Nature of a referral
Types of referral
5.1A referral
1Referral and reference are interchangeable. Both are found in legislation. Here the former is used. Confusingly, UTR r1(3) defines ‘reference’ as including an appeal in a financial services case. is a means by which a case is brought before a tribunal. As a form of initiating proceedings, they are not unique to tribunals.
2For example: National Health Service Reform and Health Care Professionals Act 2002 s29(4), although s 29(8) then refers to the proceedings as an appeal. This provision was discussed in Council for the Regulation of Health Care Professionals v General Medical Council and Saluja [2007] 1 WLR 3094.5.2There are various types of referral. They may broadly be divided into three categories: those that initiate proceedings; those that enforce proceedings in another tribunal; and those that are purely a formal step in proceedings.
Referrals that initiate proceedings
5.3These referrals may be made in exercise of a power or a duty. They may be made by another tribunal, by a decision-maker or someone closely connected with the decision-maker, by a public body, or by an official.
5.4In one type, a person or body that has jurisdiction to decide a case alternatively has power to pass it higher up the hierarchy of decision-making. The transfer of the case from one level of decision-making to the other is the referral. It is a permissible abdication of the responsibility for making a decision. The referral may be made by a decision-maker to a tribunal. For example: the Secretary of State may refer an application for a child support variation to the First-tier Tribunal.
3Child Support Act 1991 s28D(1)(b). The referral may also be made by one tribunal to another. For example: following a review, the First-tier tribunal may refer a matter to the Upper Tribunal.
4TCEA s9(5)(b). The procedure before the Upper Tribunal is governed by Lands Rules r45 and UTR r26A. Previously a medical appeal tribunal had power to refer a question of law to a Commissioner under the Social Security Act 1975 s112(4). This referral does not require the permission of the Upper Tribunal or the consent of any Chamber President.
5.5In a second type, an issue may arise that is outside the jurisdiction of the person or body before whom it arises and has to be transferred to a decision-maker who has jurisdiction. That may be a tribunal. This differs from the first type in that the referral here is in exercise of a duty, not a power, as the person or body has no jurisdiction to decide the issue. There is no abdication of the responsibility for making a decision. For example: the Secretary of State must refer to the Upper Tribunal the issue whether a claimant may be relieved from forfeiture of the benefit of another’s national insurance contributions as a result of having caused the death of that person.
5UTR r26 under the Forfeiture Act 1982 s4. Also: if a decision-maker objects to the appeal being treated as made in time, it must be referred to the First-tier Tribunal under rule 23(7) of the SEC Rules.
5.6In a third type, the decision-maker, or someone closely connected with the decision-maker, may refer a decision that has been made to a tribunal for reconsideration. Like the first type but unlike the second, the referral here is in exercise of a power, not a duty. And like the second type but unlike the first, there is no abdication of the responsibility of making a decision; it has already been made. For example: under previous legislation an assessment of disablement for benefit purposes could be referred to a medical appeal tribunal for reconsideration.
6Under the Social Security Administration Act 1992 s46(3), now repealed. The referral was by an adjudication officer, although the decision referred was not made by an adjudication officer.5.7In a fourth type, a public body or official is given the power to refer a question to a tribunal for consideration. For example: the Attorney-General may refer a question to the Upper Tribunal or First-tier Tribunal.
7Charities Act 1993 Sch 1D para 2, inserted by the Charities Act 2006 Sch 4.5.8In a fifth type, a public body or official is under a duty to refer a question to a tribunal for consideration. For example: the case of a recalled mental patient must be referred to the First-tier Tribunal.
8Mental Health Act 1983 ss66(4) and 75(1)(a). This procedure complies with the European Convention on Human Rights and Fundamental Freedoms: R (Rayner) v Secretary of State for Justice [2009] 1 WLR 310. For other referrals under the 1983 Act, see ss67, 68 and 71.Transfer of cases
5.9Tribunals have the case management power to transfer cases to another court or tribunal under UTR r5(3)(k) and its equivalents.
9GRC Rules r5(3)(k); HESC Rules r5(3)(k); IAC Rules r4(2)(k); Lands Rules r55(3)(k); PC Rules r6(3)(n); SEC Rules r5(3)(k); Tax Rules r5(3)(k); WPAFC Rules r5(3)(k). In addition, the First-tier Tribunal has some specific powers of transfer. Under Tax Rules, a complex case can be transferred to the Upper Tribunal (r28). And under WPAFC Rules, a case can be transferred to Scotland or Northern Ireland if the appellant was resident outside the United Kingdom when the appeal was lodged and there is a good reason for the transfer, such as a closer connection with one of those jurisdictions (r19). This power is necessary because the Pensions Appeal Tribunals for Scotland and Northern Ireland retain their separate existence.
5.10The procedure before the Upper Tribunal on a transfer is governed by Lands Rules r45 and UTR r26A.
5.11Although transfers and referrals are treated differently under the rules of procedure, they are, in substance, equivalent.
Referrals for enforcement by another tribunal
5.12Paragraph 10(3) of Schedule 5 TCEA provides an enabling power for the First-tier Tribunal to refer to the Upper Tribunal a failure to comply with a direction on the attendance and examination of witnesses or the production and inspection of documents. Rule 7(3) of the HESC Rules is illustrative of the provision made under that authority:
10See also: GRC Rules r7(3); IAC Rules r6(3); PC Rules r8(5); SEC Rules r7(3); Tax Rules r7(3); WPAFC Rules r7(3).(3)The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal –
(a)to attend at any place for the purpose of giving evidence;
(b)otherwise to make themselves available to give evidence;
(c)to swear an oath in connection with the giving of evidence;
(d)to give evidence as a witness;
(e)to produce a document; or
(f)to facilitate the inspection of a document or any other thing (including any premises).
5.13On a referral, the Upper Tribunal is able to exercise its enforcement powers under TCEA s25, which are the same as those of the High Court.
Referrals that are a formal step in proceedings
5.14This is not a separate way of beginning proceedings, but merely an administrative stage in making an appeal. An appeal may be lodged with one body that has to refer it to a tribunal for decision. For example: an appeal against a certificate of recoverable benefit must be referred to the First-tier Tribunal.
11Social Security (Recovery of Benefits) Act 1997 s12(1).5.15If the body fails to refer the case to the tribunal, it may nonetheless have jurisdiction. In R(H) 1/07, the Commissioner was concerned with an appeal in a housing benefit case. Under the legislation, it was lodged with the local authority which had to refer it to the tribunal. The local authority had failed to refer the case. The Commissioner held that the tribunal had jurisdiction despite the local authority’s failure to take this administrative step.
5.16If the tribunal does not have jurisdiction without a referral, the remedy for failure to refer is judicial review. A practical alternative is to alert the tribunal, which may be able to ensure that the referral is made.
Obligation to provide a referral system
5.17There is, generally, no obligation to provide for a system for referral. Exceptionally, there may be. In
R (H) v Secretary of State for Health, the Court of Appeal
12[2005] 1 WLR 1209. decided that if a claimant lacked the mental capacity to take his case to a tribunal on appeal, it might be necessary for the State to provide for a form of referral to ensure access to an independent tribunal. However, on appeal the House of Lords
13[2006] 1 AC 441. decided that this was not necessary under the Mental Health Act 1983.