CHAPTER 4
chapter 4
Appeals
Statutory • Before a higher authority • Against a decision • Correctness of the decision
4.24When an appeal begins 4.25Classification of appeals 4.32The purposes of an appeal 4.47The decision under appeal 4.54The permissible grounds for appeal 4.64The time for consideration Substantive issues • Decision-making procedures
4.83The evidence that may be considered 4.88Issues raised by the parties 4.91The tribunal’s duty to consider other issues 4.98The tribunal’s power to consider other issues 4.101Issues raised for the first time 4.114Arguments not put to the tribunal below 4.122Appeals involving exercises of judgment 4.129Appeals from another tribunal on issues of fact 4.130Appeals from a decision-maker on issues of fact 4.132Precedent or jurisdictional fact Relevance • Drawing the distinction
4.137Permission to appeal 4.143Admitting an application and extending time 4.150The need for permission to appeal Under TCEA
4.155The function of permission Who may apply?
Definition • Under TCEA • Appeals by a successful party
4.174Against what decisions? Under TCEA – excluded decisions • Under TCEA – decisions
4.187To whom is the application made? Under TCEA
4.192What contribution may a respondent make? 4.194How is the tribunal constituted? 4.195Proportionate use of resources 4.198Initial, first and second appeals 4.200Criteria for granting permission to appeal Limited permission • Conditional permission • On grounds identified by the applicant • On grounds not identified by the applicant • On error of fact
4.225Criteria for granting permission for second appeals Under TCEA • Outside TCEA
4.241Refusing permission to appeal 4.246If the outcome was not affected 4.252Reasons for decision 4.254Directions when permission is given Challenging permission decisions
Appeal • Correction or set aside • Judicial review
4.268Judges who refuse permission 4.269Issues of fact and law 4.269Issues of fact, law and judgment 4.279The disciplined approach to issues of law 4.286A general definition of an issue of law? 4.294Issues of mixed fact and law 4.295Power to hear the case Mistakes in the findings of fact
Findings involving an exercise of judgment • Inferences • Reasonableness • Proportionality • Risk and chance • Foreign law • Findings not involving an exercise of judgment – uncontroverted fact
4.321Legislation and case-law Validity of secondary legislation • Law not drawn to the parties’ attention
How an exercise of judgment may be erroneous in law • Deference for the balancing exercise • Consistency in the balancing exercise • How an error of law may be shown • How an error of law may not be shown
4.357Grounds for judicial review Procedural matters
Breach of rules of procedure • Fairness • Delay • Record of proceedings
Jurisdiction • Implementation • Perversity
4.382Alternative dispute resolution 4.394Discretion and other exercises of judgment The narrow sense of discretion • The wide sense of discretion
4.410Exercising judgment in practice 4.413Deference under the Human Rights Act 1998 4.417The need for reasons 4.421The value of reasons 4.425Representative’s duty 4.426The use of authorities 4.427The standard of reasons 4.436The standard in operation Reasons not rationalisation • Reasons and conclusions • Reasons for reasons • Resources • Length and detail • Interlocutory decisions • The context • Comprehensiveness • Issues and submissions • Self-evident reasons • Competence • Hopeless cases • The addressees • Evidence of fact • Expert evidence of opinion • Issues of judgment • Proportionality • Where no explanation is required • Irrelevant issues • Inconsistent decisions • Procedural discretion • Packages of reasons • Reasons actually given
4.495The flexibility of the standard 4.498The consequence of failing to give adequate reasons 4.505Supplementary reasons Before promulgation • After promulgation • On application for permission to appeal • On appeal or judicial review • Limitations • Procedure • Duty to provide reasons at the time of decision • Cross-examination • Dealing with an omitted issue
4.526Reasons for refusing permission to appeal 4.527Reasons under article 6 4.536Delay in providing reasons 4.537Tribunals and Inquiries Act 1992 s10 4.543Reasons and the tribunal’s record