Overview

Herbert Smith examines a recent decision of the Court of Appeal (R. (C) v Upper Tribunal [2010] EWCA Civ 859), which affirmed that decisions of the Upper Tribunal are susceptible to judicial review in limited circumstances.

Key points:

• The Upper Tribunal is not the "alter ego" of the High Court. Despite having wide powers conferred on it by statute, including a judicial review function, the jurisdiction of the Upper Tribunal is limited and thus is susceptible to judicial review by the High Court.
• Judicial review of the Upper Tribunal is only available where the Upper Tribunal decides a case it had no authority to decide or where the right to a fair hearing has been denied.
• The role of judicial review in respect of decisions of the Upper Tribunal is to secure the boundaries of the system but not invade it.

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