A New Tribunal System for Wales: white paper - Chapter 4: Jurisdictions transferring into the tribunal system

We propose:

• the jurisdictions of the Welsh Tribunals, together with those of the Valuation Tribunal for Wales and school exclusion appeal panels are transferred to the First-tier Tribunal for Wales and organised into chambers as shown in Figure 1
• the further transfer of jurisdictions, be they existing ones or ones created by future legislation, should be considered on a case-by-case basis, and
• the Appeal Tribunal for Wales should be organised into chambers as appropriate and as appeal jurisdictions are transferred to it and the volume of appeal work develops.

51. This chapter sets out which jurisdictions of the devolved tribunals should transfer to the new tribunal system on its establishment. In chapter 2 we identified “the devolved tribunals” we consider are in scope of our proposals to create a unified tribunal system, and in chapter 3 we set out the proposed structure of that unified system comprising of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales.

52. The transfer of the jurisdictions of individual devolved tribunals to the new First-tier Tribunal for Wales will need to be carefully managed. First, amalgamation of existing tribunals into the new tribunal must avoid disruption to the operation and business of those tribunals as they transfer. Second, the way in which the new tribunal is organised must reflect the specialisation of each jurisdiction and place the interests of tribunal users, and their access to justice, at the forefront of reform.

The Welsh Tribunals

53. The Law Commission recommends that the Welsh Tribunals defined by section 59 of the Wales Act 2017 (Chapter 2: Scope of our reforms, paragraphs 22 and 23) should be consolidated into a single unified tribunal. We have set out why reform is needed (Chapter 1: Introduction, paragraphs 12 to 14) and our proposals for a unified and coherent tribunal system for Wales are informed by a significant body of work (Chapter 1: Introduction, paragraph 10). As long ago as 2010, the Administrative Justice and Tribunals Council (“the AJTC”) Welsh Committee’s recommendations for reform in relation to tribunals operating in Wales were “…designed to promote a more integrated, user-focused system” (Administrative Justice and Tribunals Council Welsh Committee,2010. Review of Tribunals Operating in Wales, page 3). We agree with the Law Commission that the Welsh Tribunals should be transferred into the First-tier Tribunal for Wales.

The Valuation Tribunal for Wales

54. The Law Commission concluded that, in the absence of practical issues and obstacles indicating a contrary course of action, the jurisdiction of the Valuation Tribunal for Wales (“the VTW”) should be transferred to the First-tier Tribunal for Wales.

55. We agree with the Law Commission that the VTW should be absorbed into the new tribunal system. The nature of its jurisdiction is not such that it is markedly different to the Welsh Tribunals and does not warrant it continuing as a separate standalone tribunal.

56. There are, however, practical issues to aligning the VTW with the Welsh Tribunals in the First-tier Tribunal for Wales that will need to be overcome. The model for adjudicating on disputes, for example, is different in the VTW compared to the Welsh Tribunals. The VTW panels are structured in a similar way to the lay magistracy, and comprise lay members advised by a specialist clerk. Moreover, those lay members are volunteers and are not remunerated, unlike members of the Welsh Tribunals who are almost universally fee paid (the Ministry of Justice Judicial Daily Sitting Fees - effective 1 April 2022 - and Judicial Daily Sitting Fees for Sitting in Retirement Posts - effective 1 April 2022 - include rates for members of the Welsh Tribunals). In addition, any liabilities that may arise from the VTW transferring to the new tribunal system will need to be assessed (a process which we have begun), together with the implications for staff of proposals in this white paper to create a single arm's-length body to administer the new tribunal system.

57. We do not consider these practical issues to be insurmountable. It is feasible that, as the Law Commission commented, the VTW’s current model for adjudicating on disputes could be carried into the First-tier Tribunal on its establishment and the need for reform of it could be considered in time as part of the ongoing development of tribunals justice in Wales. But we will need to work through the issues to determine if any negate the proposed transfer of the VTW into the new tribunal system or suggest it might better happen at a later stage.

58. If the jurisdiction of the VTW was not transferred to the new tribunal system on its establishment, and ahead of its future transfer into the structure, the Law Commission recommended it should nonetheless be subject to the supervision of the President of Welsh Tribunals who we propose will have new statutory duties and functions. This will strengthen judicial independence, increase cohesion with the broader devolved tribunal system and represent the tribunal’s interests to the Senedd. We agree with this. In this scenario, the President’s relationship with the Governing Council of the Valuation Tribunal would have to be considered.

School exclusion appeal panels

59. The Law Commission recommended the jurisdiction of school exclusion appeal panels should be transferred to the First-tier Tribunal for Wales. This followed a similar recommendation from the Committee for Administrative Justice and Tribunals Wales (“the CAJTW”), which, in its 2016 report on the administrative justice landscape in Wales, recommended (Administrative justice: a cornerstone of social justice in Wales, recommendation 24, page 12) Welsh Government should explore the merits of extending the jurisdiction of the then Special Educational Needs Tribunal for Wales, now the Education Tribunal for Wales, to be a national tribunal for school admissions and exclusion appeals.

60. The Commission on Justice in Wales ("the Thomas Commission") also commented:

"We are concerned that school admissions and exclusions appeals panels operate without any kind of judicial scrutiny save in those very rare cases in which an exclusion leads to an application for judicial review. The role of judges in determining disputes relating to the education of pupils has steadily increased over time as functions of public bodies have increased. We consider that a thorough appraisal of the operation of local authority appeal panels and oversight by the President of Welsh Tribunals of their decision-making processes is required. (Justice in Wales for the people of Wales, paragraph 6.47, page 280)"

61. We agree with these recommendations and propose that the jurisdiction of school exclusion appeal panels should be transferred to the First-tier Tribunal for Wales and adjudicated on as part of Wales’ independent tribunal system. We do not consider that those involved in the exclusion of a child from a school approach those decisions lightly, but the consequences of school exclusion for a child and for a school are of the highest significance. It is essential that decision-making is consistent and unquestionably independent.

School admission appeal panels

62. The Law Commission concluded that, at least for the time being, school admission appeal panels, as described in Annex 3, should remain outside of the new unified tribunal system and administered by admission authorities.

63. In reaching this conclusion, the Law Commission highlighted local knowledge and seasonal peaks in case load as the determining factors. They also acknowledged, however, that this approach will preserve in the system a sub-optimal position as regards independence for school admission appeals that is a key design feature of other tribunals. In part, and to militate the implications of this position, the Law Commission recommended that appeals from school admission appeals panels should be available on a point of law to the First-tier Tribunal for Wales.

64. We have referred to the body of work that has recommended reform of school admission appeal panels and school exclusion appeal panels (see paragraph 60 of this chapter of the white paper). We also note the logistical complexities identified by the Law Commission as regards the transfer of the jurisdiction of school admission appeal panels.

65. Our conclusion is that in the long run the jurisdiction of school admission appeal panels should ultimately be incorporated into the new tribunal system. The structure we propose for our tribunal system is intended to be flexible enough to accommodate the jurisdiction of school admission appeal panels. However, it is important on practical grounds that the accumulation of new jurisdictions within the First-Tier Tribunal is phased and that there is a degree of prioritisation, based on the importance of the subject matter and the logistical complexity among other factors. We therefore agree with the Law Commission’s recommendation that school admission appeal panels continue to be administered by admission authorities at this time, but that there should be a right of appeal to the First-tier Tribunal for Wales on points of law.

66. In chapter 3 we proposed the work of the 2 new tribunals should be organised into chambers. The chamber structure will accommodate the jurisdictions transferring into the new tribunal system. They therefore need to be carefully constructed to accommodate the specialised nature of each jurisdiction. Jurisdictions should be combined in single chambers where there is synergy and where it is appropriate practically and operationally to do so.

67. Our proposed structure for the new tribunal system is designed with sufficient flexibility to accommodate the transfer in of jurisdictions, the creation of new chambers and the allocation of the work between chambers. It is our intention, working with the President of Welsh Tribunals and the President’s senior judicial colleagues in the new tribunal system to keep the organisation of the new tribunal system under review. This means that there will be scope to add existing jurisdictions at a later stage if not transferred on the establishment of the new system, to create new chambers and to alter the allocation of work between chambers.

68. In addition, the flexibility designed into the new tribunal system to accommodate jurisdictions will, we propose, be capable of absorbing jurisdictions in the Welsh justice system that may arise in the future. The Commission on the UK’s Future (commonly referred to as the Brown Commission) established by the UK Labour Party has, for example, recommended the devolution of youth justice to Wales (A New Britain: Renewing our Democracy and Rebuilding our Economy. See “Enhancing Wales’ powers of self-government” and recommendation 24 pages 112 -113). A tribunal setting could in many ways be better than a court setting for youth justice matters, because tribunals are a more informal approach to adjudicating on matters compared to courts. We therefore propose to continue to consider the devolution of youth justice and the fit of it with the new tribunal system, for example dovetailing youth justice with a broader range of issues concerning the child including welfare, health and education.

69. We propose the initial chamber structure for the First-tier Tribunal for Wales should be set out in legislation establishing the new tribunal system. The initial chamber structure we propose is set out in Figure 1, below.

Initial chamber structure for the First-tier Tribunal for Wales

• ALT and RPTW moves to Property
• APW moves to Standards
• MHRTW moves to Mental Health
• WLT moves to Welsh Language
• RSIAT, RNEIAT, ETW, School exclusion appeal panels, Appeals on points of law from school admission appeal panels move to Education
• VTW moves to Taxation
• No existing jurisdictions proposed for transfer but propose creating a catchall chamber to be already established and capable of absorbing other jurisdictions that do not align with the other chambers, e.g. data protection and Freedom of Information Act 2000 matters - moves to General Regulatory Chamber.

70. One of the key principles of the new tribunal system for Wales is that it will be able to adapt to changing requirements without the need for further primary legislation. Whilst we propose the structure for the new tribunal system on its establishment will be put in place by the legislation creating the new system, the nature and timing of future change to the system will be accommodated by the structure we have set out in chapter 3.

71. The Thomas Commission commented that the Welsh tribunals have been under-used as a means of enforcing Welsh legislation (Justice in Wales for the people of Wales, paragraph 16, page 12). In the commission’s view:

Welsh tribunals should be used for dispute resolution relating to future Welsh legislation. There has been a tendency in the legislation passed by the Assembly for it to specify that dispute resolution should take place in the County Court or in the non-devolved courts and tribunals. We regard this as anomalous when specialist Welsh tribunals exist that have the competence and capability to determine disputes. (Justice in Wales for the people of Wales, paragraph 6.59.2, page 284)

72. We propose that our guiding principle is that disputes deriving from Welsh law should as a general rule, be heard in a Welsh judicial institution, unless there are circumstances that dictate otherwise identified by the full and detailed analysis of each proposal.

73. In addition to jurisdictions of the devolved tribunals we have identified in Chapter 2, there are numerous appeal routes to the courts and tribunals of England and Wales, for example to the UK First-tier Tribunal. In accordance with our guiding principle, we consider that such routes of appeal should be gradually drawn into the new system in Wales. For example, appeals relating to devolved taxes (land transaction tax and landfill disposals tax) are made to and heard by the UK First-tier Tribunal (Tax Chamber) and the UK Upper Tribunal (Tax and Chancery Chamber) before progressing to the relevant Appeal Court. We intend in time to examine transferring these jurisdictions into the First-tier Tribunal for Wales and Appeal Tribunal for Wales, possibly the Taxation Chamber of the First-tier Tribunal for Wales, as part of the establishment of the unified tribunal system in Wales. Cases currently coming before the UK tribunals are limited in number and we therefore propose to consider this issue in due course. Considerations in relation to the route of appeal for any future Welsh taxes will be on a case-by-case basis.

74. The power we propose for the Welsh Minsters with the concurrence of the President of Welsh Tribunals to organise the work of the First-tier Tribunal for Wales and the Appeal Tribunal for Wales into chambers is the mechanism by which the new tribunal system can be adapted to absorb additional routes of appeal over time. Initially, the workload of the Appeal Tribunal for Wales may be such as not to need distinct chambers.

The Appeal Tribunal for Wales

75. A key component of the unified and coherent structure of the proposed new tribunal system is the Appeal Tribunal for Wales, the first Welsh appellate body in Welsh legal history. We see the Appeal Tribunal for Wales as a vehicle for developing the devolved law of Wales in a coherent and uniquely Welsh way.

76. Current routes of appeal from the devolved tribunals have developed piecemeal over time and are very much the product of the historical development of the devolved tribunals rather than the product of a coherent approach to Wales’ system of devolved tribunals where routes of appeal are an integral part. In his response to the Law Commission consultation, Sir Wyn Williams, then President of Welsh Tribunals commented:

… there is no reasonable justification for appeals from some (a minority) tribunals going to the High Court whereas appeals from the remaining tribunals (the majority) go the Upper Tribunal of England and Wales. The current routes of appeal are, in my view, the result of historical developments undertaken on a piecemeal basis and without reference to the overarching objective of having in place a coherent tribunal structure of which routes of appeal are an integral part. (Devolved Tribunals in Wales Report, paragraph 4.12, page 60)

77. The Law Commission recommended the creation of an Appeal Tribunal for Wales (see Annex 2, Law Commission recommendations 11) and for jurisdictions to be added to the Appeal Tribunal over time. The Law Commission also recommended the mechanism for this should be a power for the Welsh Ministers by statutory instrument to establish chambers of the Appeal Tribunal and to transfer appellate jurisdictions to it over time (see Annex 2, Law Commission recommendations 12).

78. But the Law Commission also recognised that the proper location of appeals from devolved tribunals in Wales was one of the most difficult topics it tackled in its review. Referring to the consultation it ran to inform its recommendations, the Law Commission said:

Several of the existing leaders of the section 59 tribunals have responded to the consultation explaining that their current appeal route works well for their tribunal, and should be preserved. This desire to preserve current appeal routes must however be balanced against a need to make sure that the system is coherent and works well as a whole; that it is capable of evolving and accommodating new appeal routes. (Devolved Tribunals in Wales Report, paragraph 4.47, page 69)

79. Views on preserving current routes of onward appeal have also been relayed to us in the discussions we have held with the Judicial Leads of the Welsh Tribunals. These are clearly well considered views and they are made by judicial leaders of considerable experience.

80. The Law Commission’s view was that the introduction of a unified First-tier Tribunal creates a strong impetus for a single route of appeal to the Appeal Tribunal for Wales. The Law Commission said:

This project undoubtedly presents an opportunity to create a system that is simple, intuitive and coherent, whereas building in different appeal routes from the outset risks compromising that objective. (Devolved Tribunals in Wales Report, paragraph 4.47, page 69)

81. Whilst the Law Commission recommends legislating to create the Appeal Tribunal for Wales, it comments we should do so:

…with a view to bringing those provisions into force and establishing the tribunal when the Welsh Government has a clearer view of how the tribunal system is likely to develop. The legislation should include powers to transfer jurisdictions to the Appeal Tribunal… The Welsh Government would then be able to bring the Appeal Tribunal for Wales into existence and populate it when the time is ripe.

82. We agree with the Law Commission’s recommendation to create an Appeal Tribunal for Wales and to the manner in which jurisdictions should be transferred to the Appeal Tribunal for Wales and organised into chambers. Our aspiration if possible would be for the Appeal Tribunal to be operational in at least some jurisdictions from the same point at which the First-tier Tribunal for Wales comes into existence.

83. Notwithstanding the eminence of those setting out a contrary view, we are not convinced that it will ultimately be sensible to have different appeal routes from different chambers of the First-tier Tribunal. This has the potential to undermine the coherence and accessibility of the system, and the standing and credibility of the new institutions, as well as the attractiveness of roles within it. In our view, the Appeal Tribunal for Wales should be the appellate body for appeals from the First-tier Tribunal for Wales unless there are exceptional reasons requiring different provision to be made.

84. However, it is of course essential that the Appeal Tribunal for Wales does not take on functions for which the judiciary are not confident it is appropriately prepared. We therefore propose that the power of the Welsh Ministers to transfer jurisdictions to the Appeal Tribunal for Wales by subordinate legislation should be with the concurrence of the President of Welsh Tribunals.