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4.—(1) Staff appointed under section 40(1) of the 2007 Act (tribunal staff and services) may, with the approval of the Senior President of Tribunals, carry out functions of a judicial nature permitted or required to be done by the Tribunal.
(2) The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.
(3) Within 14 days after the date on which the Tribunal sends notice of a decision made by a member of staff under paragraph (1) to a party, that party may apply in writing to the Tribunal for that decision to be considered afresh by a judge.
5.—(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.
(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—
(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit(14);
(b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;
(c) permit or require a party to amend a document;
(d) permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party;
(e) deal with an issue in the proceedings as a preliminary issue;
(f) hold a hearing to consider any matter, including a case management issue;
(g) decide the form of any hearing;
(h) adjourn or postpone a hearing;
(i) require a party to produce a bundle for a hearing;
(j) stay proceedings;
(k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—
(i) because of a change of circumstances since the proceedings were started, the Tribunal no longer has jurisdiction in relation to the proceedings; or
(ii) the Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case; or
(l) suspend the effect of its own decision pending the determination by the Tribunal or the Upper Tribunal of an application for permission to appeal against, and any appeal or review of, that decision.
6.—(1) The Tribunal may give a direction on the application of one or more of the parties or on its own initiative.
(2) An application for a direction may be made—
(a) by sending or delivering a written application to the Tribunal; or
(b) orally during the course of a hearing.
(3) An application for a direction must include the reason for making that application.
(4) Unless the Tribunal considers that there is good reason not to do so, the Tribunal must send written notice of any direction to every party and to any other person affected by the direction.
(5) If a party, or any other person given notice of the direction under paragraph (4), wishes to challenge a direction which the Tribunal has given, they may do so by applying for another direction which amends, suspends or sets aside the first direction.
7.—(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.
(2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Tribunal may take such action as it considers just, which may include—
(a) waiving the requirement;
(b) requiring the failure to be remedied;
(c) exercising its power under rule 8 (striking out a party’s case);
(d) exercising its power under paragraph (3); or
(e) except in mental health cases, restricting a party’s participation in the proceedings.
(3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—
(a) to attend at any place for the purpose of giving evidence;
(b) otherwise to make themselves available to give evidence;
(c) to swear an oath in connection with the giving of evidence;
(d) to give evidence as a witness;
(e) to produce a document; or
(f) to facilitate the inspection of a document or any other thing (including any premises).
8.—(1) With the exception of paragraph (3), this rule does not apply to mental health cases.
(2) The proceedings, or the appropriate part of them, will automatically be struck out if the applicant has failed to comply with a direction that stated that failure by the applicant to comply with the direction would lead to the striking out of the proceedings or that part of them.
(3) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—
(a) does not have jurisdiction in relation to the proceedings or that part of them; and
(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.
(4) The Tribunal may strike out the whole or a part of the proceedings if—
(a) the applicant has failed to comply with a direction which stated that failure by the applicant to comply with the direction could lead to the striking out of the proceedings or part of them;
(b) the applicant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or
(c) the Tribunal considers there is no reasonable prospect of the applicant’s case, or part of it, succeeding.
(5) The Tribunal may not strike out the whole or a part of the proceedings under paragraph (3) or (4)(b) or (c) without first giving the applicant an opportunity to make representations in relation to the proposed striking out.
(6) If the proceedings, or part of them, have been struck out under paragraph (2) or (4)(a), the applicant may apply for the proceedings, or part of them, to be reinstated.
(7) An application under paragraph (6) must be made in writing and received by the Tribunal within 28 days after the date on which the Tribunal sent notification of the striking out to that party.
(8) This rule applies to a respondent as it applies to an applicant except that—
(a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings; and
(b) a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.
(9) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent.
9.—(1) The Tribunal may give a direction substituting a party if—
(a) the wrong person has been named as a party; or
(b) the substitution has become necessary because of a change in circumstances since the start of proceedings.
(2) The Tribunal may give a direction adding a person to the proceedings as a respondent.
(3) If the Tribunal gives a direction under paragraph (1) or (2) it may give such consequential directions as it considers appropriate.
10.—(1) Subject to paragraph (2), the Tribunal may make an order in respect of costs only—
(a) under section 29(4) of the 2007 Act (wasted costs); or
(b) if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.
(2) The Tribunal may not make an order under paragraph (1)(b) in mental health cases.
(3) The Tribunal may make an order in respect of costs on an application or on its own initiative.
(4) A person making an application for an order under this rule must—
(a) send or deliver a written application to the Tribunal and to the person against whom it is proposed that the order be made; and
(b) send or deliver a schedule of the costs claimed with the application.
(5) An application for an order under paragraph (1) may be made at any time during the proceedings but may not be made later than 14 days after the date on which the Tribunal sends the decision notice recording the decision which finally disposes of all issues in the proceedings.
(6) The Tribunal may not make an order under paragraph (1) against a person (the “paying person”) without first—
(a) giving that person an opportunity to make representations; and
(b) if the paying person is an individual, considering that person’s financial means.
(7) The amount of costs to be paid under an order under paragraph (1) may be ascertained by—
(a) summary assessment by the Tribunal;
(b) agreement of a specified sum by the paying person and the person entitled to receive the costs (“the receiving person”); or
(c) assessment of the whole or a specified part of the costs incurred by the receiving person, if not agreed.
(8) Following an order for assessment under paragraph (7)(c), the paying person or the receiving person may apply to a county court for a detailed assessment of costs in accordance with the Civil Procedure Rules 1998(15) on the standard basis or, if specified in the order, on the indemnity basis.
11.—(1) A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.
(2) If a party appoints a representative, that party (or the representative if the representative is a legal representative) must send or deliver to the Tribunal and to each other party written notice of the representative’s name and address.
(3) Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except—
(a) signing a witness statement; or
(b) signing an application notice under rule 20 (the application notice) if the representative is not a legal representative.
(4) A person who receives due notice of the appointment of a representative—
(a) must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and
(b) may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.
(5) At a hearing a party may be accompanied by another person whose name and address has not been notified under paragraph (2) but who, subject to paragraph (8) and with the permission of the Tribunal, may act as a representative or otherwise assist in presenting the party’s case at the hearing.
(6) Paragraphs (2) to (4) do not apply to a person who accompanies a party under paragraph (5).
(7) In a mental health case, if the patient has not appointed a representative, the Tribunal may appoint a legal representative for the patient where—
(a) the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or
(b) the patient lacks the capacity to appoint a representative but the Tribunal believes that it is in the patient’s best interests for the patient to be represented.
(8) In a mental health case a party may not appoint as a representative, or be represented or assisted at a hearing by—
(a) a person liable to be detained or subject to guardianship or after-care under supervision, or who is a community patient, under the Mental Health Act 1983; or
(b) a person receiving treatment for mental disorder at the same hospital as the patient.
12.—(1) An act required by these Rules, a practice direction or a direction to be done on or by a particular day must be done by 5pm on that day.
(2) If the time specified by these Rules, a practice direction or a direction for doing any act ends on a day other than a working day, the act is done in time if it is done on the next working day.
(3) In a special educational needs case or a disability discrimination in schools case—
(a) if the time for starting proceedings by providing the application notice to the Tribunal under rule 20 (the application notice) ends on a day from 25th December to 1st January inclusive, or on any day in August, the application notice is provided in time if it is provided to the Tribunal on the first working day after 1st January or 31st August, as appropriate; and
(b) the days from 25th December to 1st January inclusive and any day in August must not be counted when calculating the time by which any other act must be done.
(4) Paragraph (3)(b) does not apply where the Tribunal directs that an act must be done by or on a specified date.
13.—(1) Any document to be provided to the Tribunal under these Rules, a practice direction or a direction must be—
(a) sent by pre-paid post or delivered by hand to the address specified for the proceedings;
(b) sent by fax to the number specified for the proceedings; or
(c) sent or delivered by such other method as the Tribunal may permit or direct.
(2) Subject to paragraph (3), if a party provides a fax number, email address or other details for the electronic transmission of documents to them, that party must accept delivery of documents by that method.
(3) If a party informs the Tribunal and all other parties that a particular form of communication, other than pre-paid post or delivery by hand, should not be used to provide documents to that party, that form of communication must not be so used.
(4) If the Tribunal or a party sends a document to a party or the Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.
(5) The Tribunal and each party may assume that the address provided by a party or its representative is and remains the address to which documents should be sent or delivered until receiving written notification to the contrary.
14.—(1) The Tribunal may make an order prohibiting the disclosure or publication of—
(a) specified documents or information relating to the proceedings; or
(b) any matter likely to lead members of the public to identify any person whom the Tribunal considers should not be identified.
(2) The Tribunal may give a direction prohibiting the disclosure of a document or information to a person if—
(a) the Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and
(b) the Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.
(3) If a party (“the first party”) considers that the Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (“the second party”), the first party must—
(a) exclude the relevant document or information from any documents that will be provided to the second party; and
(b) provide to the Tribunal the excluded document or information, and the reason for its exclusion, so that the Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).
(4) The Tribunal must conduct proceedings as appropriate in order to give effect to a direction given under paragraph (2).
(5) If the Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Tribunal may give a direction that the documents or information be disclosed to that representative if the Tribunal is satisfied that—
(a) disclosure to the representative would be in the interests of the party; and
(b) the representative will act in accordance with paragraph (6).
(6) Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Tribunal’s consent.
(7) Unless the Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.
15.—(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Tribunal may give directions as to—
(a) issues on which it requires evidence or submissions;
(b) the nature of the evidence or submissions it requires;
(c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;
(d) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;
(e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—
(i) orally at a hearing; or
(ii) by written submissions or witness statement; and
(f) the time at which any evidence or submissions are to be provided.
(2) The Tribunal may—
(a) admit evidence whether or not—
(i) the evidence would be admissible in a civil trial in England and Wales; or
(ii) the evidence was available to a previous decision maker; or
(b) exclude evidence that would otherwise be admissible where—
(i) the evidence was not provided within the time allowed by a direction or a practice direction;
(ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or
(iii) it would otherwise be unfair to admit the evidence.
(3) The Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.
(4) In a special educational needs case the Tribunal may require—
(a) the parents of the child, or any other person with care of the child or parental responsibility for the child (as defined in section 3 of the Children Act 1989), to make the child available for examination or assessment by a suitably qualified professional person; or
(b) the person responsible for a school or educational setting to allow a suitably qualified professional person to have access to the school or educational setting for the purpose of assessing the child or the provision made, or to be made, for the child.
(5) The Tribunal may consider a failure by a party to comply with a requirement made under paragraph (4), in the absence of any good reason for such failure, as a failure to co-operate with the Tribunal, which could lead to a result which is adverse to that party’s case.
16.—(1) On the application of a party or on its own initiative, the Tribunal may—
(a) by summons require any person to attend as a witness at a hearing at the time and place specified in the summons; or
(b) order any person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.
(2) A summons under paragraph (1)(a) must—
(a) give the person required to attend 14 days’ notice of the hearing, or such shorter period as the Tribunal may direct; and
(b) where the person is not a party, make provision for the person’s necessary expenses of attendance to be paid, and state who is to pay them.
(3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law.
(4) A summons or order under this rule must—
(a) state that the person on whom the requirement is imposed may apply to the Tribunal to vary or set aside the summons or order, if they have not had an opportunity to object to it; and
(b) state the consequences of failure to comply with the summons or order.
17.—(1) Subject to paragraphs (2) and (3), a party may give notice of the withdrawal of its case, or any part of it—
(a) at any time before a hearing to consider the disposal of the proceedings (or, if the Tribunal disposes of the proceedings without a hearing, before that disposal), by sending or delivering to the Tribunal a written notice of withdrawal; or
(b) orally at a hearing.
(2) Notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal except—
(a) in proceedings concerning the suitability of a person to work with children or vulnerable adults; or
(b) in proceedings started by a reference under section 67 or 71(1) of the Mental Health Act 1983.
(3) A party which started a mental health case by making a reference to the Tribunal under section 68, 71(2) or 75(1) of the Mental Health Act 1983 may not withdraw its case.
(4) A party which has withdrawn its case may apply to the Tribunal for the case to be reinstated.
(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 28 days after—
(a) the date on which the Tribunal received the notice under paragraph (1)(a); or
(b) the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).
(6) The Tribunal must notify each party in writing of a withdrawal under this rule.
Provisions in primary legislation which contain time limits include: sections 66(1) and (2), 68(2) (subject to any order made under section 68A), 69(1), (2) and (4), 70, 71(2) (subject to any order made under section 71(3)) and 75(1) and (2) of the Mental Health Act 1983; sections 21(2) and 86(5) of the Care Standards Act 2000; section 166(2) of the Education Act 2002 (c.32); and section 32(2) of the Health and Social Care Act 2008 (c.14). Back [14]
S.I. 1998/3132. Back [15]
The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008