Tribunal Procedure (Amendment) Rules 2025

The changes to the HESC rules relate to (1) making decisions which dispose of reference proceedings without a hearing (informally called paper hearings) under Tribunal rule 35; and (2) setting aside decisions under Tribunal rule 45. The intention of the rule 35 change is to undo the 2024 amendment which accidentally applied extra safeguards for CTO patients (those being requirements that the first and at least alternate decisions thereafter be made at hearings). But an accidental side-effect of the 2025 amendment is to remove those and other safeguards from detained patients. Their safeguards now do not apply if their case either has not previously been considered by the tribunal or was last considered without a hearing (which is the reverse of what must be intended). The lost safeguards are any restrictions on repeated paper hearings (as above), the requirement to be legally represented, and the requirement that the representative state in writing: that the patient does not wish to attend or be represented; that the representative has discussed any reports or other documents provided; and that the patient has capacity to decide. (The requirement that the tribunal be satisfied of patient's capacity is possibly also part of the disapplied detained-patient safeguards.) The change to rule 45 expressly provides that the set-aside power can be exercised either on the application of a party or on the tribunal's own initiative.

Explanatory Note

These Rules amend the tribunal procedure rules that apply in the First-tier Tribunal and Upper Tribunal, to expressly provide that the power to set-aside a decision of a tribunal which disposes of proceedings can be exercised by the First-tier Tribunal and Upper Tribunal, either on the application of a party or on the tribunals’ own initiative. These amendments are made to clarify the tribunals’ power to set-aside, following the decision of the Upper Tribunal in MA v Secretary of State for Work and Pensions [2020] UKUT 172 (AAC)^B.

Additionally, rule 5(2) amends rule 35(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008/2699) (restrictions on disposal of proceedings without a hearing) (as inserted by rule 4(2)(b) of the Tribunal Procedure (Amendment No. 2) Rules 2024) (S.I. 2024/1283) (“2024 Amendment No. 2 Rules”) to narrow its application to hospital-based patients only. Currently, rule 35(5) provides that the Tribunal may not make a decision without a hearing on certain references, where the patient’s case has not previously been considered by the Tribunal or where the patient’s case was last considered by the Tribunal without a hearing. The amendment restores the right of community patients whose case has been referred to the Tribunal, to choose not to have a hearing of their reference in all circumstances, as was the case prior to amendments made by the 2024 Amendment No. 2 Rules.

No impact assessment has been carried out for these amendments as no, or no significant impact, on the private, voluntary, or public sectors is foreseen.

LEGISLATION DATABASE

Full text: Legislation.gov.uk

Type: UK Statutory Instrument🔍

Year: 2025🔍

Number: 561

Subject: Tribunal legislation🔍

In force: 30 May 2025

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