Review
15.39Review is a process under TCEA by which the First-tier Tribunal or Upper Tribunal considers whether it has made a mistake ‘on a matter in a case’. The powers are contained in TCEA ss9 and 10; the rules of procedure prescribe the circumstances in which those powers may be exercised.
The scope of the process
15.40The process applies to a decision on any matter in a case, except for those matters excluded from the right of appeal (ss9(1) and 10(1)).
15.41There is no definition of ‘a matter in a case’. It is wide enough to cover matters both of substance and procedure.
15.42Each decision may only be considered for review, or reviewed, once. If a tribunal has reviewed a decision, it cannot do so again. If it has decided ‘that an earlier decision should not be reviewed’, it cannot later decide to review it. (ss9(10) and 10(8)) A decision ‘that an earlier decision should not be reviewed’ must refer to a refusal to review rather than a decision to take no action on a review. This follows from the nature of a review as a process rather than an outcome. It also follows from the statutory language, since otherwise the reference to not reviewing a decision more than once would be redundant.
15.43Decisions made under the review powers are excluded from the right of appeal (ss11(5)(d) and 13(8)(d)). However, when a matter is re-decided, that creates a new decision, which itself is subject to the power of review and the right of appeal (ss9(11) and 10(9)).
Outcomes
15.44Under TCEA, a tribunal has a menu of powers on review; they are discretionary (ss9(1) and 10(1)). It may refuse to review. If it does review, it may: (a) correct accidental errors in the decision or the record of the decision; (b) amend the reasons given for the decision; (c) set the decision aside; or (d) not take action on the review. (ss9(4) and 10(4))
15.45However, TCEA authorises these powers to be restricted by the rules of procedure (ss9(3) and 10(3)). The rules have severely restricted the powers of review. They may only be exercised in limited circumstances and, for the most part, only on an application for permission to appeal. This effectively overrides the power for the tribunal to act on its own initiative under sections 9(2)(a) and 10(2)(a).
1JS v Kingston upon Hull City Council [2014] UKUT 0043 (AAC).15.46In
JS v Secretary of State for Work and Pensions,
2[2013] UKUT 100 (AAC). a three-judge panel of the Upper Tribunal decided how the power to amend reasons should be applied. The judge dealing with the review should identify the error of law that justifies the review. If the judge considers that it might be appropriate to amend the reasons, the parties should be given the chance to make representations. The presiding judge should be asked to provide reasons and the judge dealing with the review should then decide if they would constitute amendments for the purpose of the review power. It is only appropriate to amend reasons if it would not be appropriate to set the decision aside. The power must not be used to subvert the appeal process. There must be some objective guarantee that the changes are not merely justifications. A presiding judge who is dealing with a review should approach it in the same spirit. On appeal, the Upper Tribunal has jurisdiction to decide whether the changes to the reasons were amendments for that purpose.
Effect of setting aside a decision
15.47Once a decision has been set aside on review, it is no longer subject to the right of appeal. This may occur before or during the appeal process (ss11(5)(e) and 13(8)(e)).
3This is in accordance with general principle: R(SB) 1/82 at [12]. In the latter case, the appeal will lapse.
15.48The decision to set aside a decision under review may itself be the subject of a review, but only to allow accidental errors to be corrected in the decision or the record of the decision (ss9(9) and 10(7)).
Review under the rules of procedure
15.49The First-tier Tribunal may review for errors of law identified on an application for permission to appeal to the Upper Tribunal.
4See: GRC Rules r44(1)(a); HESC Rules r49(1)(a); IAC Rules r35(1)(a); SEC Rules r40(2)(b); Tax Rules r41(1)(b); WPAFC Rules r38(1)(b). Under HESC Rules, a decision in a special educational needs case may also be reviewed for a change of circumstances since it was made (r48(2)). Under PC Rules, the test is whether a ground of appeal is likely to be successful (r55(1)). This reflects the fact that an appeal may lie from this Chamber otherwise than for error of law.
15.50The Upper Tribunal may review on an application for permission to appeal to the Court of Appeal in two circumstances. Rule 45(1) provides:
5See also Lands Rules r56(1).(a)when making the decision the Upper Tribunal overlooked a legislative provision or binding authority which could have had a material effect on the decision; or
(b)since the Upper Tribunal’s decision, a court has made a decision which is binding on the Upper Tribunal and which, had it been made before the Upper Tribunal’s decision, could have had a material effect on the decision.
These restrict the scope of the Upper Tribunal’s review power. The circumstances specified would both be errors of law under the First-tier Tribunal’s review powers.
15.51And for references to the Upper Tribunal under the Forfeiture Act 1982, the Upper Tribunal may review in three circumstances. Rule 47(2) provides:
…
(b)the decision was made in ignorance of, or was based on a mistake as to, some material fact; or
(c)there has been a relevant change in circumstances since the decision was made.
15.52A tribunal cannot protect itself from the power of review by deciding for itself that it is not in error of law.
6LM v Secretary of State for Work and Pensions [2009] UKUT 185 (AAC) at [5]–[6].Who may exercise the power
15.53The power is conferred on the tribunal. The composition and constitution of the tribunal will be governed by the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 and practice statements issued thereunder. The power has not been confined to a tribunal of the same constitution as made the decision. It is not within the Senior President’s practice statements on the delegation.
7See chapter 7. There is, though, no reason in principle why the former presiding judge should not undertake the review.
8AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) at [26]–[27]; DL v London Borough of Redbridge [2010] UKUT 293 (AAC) at [15]–[19].15.54If the First-tier Tribunal sets a decision aside, it may re-decide it or refer the matter to the Upper Tribunal (s9(5)); the Upper Tribunal must re-decide a matter that is referred to it (s9(6)).
9The procedure before the Upper Tribunal is governed by Lands Rules r45 and UTR r26A. If the Upper Tribunal sets a decision aside, it must re-decide the matter (s10(5)). Only the matter that was the subject of the decision may be re-decided or referred. If a Tribunal re-decides a matter, it may make appropriate findings of fact (ss9(8) and 10(6)). If the Upper Tribunal decides a matter on referral, it may make any decision that the First-tier Tribunal could have made (s9(7)).
The tribunal’s approach to review
15.55The fact that a tribunal is undertaking a review of its own decision is significant. In
DK (Serbia) v Secretary of State for the Home Department,
10[2007] 2 All ER 483. the Court of Appeal emphasised the importance of this feature in the context of the reconsideration powers of the former Asylum and Immigration Tribunal. Latham LJ explained:
11[2007] 2 All ER 483 at 20 and 22.The jurisdiction is one which is being exercised by the same tribunal, conceptually, both at the first hearing of the appeal, and then at any reconsideration. That seems to me to be the key to the way in which reconsiderations should be managed in procedural terms.
As far as what has been called the second stage of a reconsideration is concerned, the fact that it is, as I have said, conceptually a reconsideration by the same body which made the original decision, carries with it a number of consequences. The most important is that any body asked to reconsider a decision on the grounds of an identified error of law will approach its reconsideration on the basis that any factual findings and conclusions or judgments arising from those findings which are unaffected by the error of law need not be revisited. It is not a rehearing: Parliament chose not to use that concept, presumably for good reasons. And the fact that the reconsideration may be carried out by a differently constituted tribunal or a different Immigration Judge does not affect the general principle of the 2004 Act, which is that the process of reconsideration is carried out by the same body as made the original decision. The right approach, in my view, to the directions which should be considered by the immigration judge ordering reconsideration or the Tribunal carrying out the reconsideration is to assume, notionally, that the reconsideration will be, or is being, carried out by the original decision-maker.
Content and tone of review decisions
15.56The reasons given in a review decision may be quite short and assume that the parties understand the background. They need not be of the length, or in the style, appropriate for a self-contained decision of the Upper Tribunal that has to be understood without the parties’ knowledge of the case.
12R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC) at [32].15.57In
R v Lancashire County Council ex p Huddleston,
13[1986] 2 All ER 941. Sir John Donaldson MR said: ‘judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence’.
14[1986] 2 All ER 941 at 945. The same tone is appropriate for review decisions.
Applications for permission to appeal
15.58For the most part, the review powers may only be exercised on an application for permission. On the face of it, this allows any party to initiate the review process by submitting a document in the form of an application for permission against any decision and at any stage of the proceedings. However, even if this would be sufficient to initiate the review process, the tribunal would probably exercise its discretion to refuse to review. The need for an application for permission prevents the tribunal from exercising the power of review on its own initiative.
15JS v Kingston upon Hull City Council [2014] UKUT 0043 (AAC).Review and appeal
15.59There is a tension between the scope of a review and an appeal in the case of errors of law. Two issues arise. First, when is the review power available? It is only available if the tribunal is satisfied that there is an error of law. In contrast, permission to appeal may be given if it is merely arguable that there is an error. Second, when should the review power be used? It is discretionary, so permission may be given if the case is an appropriate one for the Upper Tribunal even if review is available. In
Compagnie Noga D’Importation et D’Exportation SA v Abacha, Rix LJ said although courts could correct their own mistakes, they should not subvert the appeal process.
16[2001] 3 All ER 513 at [47]. In
R (RB) v First-tier Tribunal (Review),
17[2010] UKUT 160 (AAC). the Upper Tribunal took the same approach.
Similar powers
15.60The TCEA makes it clear that the review procedure is not a comprehensive code. It also provides separately for correcting accidental slips and for setting aside a decision on procedural grounds.
18See paras 15.26 onwards.15.61Legislation may also make specific provision for decisions to be set aside on procedural or substantive grounds.
19Social Security Act 1998 s13(3) requires a tribunal to set aside a decision if each of the principal parties expresses the view that it was erroneous in point of law. Child Support Act 1991 s23A(3) makes equivalent provision for child support. In practice, the other parties are only asked if they agree with an application for permission to appeal if it is made by the Secretary of State.15.62It is not clear if reconsideration
20See chapter 7. of an interlocutory decision continues to operate outside the review process or is subsumed within the review process. If it is subsumed, a decision not to reconsider will bar any further review.