Consultation outcome

Possible amendments to the power to set-aside a decision: consultation response

Updated 6 December 2024

Tribunal Procedure Committee reply to consultation responses on possible amendments to the power to set-aside a decision in:

• Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008
• Rule 54 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010
• Rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008
• Rule 35 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008
• Rule 45 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008
• Rule 38 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009
• Rule 41 of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009
• Rule 51 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013
• Rule 32 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

Introduction

1. The Tribunal Procedure Committee (“TPC”) is the body that makes rules to govern practice and procedure in the First-tier Tribunal and in the Upper Tribunal. It is an independent Non-Departmental Public Body, sponsored by the Ministry of Justice. Information on the TPC can be found on GOV.UK.   

2. The TPC is established under section 22 of, and Schedule 5 to, the Tribunals, Courts and Enforcement Act 2007 (“the TCEA”), with the function of making Tribunal Procedure Rules for the First-tier Tribunal (“FtT”) and the Upper Tribunal (“UT”).

3. Under section 22(4) of the TCEA, power to make Tribunal Procedure Rules is to be exercised with a view to securing that:

• (a) in proceedings before the First–tier Tribunal and Upper Tribunal, justice is done
• (b) the Tribunal system is accessible and fair
• (c) proceedings before the First–tier Tribunal or Upper Tribunal are handled quickly and efficiently
• (d) the rules are both simple and simply expressed
• (e) the rules where appropriate confer on members of the First–tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the Tribunal are handled quickly and efficiently

4. In pursuing these aims the TPC seeks, among other things, to:

• (a) make the rules as simple and streamlined as possible
• (b) avoid unnecessarily technical language
• (c) enable Tribunals to continue to operate tried and tested procedures which have been shown to work well
• (d) adopt common rules across Tribunals wherever possible.

5. The TPC also has due regard to the public sector equality duty contained in section 149 of the Equality Act 2010 when making rules.

6. The TPC consulted on whether to amend the rules set out at the start of this reply. The amendment proposed was designed to make sure that each chamber of the FtT and UT, in so far as the procedure rules do not already allow tribunals to set aside decisions of their own initiative, will have that power in the future. That will always on the assumption that it is in the interests of justice that they do so.

7. This consultation ran from 10am on 15 May 2024 to 11:59pm on 7 August 2024 and can be found on GOV.UK.

8. Four responses were received. They were from:

• (a)   The Association of Personal Injury Lawyers (“APIL”)
• (b)  The Child Poverty Action Group (“CPAG”)
• (c)   The Immigration Law Practitioners’ Association (“ILPA”)
• (d)  The Law Society of Scotland

9. APIL, CPAG and ILPA limited their comments to the chambers which covered their respective expertise.^{[footnote 1]} Although the consultation responses were limited in the way set out above, the TPC takes the view that the wording of each rule is so similar that any matters raised by responders could be taken into account by the TPC when considering rules from other chambers. This is not to suggest the responses go wider than they do; however, the TPC takes the view that any potential issues that apply in one chamber, are likely to apply in others as well.

10. The proposal in the consultation was to insert the words “, either on its own initiative or on the application of a party,” in each of the rules at the top of this document so that the relevant paragraph of each rule reads:

(X) The Tribunal may, either on its own initiative or on the application of a party, set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision, or the relevant part of it, if—

(a) the Tribunal considers that it is in the interests of justice to do so; and

(b) one or more of the conditions in paragraph (Y) are satisfied.

11. The consultation questions were:

• Question 1: Do you agree with the proposed changes to clarify that, if and in so far as the rules do not already allow tribunals to set aside decisions of their own initiative, the First-tier Tribunal and Upper Tribunal may exercise a power to set aside a decision on their own initiative in the future? Please give reasons for your answer.

• Question 2: Do you see any difficulties with making the proposed changes for the future and/or any adverse impact on other areas of tribunal practice or procedure?  If so, how do you consider that such difficulties or adverse impact might be mitigated or resolved?  Do you believe that any transitional provisions are required?

• Question 3: Do you believe that where a tribunal exercises the power to set aside of its own initiative, it should be required to give the parties notification of that exercise in writing?

• Question 4: Do you have any other comments?

Question 1

Do you agree with the proposed changes to clarify that, if and in so far as the rules do not already allow tribunals to set aside decisions of their own initiative, the First-tier Tribunal and Upper Tribunal may exercise a power to set aside a decision on their own initiative in the future? Please give reasons for your answer.

12. All the consultees except the Law Society of Scotland answered question 1. They were unanimously in favour of making the amendment proposed in the consultation. In broad terms the consultees who responded agreed that it would be practically useful for tribunals to have the power, and that it was often the tribunals who identified the need for a decision to be set aside.

13. The consultees who answered question 1 also agreed that litigants in person may not appreciate the importance of being invited to make an application where a tribunal itself identifies a ground to set aside a decision. To that extent the consultees agreed on the tribunal having a power to set aside of its own initiative.

14. Some consultees expressed concern in answer to this question about tribunals exercising this power without notifying parties in advance that they proposed to do so. We address those concerns in a separate section below as more than one consultee raised the issue but in answer to separate questions.

15. Having considered the responses received, the TPC plans to proceed to amend the relevant rules in accordance with the proposal.

Question 2

Do you see any difficulties with making the proposed changes for the future and/or any adverse impact on other areas of tribunal practice or procedure?  If so, how do you consider that such difficulties or adverse impact might be mitigated or resolved? Do you believe that any transitional provisions are required?

16. All consultees answered this question; however the Law Society of Scotland answered this question in relation to its concerns about the power to set aside being exercised.

17. None of the consultees suggested that transitional provisions were required for the changes proposed in the consultation. Both CPAG and ILPA doubted that there were any circumstances where, in practice, any amendment to the rules would cause any fresh decisions to be made on old cases.

18. ILPA suggested that the explanatory memorandum could include a statement that the amendments proposed were not intended to introduce a new power that did not exist previously. While that would have the benefit of clarity, the TPC does not believe it can include such a statement in the explanatory memorandum as (1) the TPC does not generally prepare the explanatory memorandum, this is usually done by the Lord Chancellor, (2) it would be for a court or tribunal, not the TPC, to determine whether or not the change in rule created a new power not the TPC and (3) as set out in the original consultation, it is for a court or tribunal to determine the meaning and effect of the new rules in due course.

19. Including a statement of that nature in the explanatory memorandum would, at least in relation to the Social Entitlement Chamber of the FtR, be an implicit comment on the correctness of MA. In any event the TPC does not believe that, in light of the other responses to this question, that there is a significant risk to the administration of justice that needs to be addressed in rules.

20. Some concern was expressed by one consultee about tribunals seeing it as their role, to set aside decisions more actively than before if the amendments were made. The TPC however agrees with the qualification to that concern that it is unlikely to arise in practice. The TPC anticipates that if any significant administrative or judicial difficulty arises, it will come to the TPCs attention.

21. As a result, the TPC does not propose to include any transitional provisions when introducing the amendments.

Question 3

Do you believe that where a tribunal exercises the power to set aside of its own initiative, it should be required to give the parties notification of that exercise in writing?

22. This question was aimed at inviting comments on whether after a decision was made by a Tribunal to set aside a decision, it should be required to give notice of the decision to set aside. Only one consultee addressed the question in that way and was strongly of the view that parties should be given notice of a decision to set aside made by a tribunal of its own initiative. They commented:

We cannot envision any situation where failing to notify the parties that the Tribunal has decided to set aside a decision that impacts their lives would be in the interests of justice.

23. The TPC agrees that it cannot currently envisage any circumstances where it would be in the interests of justice to withhold notification of a decision to set aside. The current rules do envisage such a circumstance, however.

24. In order to ensure that flexibility exists, including for circumstances the TPC and consultees cannot currently foresee, the TPC proposes adding the following paragraph (or one similar to it) to each respective rule.^{[footnote 2]}

(X) If the Tribunal sets aside a decision under this rule, it must, send notice of that decision to set aside in the same way as provided for (and subject to the same exceptions) as in [RULE].

25. As the TPC consulted on the principle of this change, it does not propose to consult on the wording to bring it into effect.

Question 4

Do you have any other comments?

26. The only reply to this question was CPAG stating that its response was limited to the Social Entitlement Chamber of the FtT and the Administrative Appeals Chamber of the UT.

Notifying the parties before exercising the power to set aside of the Tribunal’s own initiative

27. All but one of the responses to the consultation expressed concern that a power to set aside a decision of a tribunal’s own initiative should not be done without giving the parties an opportunity to comment on the proposal first. A number of reasons were given for this including:

• (a) It would be fundamentally unfair to make a decision without giving an opportunity to make representations on it in advance;
• (b) Parties should be able to object to a decision where they dispute that the trigger provision (such as a document not being sent to the Tribunal) exists. Challenging that decision before it is made would be more efficient that requiring a party to do so after the event; and
• (c) The possibility that a decision to set aside an earlier decision would be an “excluded decision” under section 11(5) of the TCEA which would therefore potentially require a complete rehearing to take place before any opportunity to appeal arose on the basis of procedural irregularities.

Representations in advance

28. While the TPC understands the concerns about efficiency and making representations, the TPCs view is that in practice it is likely to cause more delay to include this requirement. There is in any event a discretion open to the various chambers of the FtT and UT to ask for representations in appropriate case. The TPC’s view is that, given the position in relation to excluded decisions below, the usual opportunities for parties to either appeal or apply for a review/set aside provide sufficient procedural safeguards.

Excluded decisions

29. On the final point regarding an excluded decision, the consultee raising this issue also stated that:

[We] have seen at least one case…where the set-aside power has been exercised wrongly, on this initiative of the FTT and without seeking the views of the parties. In that case a partially successful Appellant requested reasons for a decision. The FTT judge responded by setting aside the decision on the basis that a procedural irregularity had occurred in that the record of proceedings had not been kept which meant that writing the reasons was rendered difficult. That case resolved because the FTT accepted it had no jurisdiction to set-aside…But if the proposed rule change is made then this Appellant would have had to have his case reheard when the procedural irregularity which had occurred had not infected the actual decision the FTT had made at all.

30. An “excluded decision” is one made by a tribunal against which there is no right of appeal. The TPC is of the view that the power authorising the stand alone ability to set aside a decision in each of the rules covered by this consultation is found in paragraph 15 of schedule 5 to the TCEA. These are not excluded decisions.

Conclusion

31.The TPC therefore intends to proceed to make the amendments proposed in the original consultation, with the addition of the requirement for notice of a decision as per paragraph 24 above.

Keeping the Rules under review

32. The remit of the TPC is to keep the Rules under review.

33. Please send any suggestions for further amendment to the Rules to:

Email: tpcsecretariat@justice.gov.uk

Post:

Tribunal Procedure Committee
Access to Justice Directorate
Policy, Communications and Analysis Group
Ministry of Justice
Post Point: Area 5.20
102 Petty France
London
SW1H 9AJ

Extra copies of this consultation response document can be obtained using the above contact details or online on GOV.UK.

Annex A: List of Respondents to the Consultation (published on 15 May 2024)

• The Association of Personal Injury Lawyers
• The Child Poverty Action Group
• The Immigration Law Practitioners’ Association
• The Law Society of Scotland

1. The Social Entitlement Chamber (specifically Criminal Injuries Compensation appeals) for APIL, the Social Entitlement Chamber for CPAG and the Immigration Chamber for ILPA. ↩

2. There are in most of the relevant procedure rules circumstances where a decision notice is not to be sent to a party. This draft rule would preserve those exceptions. ↩