Jurisdiction and errors of law/fact

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‘Jurisdiction’ refers to a legal power to decide something or make some determination which is of legal effect

Courts have jurisdiction in respect of certain types of claim e.g. the High Court has an inherent jurisdiction to hear claims for judicial review

But, ‘jurisdiction’ can also refer to the legal authority to decide where the decision maker is a public body. For example:

  • The local authority has jurisdiction to decide on claims for housing benefits
  • A university has jurisdiction to award degrees
  • The Home Office has jurisdiction to decide claims for asylum

The concept of jurisdiction is really important in judicial review because the court will often be reviewing whether the public body has acted within its jurisdiction or out its jurisdiction

  • If the public body has acted outside of its jurisdiction it has acted ultra vires
  • In other words, in judicial review the court will determine whether a public body has acted within the legal powers conferred to it and, consequently, whether the decision it made was a lawful and valid one

Before 1969, the court usually only interfere with a public body’s determination of an issue if the public body had exceeded its jurisdiction.

In the landmark decision of Anisminic, the court extended its ability to judicially review the decision making of public bodies by suggesting that ANY error of law made by a public body (including those within its jurisdiction) could be nullified in judicial review proceedings

  • What constitutes an error of law is seen below…

Errors of Law

An error of law by a public body may include:

  • The application of the wrong legal ‘test’
  • Acting in bad faith
  • Not taking something into account that (by law) ought to have been taken into account
  • Determining an issue that is not for that decision maker to determine

So, Anisminic suggests that any of these errors of law may nullify a decision of a public body - even if these errors are made within the jurisdiction of the decision maker!

Jurisdiction v Errors of law

Pre-Anisminic the question for the court in judicial review cases was whether or not the public bodies’ decision was within their area/domain (i.e. whether it was within their jurisdiction)

Post-Anisminic the question for the court in judicial review cases was whether or not the public body had made their decision without an error of law

  • For example, your university provides education in the city it is in, but if it tried to open a theme park in a different city that would be a pre-Anisminic excess of jurisdiction
  • If your local council is responsible for setting primary school policy, but in doing so fails to consider certain legally required considerations, it would be acting within its domain, but would have made a judicially reviewable error of law

Beyond Anisminic

Anisminic enhanced the role of the Administrative Court to ultimately correct any error of law made by any public body (or at least this is how Anisminic was understood by the courts in the years that followed)

But there are exceptions to this general principle…

For example, see R v Hull University Visitor, ex parte Page [1993]

  • Although it seems that the university had erred in law, because it dismissed a lecturer for a reason other than those prescribed by the statutes (something that the approach in Anisminic would deem unlawful), the House of Lords took a different approach
  • The university officers had been conferred a specific jurisdiction to act in the interests of the university, and it is not for the court to interfere with the exercise of discretion within that jurisdiction. This includes where the university acts upon an error of law

Also see the case of R (Cart) v Upper Tribunal [2011]

So, are public bodies entitled to make errors of law?

Not if the error is a jurisdictional error i.e. the public body acted outside their domain/area

But, they may be able to make an error of law if that error of law relates to a specific, localised jurisdiction and that error resides within the jurisdictional domain/area of the public body (this was the case in R v Hull University Visitor, ex parte Page [1993])

The Upper Tribunal is entitled to make an error of law unless the error raises some important point of principle or practice, or unless there is some other compelling reasons for its decision to be judicially reviewed (R (Cart) v Upper Tribunal [2011])

Errors of Fact

In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts

  • Such a question is distinct from a question of law, which must be answered by applying relevant legal principles.

So, in judicial review, as seen above, it is possible for the Administrative Court to correct errors of law

However, in general, it is not open to the Administrative Court to correct errors of fact in judicial review proceedings

See, for example, R v Hillingdon LBC, ex parte Puhlhofer [1986]

  • Whether the family were enjoying ‘accommodation’ under the terms of the Act was a question of fact. And Parliament, in enacting the 1977 Act, entrusted the local authority with that determination of fact; it was not open to the Administrative Court to substitute its assessment as to the facts for those of the local authority.

Also see Ex parte South Yorkshire Transport [1993] and Runa Begum v Tower Hamlets LBC [2003] UKHL 5

Why shouldn’t the Administrative Court decide questions of fact?

Parliament has intended for questions of fact to be decided and determined by the public body and not anyone else

That public body is more likely to know (for example) the local housing conditions and the availability of housing stock

The public body’s determination of fact, therefore, provides for a degree of finality

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Fundamental Errors of Fact

What if the local authority makes an error of fact that is so fundamental that it goes to the very jurisdiction—the legal power and responsibility of the public body?

  • In other words, certain questions of fact are so important that perhaps they are jurisdictional – this is a bit of an oxymoron!

See for example R (A) v Croydon LBC [2009]

  • Although the determination of the claimants’ ages in this case were questions of fact, they were facts precedent to the local authorities’ jurisdiction and were therefore ultimately subject to scrutiny by the Administrative Court in judicial review

How can we distinguish R (A) v Croydon LBC [2009] from R v Hillingdon LBC, ex parte Puhlhofer [1986]

  • In R (A) v Croydon LBC [2009], the determination of fact was also a jurisdictional question - it went to the very question of whether the Children Act applied – so could be judicially reviewable
  • In other words, in these cases the Administrative Court may ultimately correct an error of fact made by the public body


Questions of law may be decided by public bodies with jurisdiction to so decide. Errors of law may be corrected by the Administrative Court, except in cases such as Page and Cart

Questions of fact are for the decision maker alone to determine, except where the question of fact relates to the very jurisdiction which is at stake - such as in R (A) v Croydon LBC

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