Forms of decisionTimes 19 Augustsub nom Floe Telecom Ltd v Office of Communications [2009] EWCA Civ 47, (2009) Times 23 February, [2006] 4 All ER 688sub nom Floe Telecom Ltd v Office of Communications [2009] EWCA Civ 47, (2009) Times 23 February, [2006] 4 All ER 688Times 24 JanuaryTimes 25 OctoberTimes 24 JanuaryTimes 3 FebruaryTimes 11 FebruaryTimes 14 December, [2005] Imm AR 84Times 24 JuneTimes 14 December, [2005] Imm AR 84
14.11The TCEA only provides for the forms of decision that may be given on an appeal to the Upper Tribunal under section 11. Otherwise, the forms of decision are governed by the legislation under which the appeal is heard.
Appeals under TCEA ss11 and 12
14.12The forms of decision by the Upper Tribunal on an appeal under section 11 are partly governed by section 12. They depend on whether the tribunal finds that the decision under appeal involved the making of an error on a point of law.
14.13An error of law was originally seen as a mistake. If the tribunal had made a mistake, the issue then arose of disposal. If the mistake had not affected the outcome, it might be possible to dispose of the case without a rehearing. This depended on the powers available on appeal. It might be possible to set the decision aside and substitute one to the same effect or to short-circuit the process and simply dismiss the appeal.
14.14In time, the issue of materiality moved from being a disposal issue to part of the jurisdictional criteria of an appeal. It became incorporated into the definition of error of law. This reached its highest in the judgment of Brooke LJ in
R (Iran) v Secretary of State for the Home Department.
1[2005] EWCA Civ 982. He incorporated materiality into his statement of each of the common errors of law and added it as an overarching requirement for all errors of law.
14.15This presents a difficulty for drafting. Which view of error of law should the drafting assume? TCEA s12(2)(a) takes the safe course by conferring an express power not to set aside a decision despite an error of law.
14.16If the Upper Tribunal finds that the decision did involve the making of an error on a point of law, it has the powers given by section 12. It may refuse to set aside the decision, set aside the decision and remit the case for reconsideration, or set aside the decision and re-make it.
14.17The Upper Tribunal has power under section 12(2)(a) not to set aside the First-tier Tribunal’s decision aside despite the fact that it involved an error of law. However, if it exercises that power, it cannot make findings of fact. The power to do that (s12(4)(b)) only arises if the decision under appeal is set aside.
14.18The possible forms of decision are not comprehensively stated. TCEA does not use the concept of dismissing an appeal or stipulate when it is appropriate to do so. However, this is the only form of decision available if the tribunal does not find that the decision under appeal involved the making of an error on a point of law. It is also the only form available if the tribunal does not have jurisdiction to hear the appeal.
14.19The Upper Tribunal has no power on an appeal to give a declaration.
2London Borough of Camden v FG [2010] UKUT 249 (AAC) at [81]; Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 at [49]. However, the legal position can be made clear in the tribunal’s reasons, in effect providing a declaration in narrative form. This approach has been taken by the courts
3R (Hunt) v North Somerset Council [2015] 1 WLR 3575 at [12]; R (Kay) v Commissioner of Police of the Metropolis [2008] 1 WLR 2723 (despite the preference of Baroness Hale at [54]); Rolls-Royce plc v Unite the Union [2010] 1 WLR 318 at [41]–[42]; Watch Tower Bible and Tract Society of Britain v the Charity Commission [2016] EWCA Civ 154 at [24]; R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717. and the Upper Tribunal.
4BB v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC); KF, MO and FF v Birmingham and Solihull NHS Mental Health Foundation Trust [2010] UKUT 185 (AAC).14.20It is not necessary to deal with every ground of appeal in order to set aside a decision.
5Floe Telecom Ltd v Office of Communications [2006] 4 All ER 688 at [28].Evidence
14.21In
VH v Suffolk County Council,
6[2010] UKUT 203 (AAC). the judge explained when additional evidence would be relevant on an appeal before the Upper Tribunal:
The first question for the Upper Tribunal under this section is: did the making of the First-tier Tribunal’s decision involve the making of an error on a point of law? The Upper Tribunal must answer this question on the evidence that was before the First-tier Tribunal. A tribunal cannot go wrong in law by failing to take account of evidence that was not before it. See the decisions of the Social Security Commissioner in R(S) 1/88 at [3] and of Underhill J in R (S) v Hertfordshire County Council [2006] EWHC 328 (Admin) at [25]. If the answer to this question is ‘no’, the Upper Tribunal’s only power is to dismiss the appeal. If the answer is ‘yes’, a second question arises.
The second question is: how should the tribunal dispose of the case? There are three options: (a) leave the First-tier Tribunal’s decision in place; (b) remit the case to the First-tier Tribunal; (c) re-make the decision. The tribunal may take account of additional evidence in order to decide which form of disposal is appropriate. If it decides to re-make the decision, evidence will also be needed of current circumstances.
In practice, it can be difficult for parties to know when additional may be relevant. For example, an oral hearing of an application may also consider the appeal and disposal. The Upper Tribunal, and representatives for other parties, need to be flexible in receiving evidence whose ultimate relevance will depend on how the case proceeds. Forcing a party to produce the additional evidence only if and when it is required could lead to inefficiency and delay.
7[2010] UKUT 203 (AAC) at [7]–[9].Set aside or not set aside?
14.22If the Upper Tribunal finds that the decision under appeal involved the making of an error on a point of law, it may set it aside (s12(1) and (2)(a)). This is a power, not a duty. The tribunal may, but need not, set the decision aside.
14.23The scope of the discretion not to set aside will depend on how the tribunal interprets ‘making of an error on a point of law’.
8See chapter 4. If it decides that this covers all errors of law, regardless of their possible impact on the outcome of the case below, this power will allow it to dismiss an appeal if the error could not have affected the outcome. However, if it decides that it only covers errors that are material in the sense that they affected, or may have affected, the outcome, the scope of the discretion will be limited.
14.24Whatever the interpretation, the discretion may be used if the decision on that issue is no longer of practical significance to the parties.
Remit or re-make?
14.25If the Upper Tribunal sets a decision aside on an appeal, it has two options: it has power either to remit for reconsideration or to re-make the decision under appeal (s12(1) and (2)(b)).
Remitting
14.26An appellate tribunal may only exercise its own powers. It cannot, having allowed an appeal, exercise powers that are conferred on the tribunal below.
9Floe Telecom Ltd v Office of Communications [2006] 4 All ER 688.14.27The Upper Tribunal may direct a complete rehearing or remit specific or limited issues.
10Aparau v Iceland Frozen Foods plc [2000] ICR 341; Jones (t/a Shamrock Coaches) v Department of Transport Welsh Traffic Area (2005) Times 24 January; Way v Poole Borough Council [2007] EWCA Civ 1145,(2007) Times 25 October; Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [15]; Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 at [20]. For an instance in which legislation permits a limited remittal to the Secretary of State, see R (Perrett) v Secretary of State for Communities and Local Government [2010] 2 All ER 578. Constitution
14.28Section 12(3)(a) allows the Upper Tribunal to remit a case to a differently-constituted tribunal. However, the circumstances may allow the case to be remitted to a tribunal constituted in the same way.
11Secretary of State for the Home Department v AF (No 2) [2008] 2 All ER 67; Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 at [20]. This is compatible with article 6
12Jones (t/a Shamrock Coaches) v Department of Transport Welsh Traffic Area (2005) Times 24 January. and there is no objection in principle to the case being reheard by a judge who refused permission to appeal to the Upper Tribunal.
13Mahomed v Morris (2000) Times 3 February.14.29The Employment Appeal Tribunal analysed the factors relevant to the exercise of this discretion in
Sinclair Roche & Temperley v Heard and Fellows.
14[2004] IRLR 763. (i) What constitution would be the more proportional? (ii) Has the passage of time affected the ability of the same panel to hear the case? (iii) Is there a risk of bias, pre-judgment or partiality? (iv) If the decision under appeal was totally flawed, could the same panel could get it right this time? (v) Could the same panel put its previous decision and views to one side? (vi) Can the same panel be professional in its approach to a rehearing?
14.30If the Upper Tribunal remits the case to the same tribunal, it is good practice to give alternative directions in case that tribunal cannot be re-assembled within a reasonable time.
Directions
15On the different powers to give directions, see Dransfield v the Information Commissioner and Devon County Council [2013] UKUT 0550 (AAC) at [10]. 14.31Section 12(2)(b)(i) requires the Upper Tribunal to give directions for the reconsideration of the case. These directions will be ones relating to the substantive law. The tribunal that rehears the case must follow those directions. This follows from the status of the decision as a precedent on matters of law that it decides.
16BPP Holdings v Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 121 at [25] and [35]. If it is binding on the First-tier Tribunal generally, it must be binding in the individual case. This does not, though, mean that a failure to follow a direction will necessarily amount to an error of law.
17SD v Secretary of State for Work and Pensions [2015] UKUT 0116 (AAC) at [8]-[10]. Section 12(3)(b) allows the Upper Tribunal to give procedural directions in connection with the reconsideration of the case. This power is in addition to directions given under section 12(2)(b)(i).
18In SD v Secretary of State for Work and Pensions [2015] UKUT 0116 (AAC) at [9], the judge said that the power under s12(3)(b) was illustrative or comfirmative of what was covered by s12(2)(b)(i), but that is difficult to reconcile with the use of the word ‘also’ in s12(3). The procedural directions that are appropriate may vary from time to time and depend on such factors as the constitution of the tribunal for the rehearing and the nature of the parties’ representation. By their nature, they will not be comprehensive and will only apply unless the First-tier Tribunal directs otherwise.
Re-making
14.32Re-making a decision means substituting a decision for that of the First-tier Tribunal;
19In AW v Secretary of State for Work and Pensions [2013] UKUT 020 (AAC) at [24], the judge commented, without reaching a decided view, that if the First-tier Tribunal’s decision dealt only with a preliminary issue, it was only appropriate to re-make the decision on that issue, remitting other issues to the First-tier Tribunal. it does not refer to the process by which that is done.
20Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [15]. If the Upper Tribunal re-makes the decision, it may make such findings of fact as it considers appropriate (s12(2)(b)(ii) and (4)).
14.33The Upper Tribunal can only make the decision that the First-tier Tribunal could make if it were re-making the decision.
21This includes the power to vary the sanction imposed: R (Chief Constable of Avon and Somerset Constabulary) v Police Appeals Tribunal (2004) Times 11 February. This affects the scope of the decision that the Upper Tribunal may make in two ways. First, it limits the Upper Tribunal to the powers that would be available to the First-tier Tribunal. But second, it allows the Upper Tribunal to take account of any change of circumstances, if (and only if) that power would be available to the First-tier Tribunal.
22See chapter 4.14.34The Upper Tribunal may re-make the decision on the basis of the findings made by the First-tier Tribunal. The default position is that an appellate body should accept the findings made below unless they were not supported by the evidence or were clearly wrong.
23P v Secretary of State for the Home Department (2004) Times 14 December. However, the Upper Tribunal may make its own findings. These may be in addition to, or substitution for, those of the First-tier Tribunal. The Upper Tribunal is more likely to differ from the First-tier Tribunal in respect of inferences than findings of primary fact.
24Viscount Simonds and Lord Morton in Benmax v Austin Motor Co Ltd [1955] AC 370 at 373–374 and 374. It is for the Upper Tribunal to decide the nature and scope of the hearing necessary to re-make a decision, including whether or not to re-open findings made by the First-tier Tribunal.
25Sarkar v Secretary of State for the Home Department [2014] EWCA Civ 195 at [14]-[15].14.35In some jurisdictions, it is the general policy to direct a rehearing rather than make findings of fact and re-make a decision.
26This is the practice in the Employment Appeal Tribunal, unless the error made by the employment tribunal was immaterial or there was only one decision that the tribunal could properly have made: Jafri v Lincoln College [2014] ICR 920 at [21]. This approach has to be applied robustly and with due regard to the overriding objective: Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 at [20]. In other jurisdictions, the general poicy is to re-make the decision.
27This is the practice in immigration and asylum, which is the subject of a practice statement: JA (Ghana) v Secretary of State for the Home Department [2015] EWCA Civ 1031. Under TCEA, the wide powers given to the Upper Tribunal and the range of cases within its jurisdiction suggest that a general policy across all Chambers is inappropriate.
14.36The decision whether to remit a case or re-make a decision is discretionary.
28This was conceded to the House of Lords in Saber v Secretary of State for the Home Department [2008] 3 All ER 97 at [10]. Among the relevant factors are those listed below.
Evidence
14.37The Upper Tribunal cannot substitute a decision unless it has the necessary evidence. If it is to rely on the evidence recorded by the First-tier Tribunal, it must be sure that the record is complete and that all relevant evidence was obtained. If not, it must obtain the evidence for itself in order to re-make the decision. As the Upper Tribunal is likely to be located more centrally than the First-tier Tribunal, it may be more convenient for this evidence to be obtained at a rehearing.
Change of circumstances
14.38If the tribunal at the rehearing is able to take account of up-to-date circumstances, changes in those circumstances will be relevant to the disposal of the appeal.
29Saber v Secretary of State for the Home Department [2008] 3 All ER 97.Knowledge and experience
14.39The panel members of the First-tier Tribunal may
30Burrell v Micheldever Tyre Services Ltd [2014] ICR 935 at [17]. have knowledge, experience or expertise that is not available, or so readily available, to the Upper Tribunal. If the evidence is not complete, this factor may indicate a rehearing. Even if the evidence is complete, the panel members of the First-tier Tribunal may be better able to assess it. If local knowledge is required or helpful, a rehearing is the better course.
Clear direction on the law
14.40The ease with which the Upper Tribunal can direct the First-tier Tribunal on the law to be applied is a further factor. If the law is clear or can be stated clearly, a rehearing is possible. However, the law may be particularly difficult to state clearly, perhaps without having specific findings on which to base the statement. If so, it may be better to re-make the decision rather remit the case to the First-tier Tribunal with inadequate directions for reconsideration.
Precedent status
14.41There can be a danger in the Upper Tribunal giving a decision on the facts. The status of that tribunal and the publication of its decisions may create the impression that the decision on the facts has value as a precedent. This false impression can cause problems for the First-tier Tribunal and decision-makers, especially if the decision is relied on by representatives.
Time considerations
14.42The possibility of a further appeal may suggest re-making a decision in order to bring the proceedings to an end. Also, the size of the respective workloads of the First-tier and Upper Tribunals may indicate whether directing a rehearing or re-making a decision is more appropriate.
Inadequacy of reasons and materiality
14.43According to Lord Nicholls in
Shamoon v Chief Constable of the Royal Ulster Constabulary:
31[2003] ICR 337 at [15].Insufficiency of reasons ordinarily leads to the case being remitted for a rehearing … Such a direction is not appropriate if there was no evidence on which a properly directed tribunal could have upheld the claimant’s application.
Procedural errors
14.44Procedural errors that amount to an error of law but have not affected the outcome should not usually justify a rehearing.
Appeals to the Court of Appeal under TCEA and to the Supreme Court
14.45The powers of the Court of Appeal under section 14 on appeal against a decision of the Upper Tribunal are the same as for the Upper Tribunal under section 12.
32Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545 at [34]; Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 at [49]. The Court has, however, without referring to its limited statutory powers given a remedy on appeal that the Upper Tribunal could not have given.
33In Burnip v Birmingham City Council [2013] PTSR 117 at [24], the Court gave a declaration, a remedy that is only available to the Upper Tribunal in judicial review proceedings. It is possible that the same restriction does not apply to the Supreme Court.
34Mathieson v Secretary of State for Work and Pensions [2015] 1 WLR 3250 at [49]. Appeals under other legislation
14.46The legislation providing for an appeal may take various forms.
14.47The legislation may provide merely for an appeal without specifying any form that the decision may take. This suggests, depending on the context, that the decision on appeal may take any form that the decision-maker could have given. In
R(IB) 2/04, a Tribunal of Commissioners said of such a provision:
35R(IB) 2/04 at [18].It is accepted by both Counsel – and, indeed, it is universally accepted, that appeal tribunals have some powers of decision, such as to substitute the proper decision on a claim in allowing an appeal against an initial decision on a claim. Since these powers must be found by a process of implication, in our view the absence of express statutory powers for an appeal tribunal in any particular instance can have little, if any, significance.
Another power that must always be implied is to dismiss the appeal.
14.48The legislation, having provided for an appeal, may specify the forms that a decision may take and the grounds on which or circumstances in which each may be made. For example: section 100B(2) of the Taxes Management Act 1970 sets out the circumstances in which various forms of decision must be given. Depending on the context, these different forms of legislation may or may not be narrower than merely providing for an appeal. At the least, they provide a framework of language for expressing the tribunal’s decision.
Referrals
14.49The forms of decision that may be made on a referral depend on the nature of the referral.
14.50If no decision has yet been taken, the tribunal takes the decision as for the first time.
14.51If a decision has been taken and referred, the legislation may specify the forms that the decision may take. For example: section 109(3) of the Social Security Act 1975 provided that a medical appeal tribunal ‘may confirm, reverse or vary the decision in whole or in part as on an appeal’.
36Re-enacted as Social Security Administration Act 1992 s46(3) and now repealed by Social Security Act 1998 s86(2) and Sch 8. This provision dealt with references, but by implication also set out the possible forms of decision on an appeal.