Upper Tribunal Clarifies 28-Day Reinstatement Rule in LW v Broughton Hall Case

Citation: [2023] UKUT 301 (AAC)
Judgment on

Introduction

The case LW v Proprietor of Broughton Hall Catholic High School [2023] UKUT 301 (AAC) provides insight into tribunal procedure, particularly the application of rules regarding the striking out of cases for non-compliance with directions and subsequent reinstatement applications. This article will analyze the case law and elucidate the legal principles applied within the context of the Upper Tribunal’s decision.

Key Facts

The appellant, LW, was directed by the First-tier Tribunal (FtT) to file a completed attendance form by a specific date. Failure to comply led to the issuance of an order, which threatened to strike out the claim if the direction was not followed. Non-compliance resulted in the claim being struck out, but the appellant contended she did not receive the order. Subsequently, an attendance form was submitted, and a Request for Change form was completed to request the reinstatement of the claim. Judge McCarthy of the FtT refused the reinstatement on grounds of exceeding the 28-day statutory period for such applications, which was later contested in the Upper Tribunal.

The legal principles governing this case primarily derive from the First-tier Tribunal (Health Education and Social Care Chamber) Rules as follows:

  1. Rule 8(2) stipulates that non-compliance with a directive that includes a warning of automatic strike-out results in the said outcome.

  2. Rule 8(6) affords a party the right to seek reinstatement if their claim is struck out.

  3. Rule 8(7) is pivotal, as it requires that applications for reinstatement must be received within 28 days after the Tribunal sends notification of the striking out.

  4. Rule 2 outlines the overriding objective which mandates the Tribunal to handle cases fairly and justly, with an emphasis on the proportionality of the case handling, participation of parties, avoidance of unnecessary formality, use of expertise, and the prevention of delays.

The Upper Tribunal Judge Ward’s decision highlighted a misapplication of Rule 8 by Judge McCarthy. Specifically, the 28-day period was erroneously considered to have commenced from the point of non-compliance rather than the date at which the Tribunal sent notification of the striking out, which differs conceptually and chronologically.

Outcomes

The Upper Tribunal’s decision involved:

  • Allowing the appeal by LW because the 28-day period was found to be misinterpreted by the FtT.
  • Setting aside the previous decision.
  • Ordering the reinstatement application to be considered by the FtT on its merits.

Crucial to this outcome was the recognition that the “notification of the striking out” referenced in Rule 8(7) should be interpreted as the communication actually informing the party that a striking out has already occurred.

Conclusion

The Upper Tribunal in LW v Proprietor of Broughton Hall Catholic High School [2023] UKUT 301 (AAC) has clarified a significant aspect of tribunal procedure concerning automatic strike-out and reinstatement. It reiterates the necessity of precise adherence to and interpretation of tribunal rules and underscores the importance of the overriding objective in ensuring that justice is served fairly and justly. The case serves as a particularly valuable reference for reinforcing the importance of proper notification and the adherence to time frames set by tribunal rules. This decision will serve as guidance for both tribunal participants and judges in future proceedings where procedural compliance is at issue.