Lapse
12.7Proceedings lapse when their subject matter ceases to exist. The only decision that the tribunal can give is that it no longer has jurisdiction.
1In Dorset Healthcare NHS Trust v MH [2009] UKUT 4 (AAC), the Upper Tribunal gave as its decision: ‘There be no decision on the appeal’.12.8So, for example:
•an appeal may lapse if the decision against which the appeal is brought is changed;
•an application may lapse if it is brought to challenge a patient’s detention in a mental hospital and the patient is discharged or made the subject of a community treatment order.
2As in Dorset Healthcare NHS Trust v MH [2009] UKUT 4 (AAC). 12.9This is subject to provision to the contrary. Legislation may provide that the proceedings survive. For example: regulation 30 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 provides that an appeal against specified decisions shall not lapse if they are replaced or revised in a way that is not advantageous to the appellant. The appeal continues against the decision as replaced or revised. WPAFC Rules r22 makes equivalent provision for the war pension and armed forces compensation schemes.
12.10Death will not necessarily cause the proceedings to lapse.
3They may merely abate: see chapter 7. However, it will be necessary for someone with authority to represent the party in order for the proceedings to continue. This may be a personal representative or someone appointed under specific legislation, such as regulation 34 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999.
12.11However, proceedings may lapse on death if they are entirely personal to the person who has died.
12.12Lapsing only occurs if the subject matter of the proceedings ceases to exist. This must be distinguished from other processes. So, for example:
•proceedings do not lapse just because the issue has become of abstract interest to the parties;
•nor do they lapse just because the other party concedes an issue or even the whole case.
In those examples, the tribunal retains jurisdiction to decide the issue.
12.13In principle, the referral of an application could lapse if the application is withdrawn. However, there is authority that it survives until the referral is withdrawn. This was the view of the Court of Appeal in
Milton v Secretary of State for Work and Pensions.
4R(CS) 1/07. The Court refused permission to appeal against the decision of a Commissioner on this ground.