Part 1: Tribunals and Inquiries Schedule 3 Section 11: Right to appeal to Upper Tribunal
106.A party to a case generally has a right of appeal on a point of law from the First-tier Tribunal to the Upper Tribunal. The right of appeal is subject to permission being given, following application by the party, by either the First-tier Tribunal or the Upper Tribunal. But there is no right of appeal against a decision which is “excluded”. Excluded decisions are listed in subsection (5). The Lord Chancellor has a limited power to add to the list by order under subsection (5)(f).
107.The basic pattern of appeal rights will for the most part remain as they are now when jurisdictions transfer to the new tribunal. Where there is currently a right of appeal, it will also exist after transfer. Where decisions currently carry no appeal rights, the transfer of the jurisdiction to the First-tier Tribunal will give rise to new onward-appeal rights unless an order excluding such rights is made under section 11(5)(f) in reliance on section 11(6)(b).
108.In some jurisdictions it is not possible to appeal from the decision of a tribunal, even on a point of law. Equally, in some jurisdictions, tribunals hear appeals on a range of grounds which are not restricted to a point of law. Where there are currently no appeal rights in transferring jurisdictions the continuation of that exclusion will fall to be reviewed in deciding whether to exercise the power under section 11(5)(f) and (6)(b).
109.Subsection (6) limits the Lord Chancellor’s power to add to the list of excluded decisions. As a result, the power can be used for two purposes only. The first purpose is the preservation of existing appeal rights where those rights are, or include, something other than a right to appeal on a point of law. The second purpose is the preservation, in cases where there is currently no appeal right, of the existing position.
110.Subsection (8) empowers the Lord Chancellor to specify who may or may not be treated as being a party to a case for the purposes of making an appeal from the First-tier Tribunal to the Upper Tribunal. In some cases it will be appropriate for a person who was neither the person making the original appeal to the First-tier Tribunal, nor the respondent to the original appeal, to make an onward appeal to the Upper Tribunal. At present, for instance, some rights of appeal under social security legislation to the Social Security and Child Support Commissioners are not limited to the claimant and the Secretary of State, but may include trades unions and claimants' spouses.
111.Existing provisions in respect of who may be a party to a case for the purposes of making an appeal from the First-tier to the Upper Tribunal are expected to be preserved at the point of transfer. The power under subsection (8) may also be used in the future as new appeal rights are introduced.
112.This power is subject to affirmative resolution procedure (see section 49).