3.292Cases come before a tribunal by way of proceedings. Proceeding before a tribunal is a way of determining a legal issue in respect of a person’s rights or duties.

3.294A claim is the appropriate form of proceedings when a decision-maker has not made a decision that can be challenged. For example: an employee may make a claim against an employer for unfair dismissal to an employment tribunal.2Employment Rights Act 1996 s111. There has been a decision in that case, but it was not made by a decision-maker acting in a public law capacity.

3.295An application is the appropriate form of proceedings to ask a tribunal to check on a particular legal status, such as liability to detention on grounds of mental health. A request to a tribunal on a procedural matter is also often called an application.

3.296An appeal is the appropriate form of proceedings to challenge the correctness of a decision that has the force of law. The decision may have been made by a decision-maker or by another tribunal. For example: a person whose protection status has been revoked by the Secretary of State may make an appeal to the First-tier Tribunal against the decision3Nationality, Immigration and Asylum Act 2002 s82. and an employee may make an appeal to the Employment Appeal Tribunal against the decision of an employment tribunal.4Employment Tribunals Act 1996 s21.

3.297Judicial review is the appropriate form of proceedings to challenge the lawfulness of a decision that has the force of law. The decision may have been made by a decision-maker or by another tribunal. Judicial review will usually be available if there is no provision for an appeal. For example: a person from whom a local authority is attempting to recover overpaid benefit may apply for a judicial review of the decision to enforce the liability.

3.298These interchangeable terms are used to describe a variety of ways by which, without a claim, an appeal or a judicial review, an issue may be brought before a tribunal for decision.

3.299Appeal and judicial review are not mutually exclusive. The same decision may be subject to both, but this is exceptional.

3.300Appeals and referrals are not mutually exclusive. The same decision may be subject to both. And, depending on the interpretation of the legislation, a right of appeal may survive a referral.5As in R v Hughes (James) (2009) Times 1 June.

3.301Procedural issues may arise in respect of proceedings on a claim, application, appeal, judicial review or referral. They may relate to aspects of the procedure within those proceedings (when they are often called interlocutory issues) or to the decision given. These may be designated as separate proceedings or part of the original proceedings. It is unlikely that the difference will be of any practical significance.

3.302Tribunals may occasionally operate an alternative form of dispute resolution. They may also refer parties to, and facilitate their use of, alternative dispute resolution that is available elsewhere.

3.203These are not part of the tribunal structure, but may provide an alternative recourse for a party. If an appropriate scheme is available, it should be used before resorting to judicial review.6Humphries v Secretary of State for Work and Pensions [2008] EWHC 1585 (Admin).