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Appealing against a tribunal decision (MHT)

Before the TCEA, the Tribunal could not revisit its own final decisions. To challenge a decision, a judicial review claim would have been issued in the High Court (and the Tribunal would concede if it recognised its error). The Upper Tribunal has now generally taken on that role. The deadline is now 28 days (“after the date on which the Tribunal sent notice of the decision to the party”) rather than ‘promptly and in any event within 3 months’ (see rule 45).

Process

The following is a brief description of the current appeals process:

  • The First-tier Tribunal can correct clerical errors or accidental slips under rule 44.
  • The First-tier Tribunal can set aside and re-make a decision which had been made because of a procedural irregularity (e.g. a party was not notified of the hearing) under rule 45. Application form P9 is used to seek this.
  • The First-tier Tribunal can ‘review’ a decision if there is a clear error of law and can re-make the decision or remit it for reconsideration under rule 46. (To ‘review’ is more than to reconsider: the Tribunal might consider it in detail but decide not to ‘review’.) Application form P10 is used to seek this.
  • Application form P10 is also used, in the alternative, to ask the First-tier Tribunal for permission to appeal to the Upper Tribunal on a point of law.
  • If the First-tier Tribunal refuses permission to appeal then an application for permission can be made to the Upper Tribunal.
  • The Upper Tribunal also has a judicial review jurisdiction.
  • Judicial review of an Upper Tribunal decision which is unappealable (for instance the Upper Tribunal’s refusal of permission to appeal to itself) is available where the ‘second-tier appeal criteria’ apply, i.e. whether the case raises an important point of principle or practice or there is some other compelling reason for the court to hear it (R (Cart) v Upper Tribunal [2011] UKSC 28M).
  • Appeals from the Upper Tribunal go to the Court of Appeal.

Grounds

Appeals can be based on various grounds, for example inadequate reasons for disagreeing with independent evidence (BB v South London and Maudsley NHS Foundation Trust [2009] UKUT 157 (AAC)M) or the judge expressing a firm conclusion, as opposed to a preliminary view, at the outset of the hearing (RN v Curo Care [2011] UKUT 263 (AAC)M, MB v BEH MH NHS Trust [2011] UKUT 328 (AAC)M).

A more unusual case was JG v Kent and Medway NHS and Social Care Partnership Trust [2019] UKUT 187 (AAC)M, in which the tribunal judge undertook non-legal research by accessing a Court of Appeal judgment which had not been submitted in evidence. The Upper Tribunal decided that undertaking the non-legal research was a procedural irregularity but on the facts the hearing was not unfair.

If you consider that a decision is unlawful but are uncertain about drafting grounds then you should consult a colleague or counsel.

Upper Tribunal guidance

The situation was summed up in JLG v Managers of Llanarth Court [2011] UKUT 62 (AAC)M [3] as follows:

An appeal to the Upper Tribunal can only succeed if ‘the making of the decision concerned involved the making of an error on a point of law’ (section 12(1) of the Tribunals, Courts and Enforcement Act 2007). The essence of the legal requirement for a tribunal’s decision is that: (i) the tribunal asked itself the correct legal questions; (ii) it made findings of fact that were rationally based in the evidence; and (iii) it answered the legal questions appropriately given its findings of fact. Additionally, the tribunal must: (iv) give the parties a fair hearing; and (v) provide adequate reasons. In simple terms, the issue is whether the tribunal did its job properly.

In HK v Llanarth Court Hospital [2014] UKUT 410 (AAC)M, [2014] MHLO 95 the Upper Tribunal set out guidance for Tribunals, which is useful in considering whether there are grounds for appeal:

10. By way of context, both the tribunal and the parties will have knowledge of the written and the oral evidence before the tribunal. Second, both the tribunal and the parties are very likely to be informed about the relevant law. The only exception to this may be when the patient is not legally represented. Finally, … justice will not be done if it is not apparent from the tribunal’s reasons to the parties why one has won and the other has lost. … 11. What follows is intended to be of assistance to tribunals composing reasons in mental health cases. … 12. First, it would be helpful if tribunals were to set out their reasons by reference to the relevant criteria for detention. … [I]t might be better if tribunals were to set out their reasons under the headings provided by the legal questions they have to determine. … 13. Second, the tribunal’s reasons should address how the tribunal dealt with any disputes as to either the law or the evidence. If this is not done, the unsuccessful party might believe that the tribunal has ignored important issues. In particular, failing to address explicitly any applications made by one or other of the parties may render a set of reasons inadequate. … 14. Third, the reasons themselves must be clear and unambiguous. It is not for a party to deduce the reasons for a decision. 15. Fourth, rehearsing what each witness told the tribunal is, without more liable to render a set of reasons erroneous in law. What is required is to explain (i) what facts the tribunal found as a result of that evidence and (ii) what conclusions on those facts the tribunal reached. 16. Fifth, it is not necessary for the tribunal’s reasons to mention all of the evidence in a case. It is entitled to be selective in its references to evidence …

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