Office of Public Sector Information
29.Under this Act, the Administrative Justice and Tribunals Council (“the AJTC”) will adopt a role in relation to the supervision of tribunals similar to that currently exercised by the Council on Tribunals. But in addition to taking on the Council on Tribunals’ current remit, the AJTC will be charged with keeping the administrative justice system as a whole under review. It is tasked with considering how to make the system more accessible, fair and efficient, and advising the Lord Chancellor, the Scottish Ministers, Welsh Ministers and the Senior President accordingly.
30.The AJTC’s wider administrative justice role will be concerned with ensuring that the relationships between the courts, tribunals, ombudsmen and alternative dispute resolution routes satisfactorily reflect the needs of users.
31.The AJTC will be of a comparable size to the present Council on Tribunals, with between 10 and 15 members appointed by the Lord Chancellor, and by Ministers from the devolved administrations. One of those appointed members will be nominated by the Lord Chancellor, after consultation with the Scottish and Welsh Ministers, to chair the AJTC. Whereas the Council has just a Scottish Committee, the AJTC will have Scottish and Welsh Committees.
32.Tribunals have no enforcement powers of their own. If a monetary award is not paid then, in England and Wales, the claimant must register it in the county court and use the enforcement methods available there (for example see section 15 of the Employment Tribunals Act 1996). Transforming Public Services undertook to simplify the system so that an award of compensation, whether ordered by the tribunal or agreed between the parties (under compromises involving the Advisory, Conciliation and Arbitration Service (ACAS)), can be enforced with the minimum of bureaucracy as if it were an order of the civil courts.
33.The Act will remove the need for registration of unpaid awards in the county court or the High Court and provide that they can be enforced as if they bear the right to a warrant of execution. Claimants will be able to go directly to the county court or High Court for enforcement.
34.Essentially, the legislative changes will (a) allow claimants to proceed immediately to enforcement (levelling the playing field between tribunal users and other civil claimants), and (b) ensure that those owed money as a result of a tribunal hearing can benefit from improvements to the wider civil enforcement system.
35.The procedure for enforcing tribunal awards in England and Wales (and Northern Ireland), and ACAS brokered agreements (see section 142), will become similar to the Scottish process, in that the award will be treated as enforceable without any intermediate steps being necessary. Part 1 of the Act does not alter the methods of enforcement either in Scotland or in England and Wales (or Northern Ireland), but allows tribunals to benefit from them.
36.In addition, the Act provides for unpaid awards to be entered on the Register of Judgments, Orders and Fines, see paragraph 55 of Schedule 8, (which may be searched by banks, building societies, and credit companies when considering applications for credit). The Act also makes it easier for the courts to obtain information about the debtor, as claimants will be able to make information requests under the provisions contained in Part 4 of the Act, which will help them to identify what kind of court action it would be appropriate to take to recover the debt.
37.Section 1 ensures that the duty imposed on the Lord Chancellor and other Ministers of the Crown under the Constitutional Reform Act 2005 (the CRA 2005), to uphold the continued independence of the judiciary, extends to all of the tribunal judges where a tribunal is administered by the Lord Chancellor. To do this, the definition of “the judiciary” in section 3 of the CRA 2005 is amended to make it clear that, so far as they are not already included within that definition, all office-holders listed in Schedule 14 to that Act, and certain additional tribunal office-holders are within that definition.
38.Section 2 creates a new statutory judicial post - that of Senior President of Tribunals. The post is intended to provide unified leadership to the tribunals judiciary. The creation of the post was recommended by Sir Andrew Leggatt in his review.
39.Subsection (1) stipulates that the Senior President is to be appointed by HM the Queen on the recommendation of the Lord Chancellor.
40.The Act creates a number of specific powers and duties for the Senior President, including:
his concurrence in relation to the chambers structure for the First-tier Tribunal and the Upper Tribunal (and any change in it) (section 7(1));
that he may, with the concurrence of the Lord Chancellor, make provision for the allocation of functions between chambers (section 7(9));
his duty to report to the Lord Chancellor on matters which the Senior President wishes to bring to the attention of the Lord Chancellor and matters which the Lord Chancellor has asked the Senior President to cover (section 43);
his power to make practice directions (section 23);
the right to be consulted on the making of fees orders (section 42(5));
his concurrence in relation to the making of orders prescribing the qualifications required for appointment of members of the First-tier Tribunal (Schedule 2, paragraph 2(2)) and the Upper Tribunal (Schedule 3, paragraph 2(2));
the power to request a judge of the First-tier Tribunal or the Upper Tribunal to act as a judge of those tribunals (Schedule 2 paragraph 6(2); Schedule 3 paragraph 6(2));
the duty to maintain appropriate arrangements for training, welfare and guidance of judges and other members (Schedule 2 paragraph 8; Schedule 3 paragraph 9);
the duty to co-operate with the Lord Chief Justices of England and Wales and Northern Ireland, and the Lord President in relation to the training, welfare and guidance of the tribunals judiciary (section 47);
the power to take oaths of allegiance and judicial oaths (or to nominate someone to do so) from judges and other members of the First-tier and Upper Tribunal (Schedule 2 paragraph 9, and Schedule 3 paragraph 10) and Chamber Presidents, Deputy Chamber Presidents and Acting Chamber presidents (Schedule 4, paragraph 8). Employment tribunal presidents and panel members, and their counterparts in the EAT are covered in Schedule 8 (paragraphs 40 and 44), as are Criminal Injuries Compensation Appeals Panel (CICAP) adjudicators (at paragraph 34);
the right to be consulted before the Lord Chancellor appoints a Chamber President from among the ranks of the judiciary (Schedule 4, paragraph 2(1));
the power to assign judges and other members to chambers (Schedule 4, paragraph 9);
being or nominating a member of the Tribunal Procedure Committee (it is expected that the Senior President or his nominee will chair the Committee) (Schedule 5 paragraph 20);
the power to request the appointment of additional members of the Tribunal Procedure Committee (Schedule 5 paragraph 24).
41.Subsection (3) sets out principles that the Senior President has to have regard to when exercising the powers of the office. These criteria are based on the long-standing principles underlying the jurisdiction of tribunals, as originally articulated by the Report of the Committee on Administrative Tribunals and Inquiries in 1957 (the Franks Report).
42.Schedule 1 sets out the process for appointing a Senior President and the terms of his office. This is a judicial appointment. The appointment is made by Her Majesty the Queen (section 2(1)), in line with the practice for senior judicial appointments generally. Her Majesty acts on the recommendation of the Lord Chancellor.
43.Paragraph 1 provides that if there is a vacancy, the Lord Chancellor must recommend a person for appointment to the office unless the Lord Chief Justice agrees that it may remain unfilled.
44.Paragraph 2 provides that there are two alternative routes for the Lord Chancellor to make a recommendation in relation to the appointment of the Senior President. The first is where the Lord Chancellor, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland agree on the nomination of a Lord or Lady Justice of Appeal or a member of the Inner House of the Court of Session as a suitable candidate for appointment. In such circumstances the Lord Chancellor must recommend the person for appointment unless that person refuses the recommendation or does not agree to the recommendation within a specified time or is otherwise not available to be recommended within a certain time. The second route applies when there is no such agreement. In those circumstances the Lord Chancellor must ask the Judicial Appointments Commission to select someone for recommendation for appointment.
45.Paragraphs 3 to 5 set out the process for selection by the Judicial Appointments Commission. It follows as closely as is appropriate the criteria and process for appointment of Heads of Division of the High Court under sections 67 to 75 of the CRA 2005.
46.Paragraph 3 provides that the eligibility requirement for the Senior President is the same as the eligibility requirement for a Lord or Lady Justice of Appeal, once amended by paragraph 13(2) of Schedule 10 to the Act.
47.Paragraph 4 inserts seven new sections into the CRA 2005. These sections create a process for the selection of the Senior President by the Judicial Appointments Commission which is the same as the process for appointment of a Head of Division of the High Court, except that the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland are consulted, because the Senior President has United Kingdom-wide responsibilities. The selection panel for the appointment of the Senior President consists of the Lord Chief Justice, or his nominee, a person designated by the Lord Chief Justice, the Chairman of the Commission or his nominee and a lay member of the Commission designated by the third member. The person designated by the Lord Chief Justice is intended to be a present or former office holder in tribunals to bring to the selection panel direct knowledge or experience of the distinctive nature of tribunals in the justice system.
48.Paragraphs 6 to 10 set out the terms of office for the Senior President. The Senior President may be appointed either for a fixed term or for an indefinite period subject only to the retirement provisions of the Judicial Pensions and Retirement Act 1993. The Senior President may only be removed from office by Her Majesty on an address presented to Her by both Houses of Parliament.
49.The Senior President may resign at any time. If the Lord Chancellor, the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland agree that the holder of the office is disabled by permanent infirmity and is incapacitated from resigning, the Lord Chancellor may instead declare the holder to have vacated the office.
50.Paragraph 11 provides that on appointment, the Senior President must take the oath of allegiance and the judicial oath (as set out in the Promissory Oaths Act 1868), in the presence of the Lord Chief Justice of England and Wales or another holder of high judicial office nominated by the Lord Chief Justice.
51.Paragraphs 12 to 14 describe the powers and responsibilities of the Senior President in relation to making representations to Parliament and Ministers about matters he considers to be of importance to tribunal judiciary and other members and matters relating to the administration of justice by tribunals. Paragraph 14 makes it clear that responsibility for representing the views of tribunal judiciary and other members to Parliament, and to the Lord Chancellor and Ministers of the Crown generally, rests with the Senior President of Tribunals.
52.Section 3 provides for the creation of a First-tier Tribunal and an Upper Tribunal, each consisting of judges (i.e. legally qualified members) and other members, and presided over by the Senior President of Tribunals. It is intended that the Upper Tribunal will primarily, but not exclusively, be an appellate tribunal from the First-tier Tribunal. The new tribunals are intended to be adaptable institutions, able to take on any existing or new tribunal jurisdictions. So in the future, when Parliament decides to create a new appeal right or jurisdiction, it will not have to create a new tribunal to administer it. The Upper Tribunal is a superior court of record, like the High Court and the Employment Appeal Tribunal.
53.Section 4 and Schedule 2 set out provisions relating to judges and other members of the First-tier Tribunal.
Section 4
54.Section 4 lists those persons who are to be the judges and other members of the First-tier Tribunal.
55.At present most tribunals include legally qualified members and members without a legal qualification. The qualification requirements which apply to the lawyers, who often chair the tribunal hearing a case, are varied. The range of non-legal members is very wide and includes members such as medical practitioners, accountants, people with experience of disability issues, people with experience of the armed services and so-called “lay” members. This structure will continue in the new tribunals, with the legally qualified members of the First-tier Tribunal being called judges of the First-tier Tribunal.
56.Judges and other members of the new tribunals will either be transferred in from existing tribunals, be appointed as such (“appointed judges/members”), or hold their office in the First-tier Tribunal by virtue of another office which they hold. So, for example, a circuit judge will automatically be a member of each of the First-tier Tribunal or the Upper Tribunal (by virtue of sections 4(1)(c), 5(1)(g) and 6). This will enable judges who have the appropriate expertise and experience, from holding judicial office in courts or other tribunals, to be brought into the new tribunals to help to deal with the tribunals’ work. Similarly, some members of other tribunals without legal qualifications will automatically be members of the new tribunals. The same principle will apply within the structure of the new tribunals, so that, for example, a judge of the Upper Tribunal will automatically be a judge of the First-tier Tribunal (section 4(1)(c)).
57.Paragraph 1(2) provides that a person is eligible for appointment as a judge of the First-tier Tribunal if he has a legal qualification and 5 years’ legal experience since qualifying.
58.But in addition, persons may be appointed if, in the Lord Chancellor’s opinion, they have legal experience which would make them as suitable for appointment as if they had the relevant legal qualifications. This provision, which is based on current eligibility requirements in relation to the Asylum and Immigration Tribunal and the Mental Health Review Tribunal, recognises that in the specialised fields in which tribunals operate, the necessary skills and knowledge may have been acquired by someone who does not have a professional qualification in the United Kingdom, such as a legal academic or someone qualified in a European or Commonwealth jurisdiction.
59.Paragraph 1(1) and 2(1) state that appointed judges and members of the First-tier Tribunal are appointed by the Lord Chancellor. Except where a member of an existing tribunal is transferred into the new tribunals under section 31(2), appointment takes place after selection by the Judicial Appointments Commission.
60.Paragraph 3 provides that appointed and transferred-in judges and other members of the First-tier Tribunal are protected by a prohibition on removal without the concurrence of the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or Lord Chief Justice of Northern Ireland.
61.Paragraph 4 ensures that appointed and transferred-in judges and other members of the First-tier Tribunal who are appointed on a salaried as opposed to a fee paid basis have the further protection of a provision that they may be only removed by the Lord Chancellor on the ground of inability or misbehaviour.
62.Both paragraphs 3 and 4 are intended to safeguard the independence of the tribunals.
63.Paragraphs 6 and 7 provide for ex-officio judges and members of the First-tier Tribunal. As mentioned above, the judges and members of the First-tier Tribunal will be made up partly of ex officio judges and members, i.e. those who hold office in the new tribunals by virtue of other offices they hold in the courts or tribunals. The deployment of those ex officio judges and members is to be under the control of the Senior President of Tribunals, in conjunction, in the case of judges from the courts, with the Lord Chief Justice of England and Wales, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland. Part 2 of Schedule 4 deals with the assignment of these judges and members to chambers.
64.Paragraph 8 ensures that the Senior President of Tribunals has responsibility for maintaining arrangements for the training, welfare and guidance of judges and other members of the First-tier Tribunal.
65.Paragraph 9 makes provision for judges and members of the First-tier Tribunal to take the oath of allegiance and the judicial oath before the Senior President of Tribunals, or before an eligible person nominated by the Senior President. The requirement under paragraph 9 does not apply, however, in the case of transferred-in judges or transferred-in other members who have already taken the required oaths after accepting another office. Judges and members who carry out functions mainly or wholly in Northern Ireland may be required to take instead the oath, or the affirmation and declaration, set out in section 19 of the Justice (Northern Ireland) Act 2002.
66.Section 5 and Schedule 3 set out provisions relating to the membership of the Upper Tribunal.
67.Section 5 lists those persons who are to be the judges and other members of the Upper Tribunal. Judges and members of an existing tribunal transferred into the Upper Tribunal under section 31(2) will automatically become judges and members of the Upper Tribunal (and of the First-Tier Tribunal) without further appointment.
68.Paragraph 1(2) provides that a person is eligible for appointment as a judge of the Upper Tribunal if he has 7 years of post-qualification experience (this is a standard qualification for judicial office). In addition, a person may be appointed to the Upper Tribunal if, in the Lord Chancellor’s opinion, he has gained experience in law which makes him as suitable for appointment as if he satisfied the 7-year qualification. Appointed judges of the Upper Tribunal are appointed by the Queen, on the recommendation of the Lord Chancellor. Appointment takes place after selection by the Judicial Appointments Commission.
69.Paragraph 3 ensures that appointed and transferred-in judges and other members of the Upper Tribunal are protected by a prohibition on removal unless there is first concurrence of the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or Lord Chief Justice of Northern Ireland.
70.Paragraph 4 provides that appointed and transferred-in judges and other members of the Upper Tribunal appointed on a salaried basis have the further protection that they may be removed only by the Lord Chancellor on the ground of inability or misbehaviour.
71.Both paragraphs 3 and 4 ensure that the independence of the tribunals is safeguarded.
72.Paragraph 6 allows for judges of the Upper Tribunal to be made up partly of judges by request of the Senior President of Tribunals. Their deployment is to be under the control of the Senior President of Tribunals in conjunction with the Lord Chief Justice of England and Wales, or if appropriate, the Lord President of the Court of Session or the Lord Chief Justice of Northern Ireland.
73.Paragraph 7 provides the Lord Chancellor with the power to appoint deputy judges of the Upper Tribunal. A person must have the same legal qualifications for appointment as a deputy judge as for appointment as a judge of the Upper Tribunal. The provision will enable the appointment to the Upper Tribunal of members with particular areas of expertise.
74.Paragraph 9 ensures that the Senior President of Tribunals has responsibility for maintaining arrangements for the training, welfare and guidance of judges and other members of the Upper Tribunal.
75.Paragraph 10 makes provision for judges and members of the Upper Tribunal to take the oath of allegiance and the judicial oath before the Senior President of Tribunals, or before an eligible person nominated by the Senior President. The requirement under paragraph 10 does not apply, however, in the case of transferred-in judges or transferred-in other members who have already taken the required oaths after accepting another office. Judges and members who carry out functions mainly or wholly in Northern Ireland may be required to take instead the oath, or the affirmation and declaration, set out in section 19 of the Justice (Northern Ireland) Act 2002.
76.Section 6 lists which judges are to be considered as members of both the First-tier Tribunal and the Upper Tribunal within England, Wales, Scotland and Northern Ireland by virtue of their judicial office in the courts. Temporary office holders or deputies are not included within the list.
77.Section 7 and Schedule 4 make provision for the organisation of the First-tier and Upper Tribunal into Chambers.
78.Currently, many separate tribunals deal with different jurisdictions. When these tribunals are replaced by just two tribunals, it will be necessary for the jurisdictions in the new tribunals to have an organisational structure. Section 7 provides for the establishment of boundaries for the jurisdictions within the First-tier and Upper Tribunal through the creation of chambers. The tribunals will bring together a wide range of specialist jurisdictions. It would dilute expertise and damage the service provided to the public if they were organised on the basis that all judges and members can deal with all kinds of case. Instead, jurisdictions will be grouped so that similar work is dealt with by judges and members with the relevant skills to deal with it. The chambers system is intended to be flexible so that changes can be made easily to those boundaries as the workload of the tribunals changes.
79.Subsection (1) provides that the Lord Chancellor, with the concurrence of the Senior President, will have the power to make provision for the organisation of each of the First-tier and Upper Tribunal into a number of Chambers. It makes provision for the structure of the tribunals to change over time: chambers may be merged and new chambers may be created
80.Jurisdictions within the First-tier and Upper Tribunals will be organised into chambers so that jurisdictions which are similar in nature are grouped together. The chamber structure is intended to facilitate judicial deployment (as judiciary with expertise across the chamber can be deployed on more than one type of case). The chamber structure is also intended to facilitate judicial development and the preservation of expertise where appropriate.
81.Subsection (2) states that for each chamber within the First-tier Tribunal and Upper Tribunal there must be a person, or two persons, to preside over that chamber. A person cannot preside over more than one chamber within the First-tier Tribunal at the same time. Likewise, a person cannot preside over more than one chamber within the Upper Tribunal at the same time, although they can preside over one chamber of the First-tier Tribunal and over one chamber of the Upper Tribunal at the same time (section 7(3)).
82.Subsection (4) confers the title Chamber President on someone appointed to preside over a chamber.
83.Subsection (9) provides for the Senior President and the Lord Chancellor, each with the concurrence of the other, to be able to vary by order the distribution of functions between the chambers in either the First-tier Tribunal or the Upper Tribunal. Chambers may be constructed on either a functional or a geographical basis, or a combination of the two.
84.It seems likely that Chambers will evolve over time, in response to:
the transfer of functions of other tribunals to the First-tier or Upper Tribunals;
changes in original decisions (for example as the social security benefit system evolves);
the creation of new areas of appeal (for example as has recently occurred in connection with the regulation of licensed gambling);
or in relation to the prevalence of a particular jurisdiction at a point in time, and other business and user needs. This may involve any or all of the following:
Establishment of new chambers;
Addition of jurisdictions to existing chambers;
Transfer of functions and/or jurisdictions between chambers.
Schedule 4
85.Schedule 4 makes further provision about chambers and Chamber Presidents.
86.Paragraphs 1 and 5 provide for the eligibility requirements to be a Chamber President or a Deputy Chamber President to be the same as those for appointment as a judge of the Upper Tribunal under Schedule 3.
87.Paragraphs 2 and 3 deal with the appointment of Chamber Presidents. This is a judicial leadership role involving particular skills and experience and as such it is a separate appointment under the Act. A Chamber President may (although need not) be drawn from the judiciary of the High Court or the Court of Session in Scotland or Court of Appeal in Northern Ireland. Before making an appointment from amongst the judges of those courts, the Lord Chancellor must first consult the Senior President of Tribunals. If the Lord Chancellor decides that the appointee should be from the senior judiciary, he must seek a nomination from the Lord Chief Justice of England and Wales or Northern Ireland, or the Lord President of the Court of Session. If a suitable candidate is not forthcoming, selection will be made by the JAC. The office of Chamber President will be added to Part 3 of Schedule 14 to the CRA 2005 for this purpose (Schedule 8 paragraph 66).
88.Paragraph 4 permits a Chamber President to delegate functions of his office to any judge or other member of the First-Tier or Upper Tribunal, or to a member of staff.
89.Paragraph 5 provides for the appointment of Deputy Chamber Presidents. Deputy Presidents are appointed by the Lord Chancellor after consultation with the Senior President of Tribunals and are intended to be available to take on functions delegated to them by the Senior President or the Chamber President. The appointment process for Deputy Chamber Presidents mirrors that for Chamber Presidents.
90.Paragraph 6 allows for the Senior President of Tribunals to appoint Acting Chamber Presidents to cover a temporary vacancy in the office of Chamber President.
91.Paragraph 7 places a duty on a Chamber President to make arrangements for the issuing of guidance (to for example judges, members and users) on changes to the law and practice relating to the jurisdictions assigned to his chamber.
92.Paragraph 8 provides for persons appointed as Chamber Presidents, or Deputy or Acting Chamber Presidents, to take the oath of allegiance and the judicial oath before the Senior President of Tribunals, or before an eligible person nominated by the Senior President
93.Paragraph 9 makes it clear that the assigning of judges and other members to chambers of the Tribunals is a function of the Senior President.
94.Paragraphs 10 to 12 provide that Chamber Presidents and Deputy Chamber Presidents are deemed to be assigned to the chamber(s) over which they hold office. Every other judge or member who is appointed under Schedule 2 or 3, or transferred in under section 31(2), must be assigned to at least one chamber. The process of assignment is intended to be flexible, informal and transparent. It is intended to be based upon the principle of deploying judges and members who have, or are able to acquire, the necessary skills and experience to meet identified business needs of the tribunal.
95.Paragraph 13 obliges the Senior President to publish his policy on assignments of tribunal judges and members to chambers. This is intended to ensure openness and transparency of the system of assignment. The policy must ensure that appropriate use is made of the knowledge and experience of the judges and other members of the new tribunals. The policy must also ensure that a chamber which involves the application of the law of Scotland or Northern Ireland has enough members with knowledge and experience of those jurisdictions.
96.To ensure appropriate executive accountability to Parliament for the process of assigning members, and to take into account any resource implications, the concurrence of the Lord Chancellor will be required before the policy can be adopted.
97.Paragraph 14 provides for the allocation of members to hear individual cases. This is a judicial leadership function and therefore a matter for the Senior President. However, this is subject to the panel composition requirements set by the Lord Chancellor in an order under paragraph 15.
98.Paragraph 15 requires the Lord Chancellor to set requirements, on a jurisdiction by jurisdiction basis, for the number of judges and other members to decide particular appeals. This order is made by the Lord Chancellor to enable him to take account of resource implications, and to provide parliamentary scrutiny.
99.Section 8 enables the Senior President to delegate any of his functions to any judge or member of the First-tier or Upper Tribunal or any member of staff, with the exception of his function under section 7(9) of allocating tribunal functions between the chambers of the First-tier and Upper Tribunals by order made with the concurrence of the Lord Chancellor.
100.Sections 9 and 10 provide powers for the First-tier and Upper Tribunals to review their own decisions without the need for a full onward appeal and, where the tribunal concludes that an error was made, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made, because, for instance, it is important to have an authoritative ruling.
101.Under section 9, the First-tier Tribunal may review a decision made within the tribunal, either of its own initiative or on application by any party who has a right of appeal in respect of the decision. The tribunal has the power to correct accidental errors in the decision or in a record of the decision, amend the reasons given for the decision or set aside the decision. If a decision of the First-tier Tribunal is set aside by the First-tier Tribunal, it must either re-decide the matter concerned, or refer the matter to the Upper Tribunal. If the latter option is taken, the Upper Tribunal will then be responsible for re-deciding the matter.
102.No decision of the First-tier Tribunal may be reviewed more than once, and a decision of the tribunal not to review a decision is not reviewable or appealable. Further challenge of a decision beyond the single review may only be made by appeal on a point of law.
103.Section 10 provides corresponding review powers for the Upper Tribunal - the only difference being that if the decision is set aside by the Upper Tribunal, it must then re-decide the matter concerned (subsection (5)).
104.Sections 9(3) and 10(3) enable these wide review powers to be limited by making them subject to Tribunal Procedure Rules. They allow Rules to:
exclude from review decisions of a description specified in the rules, whether by the tribunal of its own initiative, or on application by the parties;
for decisions of a description specified in the rules, only allow review by the tribunal of its own initiative;
specify in the rules the grounds on which an application for review may be brought and the grounds on which the tribunal can review of its own initiative. These could be the same or different grounds (e.g. there may be no specified grounds for the tribunal to review of its own initiative, but specified grounds upon which a party could make an application).
105.In summary, an exclusion or ground specified in the Rules may apply only to applications from parties or also to the tribunal acting of its own initiative (e.g. rules may state that parties in social security cases are excluded from applying for review but the tribunal may review of its own initiative in such cases).
106.A party to a case generally has a right of appeal on a point of law from the First-tier Tribunal to the Upper Tribunal. The right of appeal is subject to permission being given, following application by the party, by either the First-tier Tribunal or the Upper Tribunal. But there is no right of appeal against a decision which is “excluded”. Excluded decisions are listed in subsection (5). The Lord Chancellor has a limited power to add to the list by order under subsection (5)(f).
107.The basic pattern of appeal rights will for the most part remain as they are now when jurisdictions transfer to the new tribunal. Where there is currently a right of appeal, it will also exist after transfer. Where decisions currently carry no appeal rights, the transfer of the jurisdiction to the First-tier Tribunal will give rise to new onward-appeal rights unless an order excluding such rights is made under section 11(5)(f) in reliance on section 11(6)(b).
108.In some jurisdictions it is not possible to appeal from the decision of a tribunal, even on a point of law. Equally, in some jurisdictions, tribunals hear appeals on a range of grounds which are not restricted to a point of law. Where there are currently no appeal rights in transferring jurisdictions the continuation of that exclusion will fall to be reviewed in deciding whether to exercise the power under section 11(5)(f) and (6)(b).
109.Subsection (6) limits the Lord Chancellor’s power to add to the list of excluded decisions. As a result, the power can be used for two purposes only. The first purpose is the preservation of existing appeal rights where those rights are, or include, something other than a right to appeal on a point of law. The second purpose is the preservation, in cases where there is currently no appeal right, of the existing position.
110.Subsection (8) empowers the Lord Chancellor to specify who may or may not be treated as being a party to a case for the purposes of making an appeal from the First-tier Tribunal to the Upper Tribunal. In some cases it will be appropriate for a person who was neither the person making the original appeal to the First-tier Tribunal, nor the respondent to the original appeal, to make an onward appeal to the Upper Tribunal. At present, for instance, some rights of appeal under social security legislation to the Social Security and Child Support Commissioners are not limited to the claimant and the Secretary of State, but may include trades unions and claimants' spouses.
111.Existing provisions in respect of who may be a party to a case for the purposes of making an appeal from the First-tier to the Upper Tribunal are expected to be preserved at the point of transfer. The power under subsection (8) may also be used in the future as new appeal rights are introduced.
112.This power is subject to affirmative resolution procedure (see section 49).
113.Section 12 provides for the Upper Tribunal’s powers when it determines that an error has been made on a point of law by the First-tier Tribunal. The Upper Tribunal may set aside the decision of the First-tier Tribunal; if it does it must either remit the case back to the First-tier Tribunal with directions for its reconsideration, or make the decision which it considers should have been made. If it takes the latter option it can make findings of fact. If the Upper Tribunal sends the case back to the First-tier Tribunal it may direct that a different panel reconsiders the case. The Upper Tribunal may also give procedural directions in relation to the case. If the Upper Tribunal decides that the error of law does not invalidate the decision of the First-tier Tribunal it can let that decision stand.
114.Section 13 provides the basis on which appeals can be made to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland. Appeals may be made on any point of law with permission either from the Upper Tribunal or the relevant appellate court (see subsection (11)). Certain decisions are excluded and the Lord Chancellor can under subsection (8)(f) add to the list, but subject to the same constraints as in section 11.
115.Those constraints are set out in subsection (9). As a result, the power to add to the list of excluded decisions can be used for two purposes only. The first purpose is the preservation of existing appeal rights where those rights are, or include, something other than a right of appeal on a point of law. The second purpose is the preservation, in cases where there is currently no appeal right, of the existing position.
116.Under subsection (6) the Lord Chancellor may by order restrict appeals to the Court of Appeal to cases where the court or the Upper Tribunal considers that the proposed appeal would raise some important point of principle or practice or that there is some other compelling reason for the appeal to be heard. The intention is to restrict second appeals on the same point unless there is wider public interest, i.e. where a prospective appellant has had their case considered by both the First-tier Tribunal and the Upper Tribunal. The criteria set out in this subsection are the same as the criteria applied by the Court of Appeal in considering second appeals from the High Court or county court (see the Access to Justice Act 1999, section 55(1)).
117.The exercise of the power under the subsection is subject to the affirmative resolution procedure (see section 49). Subsection (6) does not apply to appeals to the Court of Session.
118.Subsections (11) to (13) require the Upper Tribunal to specify the relevant appellate court (see subsection (11)). This provision is intended to deal with situations where it is not obvious which is the appropriate appellate court, e.g. where an appellant has moved from Scotland to England or vice versa, or in order that linked cases can be dealt with in the same court.
119.Subsection (14) empowers the Lord Chancellor to specify who may or may not be treated as being a party to a case for the purposes of making an appeal from the First-tier Tribunal to the Upper Tribunal (see the note above on section 11(8)).
120.Subsection (15) enables rules of court to specify the time within which an application for permission (or leave) may be made for a proposed appeal from the Upper Tribunal to the relevant appeal court. Any such rules for England and Wales will be made by the Civil Procedure Rules Committee.
121.Where the appellate court determines that the Upper Tribunal has made an error of law, it has power to set aside the decision and either send the case back to the Upper Tribunal to be redecided (or, where the decision of the Upper Tribunal was on an appeal or reference from another tribunal or some other person, to that other tribunal or person, with direction for its reconsideration), or to make the decision which it considers the Upper Tribunal (or the other tribunal or person) should have made. Under subsection (3), the appellate court may direct that the persons chosen to reconsider the case are not those who made the decision which gave rise to the appeal. It may also give procedural directions in connection with the reconsideration of the case.
Tribunals, Courts and Enforcement Act 2007