A New Tribunal System for Wales: white paper - Annex 3: Devolved Tribunals within the scope of the Tribunal Reform Project

The devolved tribunals falling within the scope of this project are as set out below:

Section 59 tribunals

The Welsh Tribunals as listed in Section 59(1) of the Wales Act 2017:

1. The Agricultural Land Tribunal for Wales
2. The Mental Health Review Tribunal for Wales
3. The Residential Property Tribunal for Wales
4. The Education Tribunal for Wales
5. The Registered Schools Inspectors Appeal Tribunal and the Registered Nursery Education Inspectors Appeal Tribunal
6. The Adjudication Panel for Wales
7. The Welsh Language Tribunal

Other devolved tribunals

The following tribunals are not “Welsh tribunals” listed in section 59 of the Wales Act 2017. They have no formal relationship with the President of Welsh Tribunals and are not administered by the Welsh Tribunals Unit.

1. The Valuation Tribunal for Wales
2. Independent appeal panels: school admission appeal panels; and school exclusion appeal panels

Agricultural tribunals were established by the Agriculture Act 1947. The Act did not originally provide for an Agricultural Land Tribunal for Wales (“the ALTW”), instead giving the Lord Chancellor the power to make orders establishing tribunals for particular areas within England and Wales. The Transfer of Tribunal Functions Order 2013 abolished agricultural land tribunals for areas in England, transferring their functions to the First-tier Tribunal. The order also provided for the continuance of an Agricultural Land Tribunal for Wales.

The tribunal hears both disputes between agricultural landlords and tenants and drainage disputes. In the 2021-2022 reporting period, the ALTW received 20 applications in total. As the tribunal’s work is heavily reliant on site visits, its hearings are conducted in hotels, town halls or council buildings in the locality of the land in question.

The ALTW can review its own decisions, either on its own initiative or on application by a party, should more evidence become available, or if the decision contains a clerical error. An appeal may also be made to the Upper Tribunal (Lands Chamber) on any point of law.

The President of the ALTW is appointed by the Lord Chancellor and must be a barrister or solicitor of at least 7 years’ experience. The chairperson of the panel must have a legal qualification and is accompanied by lay panel members who have knowledge and experience of farming, drainage and landowner matters in Wales.

Mental Health Review Tribunals were initially established on a regional basis under the Mental Health Act 1959. The Mental Health Review Tribunal for Wales (“the MHRTW”) was specifically provided for by the Mental Health Act 1983. The MHRTW hears applications by and in respect of persons detained, in a hospital in Wales, or a person residing in Wales who is subject to conditional community discharge or guardianship under the Mental Health Act 1983, as amended by the Mental Health Act 2007. In England, the Health Education and Social Care Chamber of the First-tier tribunal hears equivalent claims.

The MHRTW handles the largest volume of applications of all the devolved tribunals falling within section 59(1) of the Wales Act 2017, receiving 1,840 applications or referrals for a Tribunal hearing in 2021-2022. Due to the nature of the MHRTW’s work, most of its hearings take place in psychiatric hospitals. There is a right of appeal to the Upper Tribunal (Administrative Appeals Chamber) on any point of law arising from a decision made by the MHRTW.

The President of the MHRTW, who is the only salaried judge in the Welsh Tribunals, is responsible for the members and the decisions of the tribunal. There are invariably 3 tribunal members on the hearing panel: a legal member, a medical (psychiatric) member and a lay member. Members of the MHRTW are appointed by the Lord Chancellor, except for legal members who sit on the restricted patient panel. They are appointed by the Lord Chief Justice in consultation with the Lord Chancellor. The Lord Chief Justice has delegated the appointment function to the President of Welsh Tribunals.

The Residential Property Tribunal for Wales (“RPTW”) hears appeals relating to privately rented and leasehold property under a number of pieces of legislation. The RPTW is in fact an “umbrella” tribunal, comprising 3 different tribunals, each based in different pieces of underlying legislation: rent assessment committees, leasehold valuation tribunals and residential property tribunals. In England similar claims are heard within the First-tier tribunal (Property Chamber).

Because the RPTW is composed of 3 different tribunals, the provisions governing its appeals differ. All appeals go to the Upper Tribunal (Lands Chamber), but appeals from rent assessment committees are explicitly limited by primary legislation to appeals on a point of law.

Due to the nature of the RPTW’s workload, hearings are conducted in town/village halls or hotels in the locality of the disputed property. Some cases are heard in the tribunal’s office, at Cleppa Park in Newport, but these are rare. We are aware of one large case involving 30 to 40 participants that was heard in Cardiff County Court.

The Lord Chancellor appoints tribunal chairpersons, who are legally qualified. The Welsh Ministers then appoint a president and vice-president from among those chairpersons. All other members of the tribunal are appointed by the Welsh Ministers. Tribunal hearings are conducted by a legally qualified chairperson, a professional member, and in some cases, a lay member.

The Education Tribunal for Wales was established in 2003, by Section 333 (1ZA) of the Education Act 1996. At the time, it was called the Special Educational Needs Tribunal for Wales (SENTW) and governed by the Education Acts 1996 and 2002. Its name was changed with effect from September 2021 by the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (“the 2018 Act”).

The tribunal covers the whole of Wales. This includes children who live in England but receive their education in Wales. The Education Tribunal for Wales is responsible for hearing and deciding appeals against decisions made by local authorities and further education institutes about children and young people’s additional learning needs, or special educational needs. ETW is also responsible for dealing with claims of disability related discrimination in schools in Wales under section 116 of the Equality Act 2010. The Education Tribunal for Wales also hears disability discrimination claims. The English equivalent of the Education Tribunal for Wales is the First-tier Tribunal (Special Educational Needs and Disability) which is part of the Health, Education and Social Care Chamber of the First-tier Tribunal.

The 2018 Act changes the way pupils’ additional learning needs are met in schools and other education bodies. It will replace previous legislation about special educational needs slowly. Each year, a group of school years will move from the Special Educational Needs (SEN) system to the new Additional Learning Needs (ALN) system. In the first year, nursery age children were included into the system, and in the third year, young people from age 16-25 will be included. The SEN legislation only included children of compulsory school age.

Section 70 of the 2018 Act provides a list of all the occasions in which a child, young person or parent can appeal to the Tribunal. This section is being brought into force incrementally by age group. Section 72 of the 2018 Act makes provision as to the right to appeal decisions which impact upon detained persons.

The Education Tribunal for Wales received 151 applications in 2021-2022. Appeals may be made from the Education Tribunal for Wales to the Upper Tribunal (Administrative Appeals Chamber) on a point of law.

During 2021-2022 the Education Tribunal for Wales held 69 hearings: of those, 6 hearings were held on the basis of the papers only, 62 held as virtual hearings and one hearing was held in person. Where hearings are in-person, they are held in public buildings that are usually within one hour travelling distance from the child or young person’s home.

The Education Tribunal for Wales is led by a President, who is appointed by the Lord Chancellor and must be a barrister or solicitor of at least 7 years’ experience. Panels are made up of a chairperson, who must possess a legal qualification, and lay members who have experience in education or a related subject.

The School Inspections Act 1996 (which applied to both England and Wales) provided for a register of school inspectors. A similar register of nursery education inspectors was created by the School Standards and Framework Act 1998. An inspector who disagreed with a decision to remove them from or not include them on the register, or which imposed conditions on their registration, could apply to a tribunal. The Education Act 2005 (“the EA 2005”) abolished the requirement to keep registers of both school and nursery education inspectors in England.

The provisions in relation to school inspectors were kept for Wales by section 27 of the EA 2005. Inspectors of nurseries in Wales are also still able to apply to a tribunal constituted under section 27 of the EA 2005. The tribunals are referred to as two separate tribunals by the regulations which govern their procedure: the Registered Schools Inspectors Appeal Tribunal (“RSIAT”) and the Registered Nursery Education Inspectors Appeal Tribunal (“RNEIAT”).

It is understood that the tribunal has not been constituted, and no applications have been received since 2007/2008. Members of the Education Tribunal for Wales are, however, eligible to deal with any cases which arise in the jurisdiction of the RSIAT and the RNEIAT. RSIAT and RNEIAT cases could presumably, if the need arose, be heard in the same locations as used by the Education Tribunal for Wales.

A tribunal established under section 27 of the EA 2005 may review, set aside or vary its own decisions if: a decision is wrongly made as a result of an error on the part of the tribunal staff; a party fails to appear with reasonable cause; new evidence becomes available; or the interests of justice require. There is no appeal from the tribunal. The tribunal chair is appointed by the Lord Chief Justice in consultation with the Lord Chancellor. Two other tribunal members are appointed by the Welsh Ministers.

The Adjudication Panel for Wales (“the APW”) was established under Part III of the Local Government Act 2000, with its first members appointed in 2002.

It is responsible for determining alleged breaches of authorities’ codes of conduct by members of Welsh county, county borough and community councils, and fire and national park authorities.

The APW has 2 statutory functions. The first is to consider references made by the Public Services Ombudsman for Wales following the Ombudsman’s investigation into a breach of a statutory code of conduct by a local authority member. These references are heard by case or interim case tribunals. The APW also determines appeals from local authority standards committees, which are heard by appeals tribunals. The equivalent English tribunal, the Adjudication Panel for England, was abolished in 2010.

There is a right of appeal from case tribunals to the High Court. The APW has a small caseload and in the 2021-22 financial year it received 10 applications.

The APW is led by the Tribunal President, who is a legal member. The tribunal also has a Deputy President. A hearing panel is typically formed of 3 members; 2 lay members and the chairperson, who is a legal member. More than 1 legal member may sit on the panel; it is understood this approach has been taken for the purposes of training, or where there is a conflict of interest, or a shortage of lay members.

The Welsh Language Tribunal (“the WLT”) was established in 2015 under section 120 of the Welsh Language (Wales) Measure 2011 (“the Measure”). It hears appeals against the Welsh Language Commissioner’s decisions in relation to the Welsh Language Standards. There is no equivalent tribunal in England.

There are 3 types of appeal. (1) where the Commissioner notifies a person of a determination that the requirement to comply with a Standard is not unreasonable or disproportionate, the Tribunal can determine whether the requirement is unreasonable or disproportionate; (2) a person who has made a complaint to the Commissioner that another person has failed to comply with a Standard may appeal (a) against the Commissioner’s decision that the other person has not failed to comply with the Standard; or (b) against the Commissioner’s decision not to carry out an investigation, not to consider whether to carry out an investigation or to discontinue an investigation.

The tribunal received 3 applications in 2021-2022. One application was brought under Section 99(2) of the Measure; one application was brought under section 103 and one application identified section 95(2) and 95(4) in the same application.

The WLT can review, vary or revoke its own decisions. There is also a right of appeal to the High Court on any point of law arising from a decision made by the WLT. To date, no appeals from the WLT to the High Court have been brought.

The WLT’s President is responsible for organising the work of the members, and for making decisions in relation to appeals and complaints. The President is appointed by the Welsh Ministers and must either be a barrister or a solicitor with at least 10 years’ experience. Cases are heard by a legal member, and 2 lay members.

The history of valuation tribunals is a long one, and can be traced back to the Union Assessment Committees Act 1862. It is a history closely linked to local government, with valuation tribunals for each local authority.

The Valuation Tribunal for Wales (“the VTW”) is established by statute and is funded by the Welsh Government as an arms-length Welsh Government Sponsored Body. Although the money to run the Tribunal comes from Welsh Government, the VTW is not part of Welsh Government. It stands alone as an independent tribunal with its own staff, who are not civil servants. The staff are employed directly by the VTW itself. It deals with appeals in relation to Non-Domestic Rating Valuations, and Council Tax Valuations and Drainage Rates Valuations.

The VTW receives more applications than other devolved tribunals. In 2021-2022 the VTW received 4,808 applications and made 1,070 tribunal decisions.

Cases are heard by members, who are local unpaid volunteers. Formal qualifications are not required in order to be a member. The VTW seeks to appoint a range of individuals with different backgrounds, experiences and qualifications. All members are required to undertake regular training in valuation tribunal matters. There were 71 members in position as reported in the VTWs 2021-2022 Annual Report. Three members typically hear appeals, supported by a clerk. Clerks are employees of the VTW, who have detailed expertise and training in the underlying substance of the appeal. Their role is to advise on the relevant law and procedure. The VTW has 6 tribunal clerks and 2 senior tribunal clerks.

The VTW has the ability to review its own decisions. Further appeals are to the High Court (on a point of law, for Council Tax cases) or the Upper Tribunal (in relation to Non-Domestic Rating cases). The VTW hears cases locally across Wales.

The VTW conducts its own administration. It has its own chief executive. It is governed by a governing council, which includes the President of the VTW, 3 national representatives, and up to 3 members appointed by the Welsh Government.

School admission appeal panels hear appeals against decisions of admission authorities, who decide which school a child should attend. Exclusion appeal panels hear appeals against decisions by school governors, who have decided that a pupil should be excluded from a school. Both panels are usually administered by local authorities. In practice it is common for them to be run together, under the umbrella term of “independent appeal panel”.

While administering the panel is usually the responsibility of the local authority, the Welsh Government has published a statutory code on admission appeals (the “Admissions Appeals Code”). It has also published guidance on exclusion from schools and pupil referral units (the “Exclusion Guidance”).

Both school admission and exclusion appeal panels should be heard in neutral locations, and not in the admitting/excluding school itself. Local authority buildings are permissible locations, so long as the hearing is conducted in a building that is not associated with the education department or admissions or exclusion teams of the local authority.

Following temporary measures which were put in place during the COVID-19 pandemic which allowed for school admission appeals to be heard remotely, the Welsh Government noted the benefits for all parties in having the option of remote school admission appeals on a permanent footing. The Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2023 have recently come into force, which allow admission authorities the option to undertake school admission appeals remotely. The Welsh Government expects a large proportion of school admission appeals to be undertaken remotely going forward.

Section 94(5) of the School Standards and Framework Act 1998 provides that admission authorities are responsible for administering admission appeal panels. Local authorities are the admission authorities for community and voluntary controlled schools (the majority of schools in Wales), while governing bodies are the admission authorities for foundation and voluntary aided schools. In Wales these are often faith schools, run by the Roman Catholic Church or the Church in Wales.

In practice, governing bodies may decide to ask the local authority to arrange the appeal panels for which the governing body is responsible. The Admissions Appeals Code also envisages the possibility of collaboration between local authorities. In relation to panel members, the Admissions Appeals Code notes that “pooling resources with neighbouring admission authorities and local authorities can help ensure that the same members do not sit on panels for a school on a repeated basis”.

School admission appeal panels are made up 3 or 5 members. One of those members must have experience in education, or be the parent of a pupil registered at another school. Another must be a “lay” member: someone “without personal experience in the management of any school or the provision of education in any school”. Admissions authorities are required to re-advertise for lay members every 3 years.

The appeal panel can direct that a child be given a place at a particular school. That decision is binding on both the admissions authority and the governing body of a community or voluntary controlled school at which the panel determines the child should be placed.

School admission appeals are far more common than exclusion appeals.

School exclusion appeal panels are provided for by the Education Act 2002. They hear appeals against decisions of governing body discipline committees on permanent exclusions. They are arranged by the local authority. Composition of the panels is similar to that of admissions panels; a panel consists of 3 or 5 members, including lay members, members working in education or education management, and members who are or have been governors of maintained schools. A panel is able to order that:

1. the exclusion be upheld
2. the pupil be reinstated, or
3. the case is an exceptional one where reinstatement is not a practical way forward but would otherwise have been the appropriate direction.

There are fewer exclusion appeals than there are admission appeals.