If the First-tier Tribunal makes a material error of law, can the Upper Tribunal in judicial review proceedings uphold the FTT decision?

Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber) & Anor & (1) Kenneth Mailer & (2) Lewis Haigh [2018] EWCA Civ 1175

Why is it important?

Considers whether the Upper Tribunal (UT) is entitled, in judicial review proceedings, to uphold a decision by the First-tier Tribunal (FTT) despite finding that the FTT has made a material error of law.

What happened?

The Criminal Injuries Compensation Authority (CICA) refused two applications for compensation on the basis that the employees (a firefighter and a police officer) who had been injured at work were conducting the normal duties of their role and had not taken an exceptional risk. The employees appealed and the FTT reversed the CICA’s decision, finding that the risks had in fact been exceptional.

The CICA sought judicial review of the FTT’s decision in the UT. The UT agreed that the FTT had made a material error of law by assessing the nature of the risk not just by reference to what the employees knew or believed when they took them, but in light of subsequently discovered facts. Despite that, it upheld the FTT decision.

The CICA appealed the UT’s decision.

What did the court say?

The Court of Appeal found that, in relation to one of the employees, the UT had taken an improper approach – since the UT had relied on evidence which had not been before the FTT, it should have quashed the original decision and remitted the case back.

In the other case the UT had been entitled to uphold the decision of the FTT. While the error of law knocked out two of the reasons for the FTT’s decision, it left the third unscathed. The third reason was sufficient on its own, and a different decision would not have been open to the FTT if the matter had been remitted. The UT had accordingly been entitled to uphold the FTT’s original decision.

Take away

The UT may uphold a decision of the FTT even when the FTT has made a material error of law, provided it finds that the FTT’s decision would stand in spite of the error and there is therefore no reason to send it back for reconsideration.