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• 14 Feb 2022

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  Yes. See FTT (HESC) Rules 2008 r45-49.

  The FTT may “set aside” a decision which was made by the FTT which disposed of proceedings and remake it (normally a different FTT judge is involved in that process) if (1) it is in the interests of justice to do so and (2) EITHER a document relating to the proceedings was not sent/received by party OR a document relating top proceedings was not sent to the FTT at an appropriate time OR a party/representative was not present at a hearing OR there has been some other procedural irregularity: FTT (HESC) Rules 2008 rule 45. This power is limited to procedural mishaps and errors, not matters that go to the substance of the decision: Worcestershire CC v JJ [2014] UKUT 406 (AAC) #13. 

  An application for permission to appeal to the UT must be made first to the FTT within 28 days of the latest of (1) the decision notice, (2) written reasons, (3) notification of amended reasons, (4) notification an application to set aside has been unsuccessful: FTT (HESC) Rules 2008 r46. Upon receipt the FTT must consider whether to review the decision in accordance with FTT (HESC) Rules 2008 r49 and if it declines it must provide reasons and notification of the right to seek permission to appeal from the UT. 

  The FTT can undertake a review in two situations: FTT (HESC) Rules 2008 r49. 

  First, it can undertake a review if it is satisfied there is an error of law in the decision: FTT (HESC) Rules 2008 rule 47(1) and rule 49(1)(a). As to the scope of this power, see RB v First Tier Tribunal (Review) [2010] UKUT 160 (AAC) #24: “It cannot have been intended that the power of review should enable the First Tier Tribunal to usurp the Upper Tribunal’s function of determining appeals on contentious points of law. Nor can it have been intended to enable a later First Tier Tribunal judge or panel, or the original First Tier Tribunal judge or panel, to re-decide the matter. This [the power of review] is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made because, for instance, it is important to have an authoritative ruling… …The key question is what, in all the circumstances of the case, including the degree of delay that may arise from alternative courses of action, will best advance the overriding objective of dealing with a case fairly and justly....”. See further Oxfordshire CC v GB [2001] EWCA Civ 1358#9: the FTT is required to give reasoned decisions and should not respond to an appeal by purporting to amplify its reasons. 

  Second, it can review if “circumstances relevant to the decision have changed since the decision was made: FTT (HESC) Rules 2008 rule 48 and rule 49(1)(b). Although the provisions in relation to a change in circumstances are not drafted particularly clearly, that there is a change of circumstances is a “threshold” question, which if satisfied, triggers a review. Whether there is a change of circumstances is a matter for the FTT, but where it had relied heavily upon an Ofsted report which was superseded shortly after the decision was published the test was satisfied and the FTT had to at least conduct a review: R (EL and JB) v STT and Surrey CC (JR) [2020] UKUT (AAC) #12. If the FTT asks itself whether a change in circumstance “would have affected the decision”, this is setting the bar too high: TN v FTT and East Sussex CC [2021] UKUT 98 (AAC) #12.

  In reviewing a decision, the UT judge should not discuss matters with the FTT judge (whose decision is under challenge), nor should the UT (having allowed an appeal) determine the scope of the decision to be made by the panel re-deciding the matter: LW v Norfolk CC [2015] UKUT 65 (AAC)#23-24. 

  It is generally not a proper exercise of the FTT’s discretion in deciding whether to review, to refer a matter to the UT which requires practical educational expertise: Harrow Council v AM [2013] UKUT 157 (AAC)#18. 

  [new paragraph November 2022] There is no right of appeal against a review decision of the FTT: Tribunals, Courts and Enforcement Act 2008 s11(5)(d), AB v Newport CC [2022] UKUT 190 (AAC) #21.

  A consent order constitutes a decision for the purposes of FTT (HESC) Rules 2008 Part V and therefore can be appealed: R v FTT and Hertfordshire CC [2012] UKUT 213 (AAC).

  Where, following review, the FTT is to re-decide a case it should hold a hearing unless both parties do not want one: Essex CC v TB [2014] UKUT 559 (AAC)#45. 

  It is not possible to appeal a refusal of the FTT to review, and the only remedy is judicial review: Tribunal, Courts and Enforcement Act 2007 s11(1) and (5)(d), TN v FTT and East Sussex CC [2021] UKUT 98 (AAC) #5. 

  Go to Glossary

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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