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Refusal of leave to appeal to UT
I’ve just been refused leave to appeal to the UT by the UT because there is no arguable error of law (which, incidentally, makes me think the judge must’ve gone through the paperwork with his eyes closed). I’ve never had this happen before so not sure what to do next. I know that I can ask for a set-aside of the decision to refuse if there has been a procedural irregularity- how do I know whether there has been or not if I don’t have anything except the decision notice?
Can anyone give me any advice on how to proceed with this?
Ta.
You can apply directly to the Upper Tribunal for leave to appeal if you have been refused leave to appeal by a Judge at the first stage. You must do this within one month of the notice refusing you leave to appeal. (Can do a late request if UT think its fair for you to do so). You have to complete Form UT1 to make request and need to send 1st Tribunal decision notice aswell as statement of reasons with the form.
I had to do this recently as my client had applied for leave to appeal to UT herself without seeking specialist advice and had not realised that you have to identify an error of law. When she had her leave refused I then requested leave to appeal directly to UT which was granted.
It’s the UT itself that has refused permission to appeal- already been through the rigmarole with FTT…
Just to be clear, I’m not certain of this. However, my initial inclination is that you’d need to seek a JR through the Courts.
The upper tribunal has judicial review powers under section 15 of the Tribunals, Courts and Enforcement Act 2007 and an application can be made under article 28 of the Upper Tribunal Rules 2008.
The upper tribunal has judicial review powers under section 15 of the Tribunals, Courts and Enforcement Act 2007 and an application can be made under article 28 of the Upper Tribunal Rules 2008.
not sure that helps OP, who wants to challenge the UT’s decision?
You’ll need to look up the rules on that….my feeling would be a JR of the UT’s decision to the administrative court of the QBD, in which case you need to get your skates on… but i’d have to look it up to be sure .. then client will need solicitor/counsel/legal aid
S 13 of the 2007 Act deals with rights of appeal (this page: http://www.opsi.gov.uk/acts/acts2007/ukpga_20070015_en_2#pt1-ch2-pb3-l1g13)
Subsection 1:
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
BUT, Subsection 9 of S S13 of the 2007 specifically excludes from the right of appeal to the CA,
(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal)
Therefore, you cannot appeal to the CA and the only option woudl be JR, it seems.
unless anyone else thinks different?
JR is only possible in limited circs following the Court of Appeal decision in the Cart litigation last week….I don’t have a link to that decision to hand…(C1/2010/0239) but whilst it opened the door on the possibility of JR a litttle wider than the High Court did in the Cart case, it mostly reaffirmed the previous reading of those circs….the news story here on rightsnet from last week is a good precis
cart is here:
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2010/859.html&query=title+(+cart+)&method=boolean
but IMHO seems to be fairly fact specific. i don’t think it excludes review in OP’s circumstance, and certainly does NOT say that the UT cannot be reviewed.
[ Edited: 10 Aug 2010 at 05:42 pm by ClaireHodgson ]Thanks everyone