The contribution of the Upper tribunal to the first-tier tribunal’s work

Introduction

The reform of the haphazard system of tribunals in the UK has often provided a neat symmetry with the chaos the system has been vehemently criticized for. It has taken half a century for the Tribunals, Courts and Enforcement Act 2007 to be given royal assent, which Bradley & Ewing rightly suggest being the fulfillment of the conclusions of the influential Franks Committee of 1957, constituted to provide a once-in-a-generation review of tribunals and inquiries in the UK[1]. The Franks Committee concluded that tribunals are “machinery provided by Parliament for adjudication,” the operation of which should be fair, open, and impartial[2]. Thus at one legislative stroke the proliferation of tribunals in the last century, which moved the then Lord Justice Woolf to author a paper entitled “a hotchpotch of appeals – the need for a blender”[3], has now been significantly curtailed by the 2007 Act which established two tiers of tribunals to simplify what was becoming unaccountable, undemocratic and in violation of ECHR treaty convention rights[4]. A review in 2001, formed under the auspices of the then Labour Government and the main catalyst for the 2007 Act, found that there were 70 different tribunals across England and Wales and that a number of them were obsolete[5]. The Government’s response in the White Paper Transforming Public Services: Complaints, Redress and Tribunals[6] laid the foundations for the unified system which now prevails. The problems of the past which plagued tribunals are of “historical interest” in the words of Bradley & Ewing[7].

In the context of mental health, the relevant first-tier tribunal chamber is the Health, Education and Social Care Chamber and in the Upper Tribunal, the relevant chamber is the Administrative Appeals Chamber which can hear appeals, with leave from the first-tier tribunal, on points of law only and exercises a judicial review function[8]. The two tiers of tribunals opened for business in November of 2008[9] and the first case in the context of mental health heard by the Administrative Appeals Chamber was heard in 2009[10]. Thus there have been almost three years of cases to evaluate the effectiveness of the Upper Tribunal’s contribution towards enhancing the safeguarding role of the first-tier tribunal in mental health cases[11]. In total there have been 28 cases hearing appeals from the Health, Education, and Social Care Chamber within this time[12]. It is very early in the life of the unified system to conclusively say whether it is enhancing the system[13] but Bradley & Ewing make some general observations on the advantages the two-tier system is bringing which are relevant to the mental health sphere:

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“One valuable result of the two-tier structure is to rationalize the diverging procedures that separate tribunals had used. This task has been carried out by the Tribunal Procedure Committee, Chaired by a Court of Appeal judge. The aims of the procedure rules include that of ensuring that in tribunal proceedings ‘justice is done’; that the tribunal system is ‘accessible and fair’; that proceedings are handled ‘quickly and efficiently’; and that the rules are ‘both simple and clearly expressed’”[14]. The administrative advantages of a unified system[15] are perhaps obvious but the case law has revealed some potential weaknesses with the Supreme Court recently holding that the Upper Tribunal is amenable to judicial review itself[16]. This essay will critically analyze the contribution of the Upper tribunal to the first-tier tribunal’s work over the past three years by analyzing the statutory basis of the tribunal in part 1 as well as the decided case law in the context of mental health. The essay will then, in part 2, discuss the strengths and weaknesses of the current system and conclude that the new Upper Tribunal is indeed enhancing the work of the first-tier tribunal as demonstrated by the high number of successful appeals, the innovative judicial review function and ECHR compliance under article 6.

Part 1: The Upper Tribunal in mental health

1.1 The Administrative Appeals Chamber and the 2007 Act

S.3(5) of the 2007 Act confers on the Upper Tribunal the status of a “superior court of record”[17]. As noted above in the introduction the Upper Tribunal is split into three Chambers with the Administrative Appeals Chamber dealing with, inter alia mental health cases, with its functions split neatly into three categories: appellate, judicial review and referral[18]. The ordinary appellate procedure on a point of law derives from article 7(a) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2008 and, in the context of mental health, is able to hear an appeal “against a decision made by the first-tier tribunal”[19] but only in respect of a point of law which is not an “excluded decision” under s.11(5)(a) – (f). With respect to the novel judicial review function, what Lady Hale of Richmond called “a major innovation in the 2007 Act”[20], under article 7(b) of the 2008 Order this function has been transplanted from the High Court with the Administrative Appeals Chamber able to grant the following kinds of relief: a mandatory order, a prohibiting order, a quashing order, a declaration and an injunction[21]. This function has been qualified by the Lord Chief Justice in England and Wales who issued a practice direction to the effect that the relief of judicial review will be available where there is no power of appeal to the Upper Tribunal and where the decision is not an excluded one[22]. Finally, the Administrative Appeals Chamber also has a referral function where cases may be transferred from the First-Tier Tribunal to the Upper Tribunal under s.9(5) of the 2007 Act where the First-Tier Tribunal has set aside a decision.

Lady Hale noted in the Supreme Court that the appellate procedure is the most important function of the Administrative Appeal Chamber[23] although her Ladyship pointed out that this right can only be exercised with the permission of either the First-tier or Upper tribunal under ss11(3) and 11(4). The judicial review function of the Upper Tribunal is indeed a novel feature of the new system and, as demonstrated above, shares features with the judicial review available in the courts[24]. A curiosity of the system arose in 2011 in the Supreme Court where it was decided that decisions of the Upper Tribunal are amenable to judicial review in the High Court, a decision which Phillip Murray suggests undermines the advances the unified system represents[25] and which will be discussed in part 2 of this essay[26].

1.2 Case law in mental health

As noted in the introduction there have been 28 cases in the three years of the 2007 Act’s life that relate specifically to mental health law[27]. In order to determine whether or not the Upper Tribunal is enhancing the safeguarding role of the First-Tier Tribunal, the Health, Education and Social Care chamber, it is important to analyze the case law both qualitatively and quantitatively. In quantitative terms, the appellate procedure is being used in the Upper Tribunal in the majority of cases with judicial review used very sparingly. In all cases heard in 2011, 13 in total, four were successful appeals with the decision of the First-Tier tribunal set aside[28] while in just one case the decision was taken not to set aside the decision despite the successful appeal[29]. In two cases no error on a point of law was discovered by the Upper Tribunal[30] and in only one case was the appeal dismissed entirely[31]. In another case permission to appeal was refused[32] and, to emphasize the young nature of the tribunal two cases were dedicated to in-depth discussions of tribunal procedure about the open justice principle[33] and the revocation of Community Treatment Orders (CTO’s)[34].

The final decision[35] deserves closer attention in light of the fact that it is the only judicial review decision of 2011[36] and but the second judicial review in all three years[37]. The facts, in this case, were that while P was serving a five months’ sentence for various criminal offenses he was sentenced to a further nine months’ in relation to an assault. On 21st October 2008, the Secretary of State used his powers under s.47 of the Mental Health Act 1983 to have P transferred to a psychiatric hospital. P then appealed against this decision to detain him to the First-Tier Tribunal on 19th February 2010 which ordered his discharge. A further appeal was made within the power of the First-Tier tribunal to review and set aside its own decisions and thus Judge Foster agreed to set aside the decision under Rule 45 of the Tribunal owing to a discussed Community Treatment Order which Judge Foster felt invalidated the original decision. A further appeal was then heard by Judge Foster against her own decision which led to the present judicial review proceedings. In essence, Judge David Pearl reinstated the original First-tier tribunal decision of 19th February 2010 and observed:

“In this case, given the findings made by the First-tier Tribunal in its decision dated 19th February 2010, the tribunal was under a positive duty to direct a discharge, albeit deferred for a period of six weeks to enable after-care arrangements to be put in place. It follows therefore that Judge Foster’s two decisions must be quashed. Both of those decisions are unlawful, in that they are predicated on a reading of the First-tier Tribunal’s decision which can in no way be justified.”[38]

Part 2:Discussion of the Administrative Appeals Chamber

2.1 Enhancing the first-tier tribunal?

(a) Weaknesses

Despite the fact that the Administrative Appeals Chamber has only been in operation for a short time there are some evident weaknesses in the way case law has developed which arguably undermines rather than enhance the First-Tier tribunal’s role[39]. The most obvious weakness is the fact that the decisions of the Upper Tribunal are amenable to judicial review[40]. Perhaps it was wishful thinking that unappealable decisions of the Upper Tribunal would not be subject to judicial review and that the two-tier system would continue to be “authoritative, efficient and self-contained” as Phillip Murray points out[41]. There was a clear intention by Parliament in the drafting of the 2007 Act that the Upper Tribunal would have the final say as to whether any appeal from the First Tier Tribunal on a point of law should be allowed and, since there is little difference between an appeal on a point of law and a judicial review[42], a judicial leak has appeared in what was, until the Supreme Court’s decision[43], a very tight and secure system. The implications of allowing review of the Upper Tribunal’s decisions are, in Murray’s opinion, grave:

“Judicial review is not, like appeal, concerned with settling important points of principle or practice. Rather, its concern is with vires – that is, ensuring that decision-makers act within the four corners of their power – as well as questions of procedural fairness. This is the primary focus of the Sivasubramaniam model, and it would have been preferable as a result. Such an approach would have maintained the orthodox constitutional basis for review, avoided floating Parliament’s express will, and ensured proportionate protection of the rule of law.”[44]

(b) Strengths

The strengths of the administrative appeals chamber certainly outweigh the main weakness identified above in enhancing the First-Tier Tribunal. The high number of successful appeals which have, in the context of mental health and explored earlier, set aside decisions of the first-tier tribunal are obvious indicators of the Upper Tribunal enhancing the First-Tier Tribunal’s safeguarding role by ensuring justice is done[45]. Thus in the 28 cases, it is apparent that erroneous decisions are being caught and corrected with appropriate procedures whether that is having the decision set aside or remitted back to a reconstituted First-Tier Tribunal.
The use of the judicial review function is both innovative and flexible and has, in two key decisions, proved to be invaluable in reversing procedural decisions taken at first instance[46]. In the Mersey case, the internal review procedure of the First Tier Tribunal was simply ineffective and it took the Upper Tribunal to step in and rectify matters under judicial review in an impartial and independent manner.
The Administrative Appeals Chamber enables the First-Tier Tribunal to be compatible with article 6 of the European Convention on Human Rights both in terms of independence and also in terms of procedural fairness.

Conclusion

In conclusion, the Administrative Appeals Chamber has, in its short lifep, enhanced the safeguarding role of the First-Tier tribunal within the new unitary system ushered in by the Leggatt Review of 2001[47]. In the context of mental health cases, there have been 28 in total in the 3 years of the 2007 Act’s operation which serves to validate the work of the Upper Tribunal. As can be expected the number of appeals is relatively modest but clearly the Upper Tribunal is performing a vital function in holding the First-Tier tribunal to account and, where appropriate, setting aside its decisions. In terms of the novel judicial review function, this has been used only twice in the context of mental health but has demonstrated a willingness by the tribunal system to deploy it when natural justice demands it.

The fact that the First-Tier Tribunal can review its own decisions is not in itself an adequate safeguard and the case of MP v Mersey Care NHS Trust[48] is a useful reminder that the first instance tribunals, just like courts, need to be supervised independently. The Upper Tribunal also ensures vital article 6 compliance. This aspect enhances the whole system which can now survive scrutiny from Strasbourg. The one main weakness, that the Upper Tribunal is susceptible to judicial review itself, is in reality a technical one and something that is unlikely to become a crippling problem. Overwhelmingly the Upper Tribunal has enhanced the First-Tier Tribunal in its short life.

Reference

1. Bradley, AW & Ewing, KD (2011) Constitutional & Administrative Law Pearson: Worldwide
2. Creyke, Robin (2008) Tribunals in the Common Law World Federation Press: Sydney
3. Jacobs, Edward (2010) Tribunal Practice and Procedure: Tribunals under the Tribunals, Courts and Enforcement Act 2007 Legal Action Group: UK
4. Thompson, Brian (2010) ‘Current Developments in the UK: System Building – From Tribunals to Administrative Justice’ in Adler, Michael (ed) Administrative Justice in Context Hart Publishing: Oregon and Portland at p.484
5. Case Comment (2011) ‘Tribunal Merger may “dilute rather than enhance” expertise, Lady Hale warns’ Solicitors Journal 155(25), 3
6. Gledhill, Kris (2009) ‘The First Flight of the Fledgling: The Upper Tribunal’s Substantive Debut’ Journal of Mental Health Law Spring 81-93
7. Mitchell, Gareth (2010) ‘Judicial Review, but not as we know it: Judicial Review in the Upper Tribunal’ Judicial Review 15(2), pp112-117
8. Murray, Phillip (2011) ‘Judicial Review of the Upper Tribunal: Appeal, Review, and the Will of Parliament’ in Cambridge Law Journal 70(3), pp487-489
9. Rutledge, Desmond (2011) ‘Practice and Procedure: Jurisdiction – Scope for Judicial Review of Upper Tribunal Decisions by High Court’ Journal of Social Security Law 18(4) pp135-137
10. Leggatt, Andrew (2001) Tribunals for Users, One System, One Service accessed on 20/12/2011 and available from http://webarchive.nationalarchives.gov.uk/+/http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm
11. Report of the Franks Committee, Cmnd 218, 1957, parts II and III
12. Transforming Public Services: Complaints, Redress and Tribunals CM 6243, 2004
13. Tribunals, Courts and Enforcement Act 2007
14. European Convention on Human Rights article 6
15. First-tier Tribunal and Upper Tribunal (Chambers) Order 2008
16. AH v West London Mental Health Trust and another [2011] AACR 15
17. CM v DHNHSFT and Secretary of State (Justice) [2011] UKUT 129 (AAC)
18. Dorset Healthcare NHS Foundation Trust v MH [2009] UKUT 4 (AAC) (UT)
19. DN v Northumberland Tyne & Wear NHS Foundation Trust [2011] UKUT 327 (AAC)
20. JLG v Managers of Llanarth Court & SOS for Justice [2011] UKUT 62 (AAC); DP v Hywel DDA Health Board [2011] UKUT 381 (AAC)
21. KL v Somerset Partnership NHS Foundation Trust [2011] UKUT 233 (AAC)
22. MB v BEH MH NHST & SoSJ [2011] UKUT 328 (AAC)
23. PS v Camden and Islington NHS Foundation Trust [2011] AACR 42
24. (on the application of Cart) v Upper Tribunal [2011] UKSC 28 (SC)
25. R (On the application of Cart) (Appellant) v The Upper Tribunal [2011] UKSC 28
26. RN v Curo Care/ OE [2011] UKUT 263 (AAC)
27. RB v Nottinghamshire Healthcare NHS Trust [2011] UKUT 73 (AAC)
28. TR v Ludlow Street Healthcare Ltd and TR [2011] UKUT 152 (AAC)
29. http://www.administrativeappeals.tribunals.gov.uk/Decisions/decisions.htm

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