] 3 All ER 587 at 594.1.142In
R v National Insurance Commissioner ex p Stratton,
29[1979] QB 361. Lord Denning MR derived his approach from the expertise of the judges:
These commissioners are judges … They give hundreds of decisions on points of law regarding the interpretation of the regulations. They know just how they work.
30[1979] QB 361 at 368.I venture to suggest that we should proceed on this principle: if a decision of the commissioners has remained undisturbed for a long time, not amended by regulation, nor challenged by certiorari [judicial review], and has been acted upon by all concerned, it should normally be regarded as binding. The High Court should not interfere with it save in exceptional circumstances, such as where there is a difference of opinion between commissioners: see
R v National Insurance Commissioner ex p Michael [1977] 1 WLR 109. A recent decision may be less binding. It may be brought before the High Court with the very object of getting a ruling on a difficult point. The Department itself should do it, if need be. Then the High Court can and should do whatever the justice of the case requires.
31[1979] QB 361 at 369. The references to the High Court are explained by the fact that, at the time, there was no appeal from a Commissioner’s decision and the only recourse was to apply to the High Court for what is now known as judicial review.Bridge LJ was more limited in his statement of the authority of the decisions which the court was considering. His reasoning was based on longevity linked with implied legislative approval. He said:
In view of the time for which those decisions have stood unchallenged and of the terms of the new regulation as amended in 1971 which appear to give them legislative approbation it would no doubt be wrong to say that the decision should now be overruled, nor were we invited to take this course by either counsel in argument.
32[1979] QB 361 at 374.1.143This approach was confirmed by the House of Lords (now replaced by the Supreme Court). In
Presho v Insurance Officer,
33[1984] AC 310. Lord Brandon cited the comments of Lord Denning and Bridge LJ with approval and said that it was one of the ‘important considerations’ in support of his reasoning in that case that it:
… accords with that which has been adopted since 1926 by a substantial number of social security commissioners (or their earlier equivalents) after the expression concerned had first appeared in this class of legislation in 1911.
34[1984] AC 310 at 319–320.1.144In
Cooke v Secretary of State for Social Security,35[2002] 3 All ER 279. Hale LJ emphasied that the courts would not know the wider statutory context in which a tribunal made its decision:
It is also important that such appeal structures have a link to the ordinary court system, to maintain both their independence of government and the sponsoring department and their fidelity to the relevant general principles of law. But the ordinary courts should approach such cases with an appropriate degree of caution. It is quite probable that on a technical issue of understanding and applying the complex legislation the social security commissioner will have got it right. The commissioners will know how that particular issue fits into the broader picture of social security principles as a whole. They will be less likely to introduce distortion into those principles. They may be better placed, where it is appropriate, to apply those principles in a purposive construction of the legislation in question. They will also know the realities of tribunal life. All this should be taken into account by an appellate court when considering whether an appeal will have a real prospect of success.
36[2002] 3 All ER 279 at [16]. See also AH (Sudan) v Secretary of State for the Home Department [2008] AC 768 at [30].1.145In
Obrey, Snodgrass and Shadforth v Secretary of State for Work and Pensions,
37[2014] HLR 12 at [14] and [30]. the Court of Appeal based its reasoning in part on its power to decide where the line between issues of fact and law should be drawn, relying on the decision of the Supreme Court in
R (Jones) v First-tier Tribunal (Social Entitlement Chamber).
38[2013] 2 AC 48.The limits to deference
1.146This approach is flexible enough to allow a court to intervene when a tribunal has made a material error of law.
39BBC v Sugar (No 2) [2010] 1 WLR 2278 at [27]. In
Cockburn v Chief Adjudication Officer and
Secretary of State for Social Security v Fairey (aka Halliday),
40[1997] 1 WLR 799. Lord Slynn said:
It is obviously sensible that the rulings of the commissioners and the practice of administering the scheme which they have laid down and which have been followed over many years should not lightly be interfered with. But if the Court of Appeal, and even more so if your Lordships’ House, is satisfied that wrong distinctions have been drawn as a matter of principle which ought not to be followed they are entitled to say so.
41[1997] 1 WLR 799 at 814.And in
Hinchy v Secretary of State for Work and Pensions,
42[2005] 1 WLR 967 at [49]. See also Lord Hoffmann at [30]. Baroness Hale said:
… if the specialist judiciary who do understand the system and the people it serves have established consistent principles, the generalist courts should respect those principles unless they can clearly be shown to be wrong in law.
1.147There is no basis for respect or deference if: there are divergent views, whether at the same level
43Lord Denning MR and Roskill LJ in R v National Insurance Commissioner ex p Michael [1977] 1 WLR 109 at 112 and 115; Chandler v Secretary of State for Work and Pensions [2008] 1 FLR 638 at [22]. or between tiers;
44AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 at [25] and [50]. In OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694 at [19], Wilson LJ said that deference only applies at the interface between a non-specialist court and a specialist tribunal. That case concerned the internal reconsideration within the single Asylum and Immigration Tribunal, but the reasoning is equally applicable between tiers of the present tribunal system and is consistent with the approach in AP. the senior courts are as able as the Upper Tribunal to identify an error of law;
45AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 at [25] and [50]. the issue is one of general law or general principle;
46Lord Denning MR in R v National Insurance Commissioner ex p Michael [1977] 1 WLR 109 at 112. the issue is a hard-edged point of statutory interpretation that has caused difficulty to the Upper Tribunal;
47R (Mahmoudi) v London Borough of Lewisham [2014] EWCA Civ 284; [2014] AACR 14 at [14]. the issue for the tribunal is different from the issue that the court has to decide.
48Revenue and Customs Commissioners v Changtel Solutions UK Ltd (formerly ENTA Technologies Ltd) [2015] 1 WLR 3911 at [40].The role of the Upper Tribunal
1.148The deference due to a specialist tribunal does not affect the role of the Upper Tribunal in providing specialist guidance on issues of law arising in the First-tier Tribunal.
49AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 at [46] and [50].Use of specialist knowledge or expertise
1.149If a tribunal makes use of the specialist knowledge or expertise of a panel member in a way that is decisive, it may have to make that known to the parties. In
Butterfield and Creasy v Secretary of State for Defence,
50[2002] EWHC 2247 (Admin) at [14]. Park J said:
There is a potential problem if a medical member of a tribunal is the only person present with specialist medical knowledge, and he perceives a possible medical objection to the appellant’s case, particularly an objection which has not been taken in advance by the Secretary of State and of which the appellant has not had prior notice. If the medical member believes that there is such an objection, plainly he must say so. He is a member of the Tribunal because of his medical expertise, and if he thinks that his medical expertise is relevant in some specific way which has not otherwise been pointed out, he must draw on it in the course of the hearing and the tribunal’s deliberations. I do not for a moment suggest that the medical member of the tribunal should in some way suppress his personal expertise and reactions to medical issues which arise. However, if the point which concerns him is a new one and might in itself be decisive, it does seem to me that fairness requires that it be explained to the appellant or to the appel-lant’s representative, and that the appellant should be given a realistic opportunity to consider it. In some cases, though I hope not many, this may require the offer of an adjournment, however inconvenient and irksome that may be.
Powers of judicial review
1.150The courts do not allow specialist tribunals that have judicial review powers to operate those powers differently from the courts on account of their specialism. In
IBA Healthcare Ltd v Office of Fair Trading,
51[2004] ICR 1364. the Court of Appeal considered the scope of judicial review as applied under statute by the Competition Appeal Tribunal. The tribunal had decided that the principles were different on the ground that, unlike the Administrative Court, it was not a non-specialist court considering the decision of a specialist decision-maker, but a tribunal specialist in the area of decision-making. The Court of Appeal held that the ordinary principles of judicial review applied regardless of the specialism of the reviewing tribunal.
52[2004] ICR 1364 at [51]–[53].