The Transfer of Tribunal Functions Order 2010

EXPLANATORY NOTE

(This note is not part of the Order)

This Order is made under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Part 1 of the 2007 Act creates a new two tier tribunal structure; the First-tier Tribunal and the Upper Tribunal are established under section 3 of the 2007 Act. Order making powers are provided under Part 1 of the 2007 Act to enable existing tribunals to be transferred into the new structure. This Order effects the transfer into the new structure of various tribunal functions.

Transfer of functions and abolition of tribunals

Article 2 transfers the functions of various tribunals to the First-tier Tribunal and Upper Tribunal. Article 3 abolishes each of the tribunals whose functions are transferred, with the exception of the Pensions Regulator Tribunal. The functions of the Pensions Regulator Tribunal in Northern Ireland are not transferred, therefore the Pensions Regulator Tribunal is not abolished.

Transfer of members of tribunals

Article 4 provides for members of the tribunals whose functions are transferred to hold judicial offices in the First-tier Tribunal and Upper Tribunal. Schedule 1 sets out which tribunal members hold which offices in the new tribunals.

Consequential provisions

Paragraphs (1) to (3) of article 5 bring Schedules 2 to 4 into effect. Schedule 2 contains consequential amendments to primary legislation, Schedule 3 contains consequential amendments to secondary legislation, and Schedule 4 contains consequential repeals and revocations of legislation.

The majority of these amendments, repeals and revocations are made in consequence of the transfers of tribunal functions and members, and abolition of tribunals, effected by articles 2, 3 and 4. However paragraphs 11 and 73 of Schedule 2 and paragraph 147 of Schedule 3 relate to the transfer of the Lands Tribunal into the Upper Tribunal that was effected by the Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009 (S.I. 2009/1307).

Transitional and saving provisions

Paragraph 4 of article 5 brings Schedule 5 into effect. Schedule 5 makes transitional and saving provisions for the treatment of cases which would previously have been dealt with by the tribunals, the functions of which have been transferred, and onward appeals from those tribunals, following the coming into force of this Order.

The Schedule provides for cases which have been started to be transferred to the First-tier Tribunal or Upper Tribunal; new proceedings will be started in the First-tier Tribunal or Upper Tribunal. In transferred cases the following provisions apply:

• a hearing which has already been commenced but not completed will need to be completed in the First-tier Tribunal or Upper Tribunal but comprised of the same members;

• directions and orders made prior to this Order coming into force will continue in force as if they were directions or orders of the First-tier Tribunal or Upper Tribunal;

• Tribunal Procedure Rules applicable to the First-tier Tribunal or Upper Tribunal will apply to all cases from the date of transfer, but the Tribunals will be able to disapply rules or apply the rules which applied to a case prior to the transfer, to ensure that proceedings are dealt with fairly;

• time limits which begin to run before this Order comes into force continue to apply after the Order comes into force; and

• the First-tier Tribunal or Upper Tribunal will only be able to make a costs order if and to the extent that the tribunal dealing with the case prior to transfer could have made such an order.

Appeals against the decisions of the tribunals, the functions of which have been transferred, are to be treated as appeals against the decisions of the First-tier Tribunal or Upper Tribunal, if the appeal right has not been exercised before this Order comes into force and the time for doing so has not expired.

A Regulatory Impact Assessment was prepared for the Tribunals, Courts and Enforcement Act 2007. This can be found at:

http://www.justice.gov.uk/publications/tribunalscourtsandenforcementact.htm