All change at the Adjudication Panel

Earlier this year the Adjudication Panel for England became the First-tier Tribunal (Local Government Standards in England). The move represents much more than a name change, writes Claire Lefort, with a new emphasis on parties behaving responsibly.

For several years, the adjudication panel for England (APE) operated without any formal rules or regulations. However that has all changed since the transfer of work into the General Regulatory Chamber. The transfer took place on 18 January 2010, and the APE is now known as the First-tier Tribunal (Local Government Standards in England).

The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 and The Tribunal Procedure (Amendment) Rules 2010 (the Rules) govern the procedures applicable to cases referred to the Tribunal. The President of the APE transferred as a Judge and is also a Deputy Judge in the Upper Tribunal. Members of the APE transferred as Members.

The Rules contain four parts. Part 1 provides a general introduction of the Rules and includes the objectives of the Rules and the parties' obligation to co-operate with the Tribunal. Part 2 contains general powers and provisions including the Tribunal's case management powers, the giving of directions, the power to strike out a party's case, the service of documents and rules about representatives, evidence, submissions, witnesses and costs. Part 3 contains provisions relating to starting proceedings and procedure up to and including the making and notification of Tribunal decisions and Part 4 deals with correcting, setting aside, reviewing and appealing Tribunal decisions.

The overriding objective of the Rules is to enable the Tribunal to deal with cases fairly and justly. This includes proportionality in terms of avoiding unnecessary formality and seeking flexibility in the proceedings, ensuring that the parties are able to participate fully in the proceedings, using any special expertise of the Tribunal effectively and avoiding delay. The Tribunal is expected to apply the overriding objective when it exercises any power under the Rules and expects the parties to help the Tribunal to further the overriding objective.

Subject to any provision in the Rules, the Tribunal is given the power to regulate its own procedure which is set out in the "Guidance on a reference by an Ethical Standards Officer (ESO) or Standards Committee (SC)" which is available on the Tribunal's website. The Guidance provides that a party may be barred from participating in the proceedings if it does not comply with a direction issued by the Tribunal. In addition, the Guidance provides that either party may withdraw its case orally at the hearing and a party who is not represented at the hearing may provide further submissions in writing three working days before the hearing.

The actual procedure of the hearing is that the ESO/SC will first make submissions and produce evidence and any witnesses may be questioned by the subject member. The subject member will then be invited to present their case and the ESO/SC will be given the opportunity to question any witnesses which the subject member may call. The Tribunal will adjourn the hearing so as to decide the facts and then return to announce and hear submissions as to whether there is a breach of the Code. The subject member will be asked to present their case and the ESO/SC is given the opportunity to respond, and then the subject member can give closing submissions.

If a breach is found, the Tribunal will hear submissions from each party as to the appropriate action to take. The Guidance allows new evidence to be introduced provided that the Tribunal is satisfied it is just and reasonable to do so. There will be an opportunity for the ESO/SC to make submissions as to whether permission to introduce the new evidence should be given and also have the opportunity to question the evidence. Also the ESO/SC is given the opportunity to rebut the evidence.

The Guidance refers to the Tribunal's new power to award costs against a party who has acted unreasonably in bringing, defending or conducting the proceedings. This power is conferred on the Tribunal by virtue of the Rules which also allow the Tribunal to award wasted costs as a result of negligent, improper or unreasonable act of a legal or other representative. Such costs can be awarded by the Tribunal or on application in writing and supported by a schedule of costs and expertise.

It will be interesting to see how many cases result in costs awards. As costs can be awarded in respect of unreasonably bringing proceedings, the ESO/ SC must ensure that the investigation is robust, that proper evidence is provided and that the case can be defended supported at the Tribunal and is of good quality to be presented. Also, SCs should consider carefully the Guidance issued by the Tribunal as to whether a case is appropriate for referral to the Tribunal. In some cases, the legal costs of a subject member have risen to approximately £30,000 in appointing legal representation to defend them which could be a substantial strain on the Council's budget.

An important power of the Tribunal conferred by the Rules is the ability to summon witnesses to answer questions or produce documents. This can either be on its own initiative or either party may apply for a witness to be summoned. This will avoid the situation of key witnesses being absent from the proceedings and assist the Tribunal in resolving disputes. It also ensures that hearings are as fair as possible to the parties by ensuring attendance of necessary witnesses.

Any party may ask the Tribunal, by making a written application within 28 days of notice of the decision being given to the party, to set aside its decision if:

• a relevant document in the case has not been sent to or received in time by a party or their representative; or
• a relevant document was not sent to the Tribunal in time; or
• a party or a party’s representative was not present at the hearing; or
• there was some other procedural irregularity in the proceedings.

In addition, any party can seek permission to appeal on a point of law against any decision of the Tribunal by making a written application for permission to the Tribunal within 28 days of receiving the decision against which it is sought to appeal. The application must specify the point of law involved and state the result the party is seeking.

On receipt of an application, the Tribunal will consider whether to review its own decision based on the reasons given by the party wishing to appeal and a further decision may be issued following a review. Where the Tribunal has decided that a member has failed to comply with the Code of Conduct, the member may seek permission to appeal against that decision. Such an appeal is not confined to a point of law and the first step is to seek permission for such an appeal by making a written application to the Tribunal.

The Tribunal will notify the parties as soon as practicable of its decision as to whether to give permission for an appeal. If the Tribunal decides that a review is not appropriate and if it refuses the application, the party can apply directly to the Upper Tribunal for permission to appeal.

The procedures provide far more clarity for those who are subject to the legislation, and also provide much more responsibility for parties to ensure that they act reasonably in relation to these proceedings.

Claire Lefort is an associate in the local government team at Weightmans. She can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..