Suspending the effect of a decision
The power
15.63Under TCEA, the First-tier Tribunal has power to suspend the effect of its decisions and the Upper Tribunal has power to suspend the effect of both its decisions and those of the First-tier Tribunal, pending an appeal or review. This is a case management power. UTR r5(3)(l) and (m) is illustrative:
1See also: GRC Rules r5(3)(l); HESC Rules r5(3)(l); IAC Rules r4(3)(l); Lands Rules r5(3)(l) and (m); PC Rules r6(3)(o); SEC Rules r5(3)(l); Tax Rules r5(3)(l); WPAFC Rules r5(3)(l). The CPR equivalent is CPR 52.7 (where the process is called ‘stay’), but this applies to orders and decisions, not to their effects.(3)In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may–
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(l)suspend the effect of its own decision pending an appeal or review of that decision;
(m)in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal; …
15.64There is no express enabling power for these rules. They must be authorised by paragraph 16 of Schedule 5 TCEA as ancillary powers that are necessary to the proper exercise of the tribunal’s functions.
15.65The First-tier Tribunal has no power to suspend a decision under appeal to it, but the High Court may achieve a similar effect by injunction.
2CC & C Ltd v Revenue and Customs Commissioners [2015] 1 WLR 4043 at [17] and [41]-[44]. The Court of Appeal confirmed the judge’s decision refusing to grant an injunction.The scope of the power
15.66The power may be used in at least two different circumstances.
15.67First, the power allows suspension in order to preserve the status quo and to render the appeal or review process effective.
3R (H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 at [42]. For example: if the successful party is allowed to enforce the decision pending appeal, it may be impossible to restore the position if the appeal is successful.
15.68Second, the power allows suspension in order to relieve the hardship that one party may suffer if the decision is enforced but then reversed on appeal.
15.69The power applies to the effect of a decision, not just the decision itself. This allows the Upper Tribunal to suspend not only the decision of the First-tier Tribunal but the decision of the decision-maker that was under appeal. Otherwise, the power to suspend could be ineffective.
15.70The power does not allow a suspension in order to relieve a party of having to apply the decision to other cases unless and until it has been confirmed on appeal.
4Secretary of State for the Home Department v AD and MM (No 2) [2009] UKUT 69 (AAC). For example: a decision-maker may have to apply the reasoning in the decision to numerous other cases, all of which will have to be redecided if the decision is reversed on appeal.
15.71Nor does the power allow a suspension of the effect of a decision that a provision was made without statutory authority. The effect of a such a decision is merely declaratory that the provision was made without authority and was of no effect in law. It would be incompatible with the nature of such a decision to suspend its effect.
5Ahmed v HM Treasury [2010] 4 All ER 829.Deciding whether to exercise the power
15.72The power is discretionary. It must be exercised judicially and in the light of the overriding objective. Sullivan LJ explained the process in
Department for Environment, Food and Rural Affairs v Downs:
6[2009] EWCA Civ 257 at [8]–[9].A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking the stay, and, if such grounds are established, a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted. It is fair to say that those reasons are normally of some form of irremediable harm if no stay is granted … It is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because he has to live, at least temporarily, with the consequences of an unfavourable judgment which he wishes to challenge to the Court of Appeal.
15.73One relevant factor is whether there are other powers that allow the party’s position to be protected. For example: the social security legislation contains powers that prescribe the handling of cases that depend on test cases
7Social Security Act 1998 ss25–26; Child Support Act 1991 ss28ZA–28ZB. and that authorise the Secretary of State to suspend payment of benefit.
8See: Social Security Act 1998 s21(2)(c) and (d); Child Support, Pensions and Social Security Act 2000 Sch 7 para 13(2)(c) and (d).15.74The Upper Tribunal considered the exercise of the power in
Carmarthenshire County Council v M & JW.
9[2010] UKUT 348 (AAC); [2011] AACR 17. The judge took a flexible approach, refusing to treat any particular likelihood of a successful appeal as a threshold criterion.
10[2010] UKUT 348 (AAC); [2011] AACR 17 at [20]–[21]. He also declined to treat the existence of a solid ground for exercising the power as a separate requirement from the balancing exercise of discretion.
11[2010] UKUT 348 (AAC); [2011] AACR 17 at [25].Procedure
15.75The procedure for applying to the Upper Tribunal for a suspension is contained in UTR r20A.
Urgent applications
15.76Ideally, the person affected should be allowed a chance to make representations on the suspension. However, the circumstances may justify the tribunal in ordering suspension urgently. The breach of fairness in this procedure can be remedied by allowing the person a chance to apply for the suspension to be removed. Alternatively, the tribunal could order a suspension for a short period only, so that the person would have a chance to make representations before the issue is reconsidered.
Emergency applications
15.77If the First-tier Tribunal refuses to suspend its decision, the Upper Tribunal has power to do so. It will have that power in two circumstances: (i) on an application for permission to appeal; and (ii) if the First-tier Tribunal gave permission, on an appeal. The matter may be so urgent that there is no time to lodge the application or appeal in accordance with the rules of procedure at the tribunal’s office. In that case, an application may be made to the duty High Court judge taking out-of-hours work. That judge will sit as a Judge of the Upper Tribunal and will have to decide: (i) whether to waive the failure to comply with the requirements of the rules on the making of an application for permission or the providing notice of an appeal; and (ii) whether to suspend the decision of the First-tier Tribunal.
Detention of a patient
15.78The power to order the continued detention of a patient in a mental health case must be used sparingly.
12R (H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 at [48].Judicial review
15.79In
R (JW through DW) v The Learning Trust,
13[2009] UKUT 197 (AAC). the Upper Tribunal considered an application for a judicial review of a decision-maker’s decision. In effect, the applicant sought suspension of the decision pending an appeal to the First-tier Tribunal. The tribunal decided that it had jurisdiction, but that it had to be exercised sparingly if the tribunal’s rules of procedure do not allow for interim relief and the decision-maker’s rules contain no power of suspension.