The Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009
A draft of this Order was laid before Parliament and approved by a resolution of each House of Parliament in accordance with section 49(5) of that Act.
Citation and commencement1.
(1)
This Order may be cited as the Transfer of Functions (Estate Agents Appeals and Additional Scheduled Tribunal) Order 2009 and, subject to paragraph (2), comes into force on 1st September 2009.
(2)
Article 4 comes into force on the day after the day on which this instrument is made.
Transfer of function2.
Transfer of persons into the First-tier Tribunal and the Upper Tribunal3.
A person who, immediately before this Order comes into force, holds an office listed in column (1) of the following table is to hold the office or offices listed in the corresponding entry in column (2) of the table.
(1) Office held | (2) Office to be held |
|---|---|
Person appointed to hear an appeal on behalf of the Secretary of State under regulation 19(1) of Estate Agents (Appeals) Regulations 19813 at any time after 2005, and who is on the panel of presiding members | Transferred-in judge of the First-tier Tribunal |
Person appointed to hear an appeal on behalf of the Secretary of State under regulation 19(1) of Estate Agents (Appeals) Regulations 1981 at any time after 2005, and who is on the panel of legal members | Transferred-in judge of the First-tier Tribunal |
Person appointed to hear an appeal on behalf of the Secretary of State under regulation 19(1) of Estate Agents (Appeals) Regulations 1981 at any time after 2005, and who is on the panel of other members | Transferred-in other member of the First-tier Tribunal |
Addition to the list of tribunals in Schedule 64.
“Panel
Consequential and transitional provisions5.
(1)
Schedule 1 contains amendments to primary legislation as a consequence of the transfer effected by this Order.
(2)
Schedule 2 contains repeals and revocations as a consequence of the amendments in Schedule 1.
(3)
Schedule 3 contains transitional and saving provisions.
By authority of the Lord Chancellor
SCHEDULE 1Consequential amendments to primary legislation
Parliamentary Commissioner Act 1967
1.
Estate Agents Act 1979
2.
3.
In section 7 (appeals)—
(a)
in subsection (1) for “Secretary of State” substitute “First-tier Tribunal”;
(b)
in subsection (2)—
(i)
for “Secretary of State” substitute “First-tier Tribunal”;
(ii)
for “he” substitute “it”; and
(iii)
omit the words from “, including” to the end; and
(c)
omit subsections (3) to (6).
SCHEDULE 2Repeals and revocations
Act or instrument repealed or revoked | Reference | Extent of repeal or revocation |
|---|---|---|
Constitutional Reform Act 2005 | Paragraph 31 of Schedule 9 | |
Estate Agents (Appeals) Regulations 1981 | The whole of the Regulations |
SCHEDULE 3Transitional and saving provisions
Transitional and saving provisions
4.
Any proceedings before the Secretary of State to decide an appeal under section 7(1) of the Estate Agents Act 1979 which are pending immediately before 1st September 2009 shall continue on and after 1st September 2009 as proceedings before the First-tier Tribunal.
5.
(1)
The following sub-paragraphs apply where proceedings are continued in the First-tier Tribunal by virtue of paragraph 1.
(2)
Where a hearing began before 1st September 2009 but was not completed by that date, the First-tier Tribunal must be comprised for the continuation of that hearing of the person or persons appointed by the Secretary of State to hear the appeal on his behalf.
(3)
The First-tier Tribunal may give any direction to ensure that proceedings are dealt with fairly and, in particular, may—
(a)
apply any provision regulating practice or procedure which applied to the proceedings before 1st September 2009; or
(b)
disapply provisions of Tribunal Procedure Rules.
(4)
Any direction or order given or made in proceedings which is in force immediately before 1st September 2009 remains in force on and after that date as if it were a direction or order of the First-tier Tribunal.
(5)
A time period which has started to run before 1st September 2009 and which has not expired shall continue to apply.
(6)
An order for costs may only be made if, and to the extent that, an order could have been made before 1st September 2009.
6.
7.
Any case to be remitted by a court on or after 1st September 2009 and which, if it had been remitted before 1st September 2009, would have been remitted to the Secretary of State shall be remitted to the First-tier Tribunal.
8.
Staff appointed in relation to the administration of appeals under section 7(1) of the Estate Agents Act 1979 before 1st September 2009 are to be treated on and after that date, for the purpose of any enactment, as if they had been appointed by the Lord Chancellor under section 40(1) of the Tribunals, Courts and Enforcement Act 2007 (tribunal staff and services).
9.
This Order is made under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Part 1 of the 2007 Act creates a new two tier tribunal structure; the First-tier Tribunal and the Upper Tribunal are established under section 3 of the 2007 Act. Order making powers are provided under Part 1 of the 2007 Act to enable the functions of existing tribunals to be transferred into the new structure. This Order transfers the function of the Secretary of State to decide appeals under section 7(1) of the Estate Agents Act 1979 (“Estate Agents Appeals”) to the First-tier Tribunal.
Article 2 transfers the function of the Secretary of State to decide Estate Agents Appeals to the First-tier Tribunal.
This Order adds a panel referred to in section 189(6) of the Greater London Authority Act 1999 to the table in Part 4 of Schedule 6 to the Tribunals, Courts and Enforcement Act 2007, bringing such a panel within the scope of the Lord Chancellor’s power to transfer tribunal functions to the First-tier Tribunal or the Upper Tribunal.
Article 5(1) and (2) brings Schedules 1 and 2 into effect. Schedule 1 contains amendments to primary legislation in consequence of the transfer of the function of the Secretary of State to decide Estate Agents Appeals to the First–tier Tribunal, and Schedule 2 contains repeals and revocations of legislation in consequence of those amendments.
Article 5(3) brings Schedule 3 into effect. Schedule 4 makes transitional and saving provisions for the treatment of Estate Agents Appeals, which would previously have been dealt with by persons appointed by the Secretary of State, following the coming into force of this Order.
The Schedule provides for proceedings which have started at the date of transfer to the First-tier Tribunal; new proceedings will be started in the First-tier Tribunal. In transferred cases the following provisions apply:
a hearing which has already been commenced but not completed will need to be completed in the First-tier Tribunal but comprised of the same persons;
directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the First-tier Tribunal;
the First-tier Tribunal will be able to disapply Tribunal Procedure Rules, or apply provisions of the Estate Agent (Appeals) Regulations 1981, to Estate Agents Appeals as they applied to such appeals prior to transfer, to ensure that proceedings are dealt with fairly;
time limits which begin to run before this Order comes into force continue to apply after the Order comes into force; and
the First-tier Tribunal will only be able to make a costs order if and to the extent that the Secretary of State could have made such an order.
Appeals against the decisions of the Secretary of State on Estate Agents Appeals, if the appeal right has not been exercised before this Order comes into force and the time for doing so has not expired, are to be treated as appeals against the decisions of the First-tier Tribunal.
A Regulatory Impact Assessment was prepared for the Tribunals, Courts and Enforcement Act 2007. This can be found at: