Upper Tribunal
What is the Upper Tribunal?
The Upper Tribunal is a newly created court of record with jurisdiction throughout the United Kingdom. It has been established by Parliament under the Tribunals, Courts and Enforcement Act 2007. Its main functions are:
- To take over hearing appeals to the courts, and similar bodies from the decisions of local tribunals;
- To decide certain cases that do not go through the First-tier Tribunal
- To exercise powers of judicial review in certain circumstances ; and
- To deal with enforcement of decisions, directions and orders made by tribunals.
What has changed?
- A major reorganisation of tribunals is taking place. Most tribunals are being combined into a single First–tier Tribunal with jurisdiction for some purposes throughout the United Kingdom. The Upper Tribunal has been created to deal with appeals from, and enforcement of, decisions of the First–tier Tribunal.
- All the legally qualified members of the First–tier Tribunal and Upper Tribunal are now judges (that includes all of those judicial office holders who transferred into the new tribunals structures with their jurisdictions (for example the Lands Tribunal, the Social Security and Child Support Commissioners). Other judicial office holders (for example the surveyors in the Lands Chamber (Lands Tribunal) and disability experts in social security cases) are known as Members. All new judges and members are appointed through the independent Judicial Appointments Commission.
- The opportunity provided by these changes is being used to reform and simplify the rules and procedures for jurisdictions as they move into the First–tier Tribunal and Upper Tribunal.
Note that some of the rules, particularly about time limits, may differ from the rules that applied before, e.g. time limits for appeals to the Social Security Commissioners. Rules changes for the Lands Chamber are minimal – more extensive changes will come into force after consultation.
How does it work?
The Upper Tribunal is divided into four chambers:
- The Administrative Appeals Chamber (started work on 3 November 2008)
- The Tax and Chancery Chamber (started work on 1 April 2009, was known as the Finance and Tax Chamber up until 1 September 2009)
- The Lands Chamber (started work on 1 June 2009)
- The Immigration and Asylum Chamber (started work on 15 February 2010)
Who are the judges?
All the decision-makers in the Upper Tribunal are judges or members. Both judges and members take the judicial oath, and their judicial independence is protected in the same way as court judges under the Constitutional Reform Act. They are specialists in the areas of law they handle.
Some of the judges and members are full time appointments to the Upper Tribunal. For example, Social Security Commissioners who transferred in are now Judges of the Upper Tribunal. Surveyor members of the Lands Tribunal have transferred into the Lands Chamber and continue to hear cases as they did previously. Judges of the High Court in England and Wales, of the Court of Session in Scotland, and of the High Court in Northern Ireland, along with other judges may also sit as full-time or part-time Judges of the Upper Tribunal.
In the Upper Tribunal cases are usually decided by a judge (or often in the Lands Chamber, a member) sitting alone. However in complex or novel cases or if the Chambers President considers it appropriate, a tribunal may be comprised of more than one judge sitting with expert member(s) if required.
What is a superior court of record?
There are two practical points of importance. First, as the name suggests, a decision of the Upper Tribunal is a binding decision on the tribunals and public authorities below.
Second, and linked with this, it has powers both to enforce its own procedures and the procedures of the First–tier Tribunal.
What is judicial review?
As part of its new powers, the Upper Tribunal has powers to conduct a judicial review of decisions or actions that cannot be appealed.
The High Court in England and Wales, the Court of Session in Scotland, and the High Court in Northern Ireland all have power to transfer judicial review applications to the Upper Tribunal.
For England and Wales, Lord Judge, the Lord Chief Justice, made a Direction on 29 October 2008 with effect from 3 November 2008 transferring two classes of application for judicial review from the High Court to the Upper Tribunal.
The two classes are applications for judicial review of:
- Decisions of the First-tier Tribunal on appeals against review decisions of the Criminal Injuries Compensation Authority
- Decisions of the First-tier Tribunal made under its new Procedure Rules where there is no right of appeal to the Upper Tribunal against the decision in question.
