The Family Health Services Appeals Authority (FHSAA) was abolished on 18 January 2010 by the Transfer of Tribunals Functions Order 2010 ("the Functions Order"). PCTs with cases pending before the FHSAA should be aware that such cases have transferred to the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal (HESC) – see our previous Update.

In light of the abolition of the FHSAA, the FHSAA Procedure Rules are no longer in force. The HESC has its own set of rules, which are set out in the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699). These are referred to as the Tribunal Procedure Rules below.

Cases pending on 18 January 2010

On 18 January 2010, the Functions Order came into force, and this date is referred to as the “date of transfer” below. The Functions Order sets out transitional arrangements for cases that were  pending at the date of transfer.

These include:

  • where a hearing began before the date of transfer and was not completed by that date, the new tribunal must be comprised by the person(s) who began the hearing; 
  • the new tribunal may give any direction to ensure that proceedings are dealt with fairly, and in particular may: 
    • apply any provision in procedural rules (i.e. the FHSAA Procedure Rules) which applied to the proceedings before the transfer date; or 
    • disapply provisions of the Tribunal Procedure Rules; 
  • any directions or order given or made in proceedings prior to the date of transfer will remain in force on and after that date as if it was made by the new tribunal; 
  • a time period that has started to run before the date of transfer, and that has not expired, will continue to apply;
  • an order for costs may only be made if, and to the extent that an order for costs could have been made by the old tribunal before the  date of transfer. As the FHSAA Procedure Rules gave no power to award costs, no orders for costs can be made for cases that are pending on the date of transfer; and
  • where there is a right of appeal outstanding from an FHSAA case before the date of transfer, and that right of appeal has not been exercised nor has the time limit to exercise that right of appeal expired prior to the date of transfer, an appeal from the FHSAA gives rise to the right of appeal to the Upper Tier Tribunal under section 11 of the Tribunal, Courts and Enforcement Act 2007 (as opposed to an appeal to the High Court as would have previously been the case under the old FHSAA Procedure Rules).

New cases after 18 January 2010

  • All cases brought after the date of transfer will be subject to the Tribunal Procedure Rules, and will be before the HESC. The Tribunal Procedure Rules set out an overriding objective for the HESC to deal with cases fairly and justly. This includes: 

  • dealing with the case in ways which are proportionate to the importance of the case;
  • avoiding unnecessary formality and seeking flexibility in the proceedings;
  • ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings;
  • using any special expertise of the Tribunal effectively; and 
  • avoiding delay, so far as compatible with proper consideration of the issues.

HESC also has the power to award costs, a power which the FHSAA did not possess - see our previous Update.

The Functions Order also amends legislation, including the National Health Service (Performers Lists) Regulations, to remove references to the FHSAA and replace then with the “First Tier Tribunal”.

It should be noted that Regulation 18 (Restrictions on withdrawal from performers lists) of the Performers List Regulations has not been amended. The implication of this is that Secretary of State’s consent will still be required where a performer who wishes to withdraw from any PCT performers list and the PCT is investigating a performer in relation to removing or contingently removing that performer, or where that performer is suspended under Regulation 13(1) for example.

Also, any appeals from the FHSAA that would previously have gone to the High Court, will now be heard in the Upper Tier Tribunal. Appeals from the Upper Tier Tribunal can only be on a point of law, and must not be an excluded decision. Such appeals, if permitted, will go before the Court of Appeal. The Court of Appeal in these circumstances can also make findings of fact, not previously made in earlier proceedings.

Practical steps for PCTs 

Given that the transitional arrangements give the new tribunals the power to apply the old FHSAA Procedure Rules and disapply the provisions of the new Tribunal Procedure Rules, PCTs should consider seeking a directions hearing for cases pending on 18 January 2010. This will assist the PCT in clarifying the rules and procedures that the Tribunal will apply going forwards in these cases. Section 6 of the Tribunal Procedure Rules set out the procedure for applying for and giving directions.

For cases pending on 18 January 2010, as well as new cases post 18 January 2010, PCTs should ensure that staff who exercise list management functions and powers, as well as List Management Panel Members, are familiar with the Tribunal Procedure Rules.

Should you require any additional advice on the issues set out above, please contact a member of our Commercial Healthcare Team, who will be happy to assist you.

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