Transfer of Tribunal Functions Order 2008

This order, which came into force on 3/11/08, made under the Tribunals, Courts and Enforcement Act 2007, amongst other things, creates the First-tier Tribunal and the Upper Tribunal.

Extract from official explanatory note

This Order is made under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Part 1 of the 2007 Act creates a new two tier tribunal structure; the First-tier Tribunal and the Upper Tribunal (“the new tribunals”) are established under section 3 of the 2007 Act. Order making powers are provided under Part 1 of the 2007 Act to enable existing tribunals to be transferred into the new structure. This Order has various primary functions to effect the transfers, and in addition contains various minor, consequential and transitional provisions, as explained below.

Transfer of functions of tribunals

Article 3 transfers the functions of the tribunals listed in the tables in Schedule 1 to the new tribunals.

(...) In the case of Mental Health Review Tribunals the transfer relates only to tribunals in England; the Mental Health Review Tribunal for Wales retains its functions.

Abolition of tribunals following transfer of functions

Article 4 abolishes the tribunals from which the functions are transferred under article 3 (with exceptions to provide for tribunals to remain in place to hear the Scottish appeals which are not transferred).

Transfer of members of tribunals

Article 5 provides for members of the tribunals from which the functions are transferred by article 3 to hold the offices of transferred-in judge or transferred-in other member of the First-tier Tribunal, or deputy judge or transferred-in judge of the Upper Tribunal. Those members becoming deputy judges of the Upper Tribunal also become transferred-in judges of the First-tier Tribunal. The tables in Schedule 2 set out which tribunal members hold which offices in the new tribunals. (...)

Appeals to the Upper Tribunal from tribunals in Wales, Scotland and Northern Ireland

Article 6 provides for an onward appeal right to the Upper Tribunal from decisions of the Mental Health Review Tribunal for Wales and the Special Educational Needs Tribunal for Wales in place of the previous onward appeal right to the High Court. (...)

Minor and consequential provisions

Article 9 brings Schedule 3 into effect. Schedule 3 contains minor and consequential amendments. (...)

Amendments to the Mental Health Act 1983 ensure that that Act as amended refers to the First-tier Tribunal so far as proceedings relating to England are concerned, but to the Mental Health Review Tribunal for Wales (“MHRTfW”) so far as proceedings relating to Wales are concerned, and retains provisions relating to the constitution and procedure of the MHRTfW. That Act as amended also includes provision for the new appeal right from the MHRTfW to the Upper Tribunal. (...)

Transitional and saving provisions

Article 9(2) brings Schedule 4 into effect. Schedule 4 make transitional and saving provisions for the treatment of cases which would previously have been dealt with by the tribunals from which the functions are transferred by article 3, or onward appeals from those tribunals, following the coming into force of this Order.

The Schedule provides for proceedings which have been started in tribunals from which the functions are transferred by article 3 to be transferred to the new tribunals; new proceedings will be started in the new tribunals. In transferred cases the following provisions apply:

- a hearing which has already been commenced but not completed will need to be completed in the new tribunal but comprised of the same members;

- directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the new tribunals;

- Tribunal Procedure Rules made under the Tribunals, Courts and Enforcement Act 2007 will apply to all cases from day one, but the new tribunals will be able to disapply Tribunal Procedure Rules, apply procedural rules which applied to the abolished tribunals or make other directions to ensure that proceedings are dealt with fairly;

- time limits which begin to run before this Order comes into force continue to apply after the Order comes into force; and

- the new tribunals will only be able to make a costs order if and to the extent that the tribunal from which the case was transferred could have made such an order.

Onward appeals against the decisions of tribunals from which the functions are transferred by article 3 are dealt with as follows:

- onward appeals against decisions given before 3rd November 2008 by a Mental Health Review Tribunal, the Special Educational Needs and Disability Tribunal, the Special Educational Needs Tribunal for Wales or the “Care Standards Tribunal” will continue to be made to the High Court, even if the onward appeal proceedings are not commenced until after that date. Onward appeals against decisions given on or after 3rd November 2008 must be made under the new regime;

- onward appeals against decisions given before 3rd November 2008 which would before that date have been heard by a Social Security Commissioner or Child Support Commissioner, but which are made after that date, must be made under the new regime; and

- onward appeals against decisions given by a Social Security Commissioner or Child Support Commissioner before 3rd November 2008, which are made after that date, must be made under the new regime.

Resources

Transfer of Tribunal Functions Order 2008 on OPSI website

Explanatory Memorandum on OPSI website