Appeal Re-instatement following TS stating appellant wishes to withdraw appeal

Following incorrect notiifcation to appellant that they wanted to withdraw their appeal Tribunal Service have now passed request for re-instatement to Duty Judge.  TS mixed up the request of my client with another who did wish to withdraw.

Should a notifaction that it is to be considered be issued to appellant desiring re-instatement?

Which Regs/part of the bench book detail how a request for re-instatement should be approached?  Is it decided on the information already presented or is the appellant invited to comment further?

If the request to re-instate is refused what course of action is availalble

Thanks in advance

T.J.Lintern

Hi TJL,

A withdrawal should take place simply on receipt of the written request by the appellant. There is no option for the Tribunal Service but to withdraw an appeal when a written request is received- although if the request is made at a hearing the tribunal can if it thinks it fair and just refuse to allow the withdrawal to proceed.

The usual rule for reinstatement of a withdrawn appeal (and withdrawals) is r17 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008 No. 2685).

This is as follows:

Withdrawal

17.—(1) Subject to paragraph (2), a party may give notice of the withdrawal of its case, or any part of it—

(a) at any time before a hearing to consider the disposal of the proceedings (or, if the Tribunal disposes of the proceedings without a hearing, before that disposal), by sending or delivering to the Tribunal a written notice of withdrawal; or

(b) orally at a hearing.

(2) In the circumstances described in paragraph (3), a notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal.

(3) The circumstances referred to in paragraph (2) are where a party gives notice of withdrawal—

(a) under paragraph (1)(a) in a criminal injuries compensation case; or

(b) under paragraph (1)(b).

(4) A party who has withdrawn their case may apply to the Tribunal for the case to be reinstated.

(5) An application under paragraph (4) must be made in writing and be received by the Tribunal within 1 month after—

(a) the date on which the Tribunal received the notice under paragraph (1)(a); or

(b) the date of the hearing at which the case was withdrawn orally under paragraph (1)(b).

(6) The Tribunal must notify each party in writing of an withdrawal under this rule.

I don’t think however that in your case there has actually been a withdrawal (ie no notice was given under para (1)) and therefore can’t see how you actually need a “reinstatement”.

It is not entirely clear from the rule whether if a request for reinstatement is made in time (or time is extended to admit a request- under r.5(3)(a) as that if fair and just as set out in r.2) the tribunal can refuse the request. I suspect they could but struggle to think of a circumstance where it would be consistent with the overriding objective to do so.

I think you should simply write and explain that the appeal appears to have been marked as “withdrawn” despite no request having been made. Say that you think there is no power of the tribunal to withdraw an appeal unless a request has been made and you therefore want the appeal put back on the list. Explain that you don’t think the issue is really one where an application for reinstatement is needed as no withdrawal has taken place.

I think that you would probably have a right of appeal to the UT if they refused to reinstate it (as that would be a decision that disposes of the appeal and the way the caselaw is going all such decisions that are not explicitly listed in s.11 of the TCEA 2007 carry such a right). Even if that was wrong you would be able to JR the refusal to relist in the UT.

All the best.

Martin

Update to current situation - a set of appeal papers have been received but the issues which the tribunal are asked to consider do not include whether or not itis a valid appeal.  The whole notion of an appeal lapsing seems to have been ignored.