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.

In the recent case of R (on the application of Cart) v The Upper Tribunal and others, the Court of Appeal has ruled that decisions of the Upper Tribunal (UT) can still be challenged by judicial review, but only on the grounds of outright excess of jurisdiction or denial of procedural justice. This particular case concerned child maintenance but this decision will have implications for all decisions of the UT which can include mental health matters.

The examples given where the High Court might need to step in were:  

  • if the UT made an order giving a money judgment which it had no power to give;  
  • if a member of the UT were to sit when ineligible or disqualified; or  
  • if the UT conducted a hearing so unfairly as to render its decision a nullity.

They explained that this list was not exhaustive but illustrated the kind of error, although likely to be rare, that would take the UT outside the range of its decision-making authority.