Receipt of Response and hearing availability
If OSCR notifies the First-tier Tribunal that it intends to defend the appeal, it will provide a response to the First-tier Tribunal. When the First-tier Tribunal receives the response, it will write to you and OSCR asking you both to say when you will be available in a particular time frame to attend a hearing.
You will also be asked to say whether you will be calling any witnesses and how many you will be calling.
You will both be asked to provide a time estimate for the length of the hearing. The First-tier Tribunal will use this information to list the appeal for a hearing. The First-tier Tribunal aims to list the appeal within four months of receipt of the response from OSCR.
How the decision is made
The Rules of Procedure state that at least 14 days before the date fixed for an appeal hearing, the First-tier Tribunal will send you and OSCR a Notice of Hearing. In practice, the Notice of Hearing will be sent out much sooner to enable the parties to prepare for the hearing and to comply with Case Management Orders.
The Notice of Hearing will give the date, time and place of the hearing and who the First-tier Tribunal members will be, and will provide guidance and information on what will happen at a hearing.
The First-tier Tribunal may alter the date of the hearing but, except in exceptional circumstances, would give at least 14 days notice of this to the parties.
Case Management Orders
When the First-tier Tribunal sends you and OSCR the Notice of Hearing, it will also issue several Case Managements Orders, which both you and OSCR must follow. These Case Management Orders are an essential part of the overriding objective and are intended to ensure that the parties are ready and properly prepared for the hearing.
They will contain an action list and a timetable for completion of those actions. The key stages/actions are:
- Exchanging a list of documents on which you, or OSCR, intend to rely, and requiring each of you to provide copies if requested to do so
- Preparing a joint hearing bundle. This will normally be OSCR’S responsibility
- Exchanging witness statements
- Lodging the hearing bundle and the witness statements at the First-tier Tribunal in advance of the hearing
At any stage of the process, the First-tier Tribunal may direct either party to provide further information or to do anything else to assist the First-tier Tribunal in reaching its decision.
During the course of the appeal process you, or OSCR, may need to make an application to the First-tier Tribunal asking it to make an order. For example, this might be to vary the timetable for the Case Management Orders, to ask for the hearing to be adjourned, or to ask someone to provide further information or documents.
If you need to make an application, it must be in writing. You must state clearly what you want, why you want it, when you want it (as appropriate) and how it furthers the overriding objective. In most instances, the First-tier Tribunal will expect you to ask the other side first for what you want and, if they do not co-operate, you should then apply for an order from the First-tier Tribunal. Typically, this will relate to requests for further information or documents from the other side.
When you make an application to the First-tier Tribunal, you must copy it to the other side and indicate to the First-tier Tribunal that this has been done. If you do not do that, the First-tier Tribunal will not consider your application.
If the other party opposes your application, the First-tier Tribunal will either arrange a hearing to deal with the application, or it may decide the application based on written representations.
Such an application must be made to the First-tier Tribunal in writing at least 7 days before the date on which the hearing is to take place.
Attending the hearing
The Notice of Hearing will also give you and OSCR a date by which you, or OSCR, must tell the First-tier Tribunal whether or not they will attend or be represented at the hearing.
If either party is not going to attend the hearing or be represented, the First-tier Tribunal will let them know a date by which they can send written statements to be considered at the hearing.
If both parties say they will not attend nor be represented, the First-tier Tribunal will decide the appeal after the date for receipt of written statements.
First-tier Tribunal decision
The First-tier Tribunal will give its decision on the appeal at the end of the hearing or within 21 days of it. The decision will be published online in the Register of appeals.
Reviewing the Tribunal's decision
You may ask the First-tier Tribunal to, or the First-tier Tribunal may on its own initiative, review the decision. A review will be carried out where it is necessary and in the interests of justice to do so.
If you want the First-tier Tribunal to review the decision you must apply in writing and send a copy of your application to the other party/parties. You must make your application within 14 days of the date on which the decision was made or within 14 days of the date that the written reasons was sent to you. You must also explain why a review of the decision is necessary.
The First-tier Tribunal will refuse your application if it is wholly without merit.
If the First-tier Tribunal believes your application has merit it will notify the parties in writing inviting them to provide their views on the application and whether it can be determined without a hearing. You will be given a time limit within which to respond. The First-tier Tribunal may, at its discretion, give the parties its provisional views on the application.
If the First-tier Tribunal believes your application has merit, it will review the decision at a hearing unless it considers, having regard to any responses, that a hearing is not necessary in the interests of justice.
Where practicable, the review will be undertaken by one or more of the members of the First-tier Tribunal who made the decision to which the review relates.
If the First-tier Tribunal decides to review the decision on its own initiative, it will tell the parties of the reasons why the decision is being reviewed and it will invite the parties to provide their views and whether the matter can be determined without a hearing.
Any review of a decision does not have any impact on the time limit for appealing the decision. If you choose to appeal the Tribunal’s decision, you must still do so within the specified time limits.
Appealing the Tribunal's decision
If you wish to appeal the decision, you must make a written application to the First-tier Tribunal for permission to appeal. The application for permission to appeal must:
- identify the decision of the First-tier Tribunal to which it relates
- identify the alleged point or points of law which you wish to appeal
- state the result you are seeking
Permission to appeal must be sought within 30 days (ie the application for permission to appeal) and must be received within 30 days of:
- the decision being appealed against being sent to the Appellant; or
- if later the statement of reasons was sent to the Appellant
If a decision was given orally at a hearing, the application for permission to appeal must be received within 30 days of:
the date on which written reasons were sent to the parties if:
- written reasons were requested at the hearing (or were requested in writing within 14 days, beginning with the day after the last day of the hearing); or
- the First-tier Tribunal or the Upper Tribunal, as appropriate, undertook at the hearing to provide written reasons; or
- within 30 days of the date of the oral decision, if:
- written reasons were not requested at the hearing (or were not requested in writing within 14 days beginning with the day after the last date of the hearing); or
- the First-tier Tribunal or the Upper Tribunal, as appropriate, did not undertake at the hearing to provide written reasons
The First-tier Tribunal has the power to extend the time for requesting permission to appeal on “cause shown”.