The Transfer of Tribunal Functions Order 2008

EXPLANATORY NOTE

(This note is not part of the Order)

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 (“the new tribunals”) are established under section 3 of the 2007 Act. Order making powers are provided under Part 1 of the 2007 Act to enable existing tribunals to be transferred into the new structure. This Order has various primary functions to effect the transfers, and in addition contains various minor, consequential and transitional provisions, as explained below.

Transfer of functions of tribunals

Article 3 transfers the functions of the tribunals listed in the tables in Schedule 1 to the new tribunals.

Appeals under the Health and Social Care (Community Health and Standards) Act 2003 are made to the appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998 and onward appeals from that tribunal are to the Social Security Commissioners. The functions related to these appeal rights in respect of Scotland are not transferred as part of this Order. Therefore, the appeal tribunal and Social Security Commissioners are retained for the purposes of these appeals. The extent provisions in article 1(5) retain the relevant legislation for the purpose of these appeals.

In the case of Pensions Appeal Tribunals the transfer relates only to tribunals in England and Wales; Pensions Appeal Tribunals in Scotland and Northern Ireland retain their functions. In the case of Mental Health Review Tribunals the transfer relates only to tribunals in England; the Mental Health Review Tribunal for Wales retains its functions. In the special educational needs regime the functions of the Special Educational Needs and Disability Tribunal (which relates only to England) are transferred but the functions of the Special Educational Needs Tribunal for Wales are not.

Abolition of tribunals following transfer of functions

Article 4 abolishes the tribunals from which the functions are transferred under article 3 (with exceptions to provide for tribunals to remain in place to hear the Scottish appeals which are not transferred).

Transfer of members of tribunals

Article 5 provides for members of the tribunals from which the functions are transferred by article 3 to hold the offices of transferred-in judge or transferred-in other member of the First-tier Tribunal, or deputy judge or transferred-in judge of the Upper Tribunal. Those members becoming deputy judges of the Upper Tribunal also become transferred-in judges of the First-tier Tribunal. The tables in Schedule 2 set out which tribunal members hold which offices in the new tribunals.

Additions to Schedule 6 to the 2007 Act

Article 2 adds three tribunals to the table in Part 4 of Schedule 6 to the 2007 Act, bringing them within the scope of the Lord Chancellor’s power to transfer tribunal functions to the First-tier Tribunal or the Upper Tribunal. None of the three tribunals are transferred to the new tribunals in this Order.

Appeals to the Upper Tribunal from tribunals in Wales, Scotland and Northern Ireland

Article 6 provides for an onward appeal right to the Upper Tribunal from decisions of the Mental Health Review Tribunal for Wales and the Special Educational Needs Tribunal for Wales in place of the previous onward appeal right to the High Court.

The transfer of the Pensions Appeal Tribunal for England and Wales to the First-tier Tribunal creates an onward appeal right for decisions under section 5 of the Pensions Appeal Tribunals Act 1943. To ensure parity across the jurisdictions articles 7 and 8 provide for an onward appeal from the Pensions Appeal Tribunals for Scotland and Northern Ireland to the Upper Tribunal for decisions under section 5 of the 1943 Act.

Minor and consequential provisions

Article 9 brings Schedule 3 into effect. Schedule 3 contains minor and consequential amendments.

The amendments in Schedule 3 are amendments to primary legislation resulting from the transfer of tribunal functions and members, abolition of tribunals and new appeal rights provided for in this Order. To a great extent the amendments redirect the existing appeal rights by the replacement of references to the tribunals being abolished with references to the tribunals to which the functions are being transferred. The Order also deletes provisions relating to the abolished tribunals where the effects of those provisions are or will be provided for in the Tribunals, Courts and Enforcement Act 2007 or in Tribunal Procedure Rules made under that Act.

Amendments to the Mental Health Act 1983 ensure that that Act as amended refers to the First-tier Tribunal so far as proceedings relating to England are concerned, but to the Mental Health Review Tribunal for Wales (“MHRTfW”) so far as proceedings relating to Wales are concerned, and retains provisions relating to the constitution and procedure of the MHRTfW. That Act as amended also includes provision for the new appeal right from the MHRTfW to the Upper Tribunal.

Amendments to the Disability Discrimination Act 1995 and the Education Act 1996 ensure that those Acts as amended refer to the First-tier Tribunal so far as proceedings relating to England are concerned, but to the Special Educational Needs Tribunal for Wales (“SENTfW”) so far as proceedings relating to Wales are concerned, and retain provisions relating to the constitution and procedure of the SENTfW. Those Acts as amended also include provision for the new appeal right from the SENTfW to the Upper Tribunal.

Amendments to the War Pensions (Administrative Provisions) Act 1919 and the Pensions Appeal Tribunal Act 1943 ensure that those Acts as amended refer to the First-tier Tribunal so far as proceedings relating to England and Wales are concerned, but to the Pensions Appeal Tribunals so far as proceedings relating to Scotland and Northern Ireland are concerned. Onward appeals from decisions of the Pension Appeals Tribunals for Scotland are to the Upper Tribunal. Onward appeals from decisions of the Pensions Appeal Tribunal for Northern Ireland remain (apart from the new appeal right under section 5 of the 1943 Act) to the Social Security Commissioners for Northern Ireland.

Article 104(5)(d) inserts a minor amendment into paragraph 3 of Part 2 of Schedule 4 to the Social Security Administration Act 1992. This amendment is in consequence of the creation of the Administrative Justice and Tribunals Council and the abolition of the Council on Tribunals under sections 44 and 445 of the 2007 Act.

Transitional and saving provisions

Article 9(2) brings Schedule 4 into effect. Schedule 4 make transitional and saving provisions for the treatment of cases which would previously have been dealt with by the tribunals from which the functions are transferred by article 3, or onward appeals from those tribunals, following the coming into force of this Order.

The Schedule provides for proceedings which have been started in tribunals from which the functions are transferred by article 3 to be transferred to the new tribunals; new proceedings will be started in the new tribunals. In transferred cases the following provisions apply:

• a hearing which has already been commenced but not completed will need to be completed in the new tribunal but comprised of the same members;

• directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the new tribunals;

• Tribunal Procedure Rules made under the Tribunals, Courts and Enforcement Act 2007 will apply to all cases from day one, but the new tribunals will be able to disapply Tribunal Procedure Rules, apply procedural rules which applied to the abolished tribunals or make other directions 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 new tribunals will only be able to make a costs order if and to the extent that the tribunal from which the case was transferred could have made such an order.

Onward appeals against the decisions of tribunals from which the functions are transferred by article 3 are dealt with as follows:

• onward appeals against decisions given before 3rd November 2008 by a Mental Health Review Tribunal, the Special Educational Needs and Disability Tribunal, the Special Educational Needs Tribunal for Wales or the “Care Standards Tribunal” will continue to be made to the High Court, even if the onward appeal proceedings are not commenced until after that date. Onward appeals against decisions given on or after 3rd November 2008 must be made under the new regime;

• onward appeals against decisions given before 3rd November 2008 which would before that date have been heard by a Social Security Commissioner or Child Support Commissioner, but which are made after that date, must be made under the new regime; and

• onward appeals against decisions given by a Social Security Commissioner or Child Support Commissioner before 3rd November 2008, which are made after that date, must be made under the new regime.

A Regulatory Impact Assessment was prepared for the Tribunals, Courts and Enforcement Act 2007. This can be found at:

http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm