Jurisdiction
The First-tier Tribunal and the Upper Tribunal Judge who initially considered the papers relied on rule 8(2) of The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, which provides as follows:
8(2) The Tribunal must strike out the whole or part of the proceedings if the Tribunal –
(a) does not have jurisdiction in relation to the proceedings or that part of them …
However, reliance on that provision begs the question of whether the First-tier Tribunal does in fact have jurisdiction. Paragraph 2 of the 2001 scheme appointed persons who were appointed as adjudicators under section 5 of the Criminal Injuries Compensation Act 1995 to be members of the Criminal Injuries Compensation Panel (“the Panel”). Paragraphs 61 to 65 of the 2001 scheme conferred rights of appeal and paragraph 61 provided as follows:
An applicant who is dissatisfied with a decision taken on a review … may appeal against the decision by giving written notice of appeal to the Panel …
There then followed many procedural provisions, time limits, a requirement for reasons and so on. However, the actual substantive right of appeal is unlimited in that it is not restricted to errors of fact, errors of law, or particular grounds, other than that the applicant “is dissatisfied”.
By virtue of section 30(1)(a) of and Part 2 Schedule 6 to the Tribunals, Courts and Enforcement Act 2007, and paragraph 3(1) of and Table 1 of Schedule 1 to The Transfer of Tribunal Functions Order 2008, the functions of a adjudicator (and thereby of the panel) were transferred to the First-tier Tribunal with effect from 3 rd November 2008. No further restriction (in the sense that I have been using the word) of the right to appeal against a decision of the authority was introduced either by those measures or by The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008.
Thus it is clear on first principles (at least to me) that the First-tier Tribunal did have jurisdiction to decide the appeal to it and that it confused the concepts of (a) lack of jurisdiction to hear an appeal and (b) hearing an appeal that it thought was bound to fail. The undated submissions of the First-tier Tribunal, which accompany the Tribunals Service letter of 3 rd March 2010, show that it persists in this confusion.
This issue has been the subject of much judicial and academic comment. I just refer to two of the better known dicta in the House of Lords. In R v Nat Bell Liquors Ltd [1922] AC 128 at 151, Lord Sumner said of a magistrate:
“If his jurisdiction to entertain the charge is not open to impeachment, his subsequent error, however grave, is a wrong exercise of jurisdiction which he has, and not a usurpation of jurisdiction which he has not”.
In R v Governor of Brixton Prison ex parte Armah [1968] AC 192 at 234 Lord Reid said,
“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision. If he has jurisdiction to go right then he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.”
The point is that whatever decision it though it should or was obliged to reach, the First-tier Tribunal here had jurisdiction to do it or not to do it. It had jurisdiction to “enter on the inquiry”. The applicant exercised a right of appeal, the tribunal was seized of the matter, and it should have made a proper decision. To do as it did was to run the risk of denying the claimant a hearing on the facts and merits of her appeal.
The First-tier Tribunal would only be without jurisdiction to consider an appeal when no right of appeal to it had been created in respect of a particular matter or where the exercise of such a right was subject to a condition precedent which had not been satisfied.
However, for the reasons explained above, I refuse permission in this particular application.
H. Levenson
Judge of the Upper Tribunal
th May 2010