The First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals (Procedure) Regulations 2017

Made: 26th October 2017

Laid before the Scottish Parliament: 30th October 2017

Coming into force: 12th January 2018

In accordance with paragraph 4(3) of schedule 9 of that Act, they have consulted the President of the Scottish Tribunals and such other persons as they have considered appropriate.

Citation and commencement

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• (1) These Regulations may be cited as the First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals (Procedure) Regulations 2017, and the Rules set out in the schedule may be cited as The First-tier Tribunal for Scotland General Regulatory Chamber Charity Appeals Rules of Procedure 2018.

• (2) These Regulations come into force on 12th January 2018.

Application of the Rules set out in the schedule

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The Rules in the schedule apply to proceedings before the First-tier Tribunal for Scotland General Regulatory Chamber, when exercising the functions allocated to it by regulation 2(1) of the First-tier Tribunal for Scotland (Transfer of Functions of the Scottish Charity Appeals Panel) Regulations 2018[^f00002].

SCHEDULE — THE FIRST-TIER TRIBUNAL FOR SCOTLAND GENERAL REGULATORY CHAMBER CHARITY APPEALS RULES OF PROCEDURE 2018

Interpretation

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In these Rules—

• “the 2005 Act” means the Charities and Trustee Investment (Scotland) Act 2005[^f00003];

• “the 2014 Act” means the Tribunals (Scotland) Act 2014;

• “chairing member” means a legal member of the First-tier Tribunal determined by the Chamber President to act as the chairing member;

• “Chamber President” means the Chamber President of the First-tier Tribunal;

• “decision” means a decision of OSCR referred to in section 76(1) of the 2005 Act unless the context requires otherwise;

• “electronic communication” has the meaning given to it by section 15(1) of the Electronic

• Communications Act 2000[^f00004] and “electronic signature” has the same meaning as in section 7of that Act[^f00005];

• “First-tier Tribunal” means the First-tier Tribunal for Scotland General Regulatory Chamber;

• “hearing” means a sitting of the First-tier Tribunal for the purpose of enabling the First-tier Tribunal to take a decision on an appeal or on any question or matter at which the parties are entitled to attend and be heard;

• “legal member” means an individual holding membership of the First-tier Tribunal in accordance with section 15(2) of the 2014 Act;

• “OSCR” has the meaning given in section 1 of the 2005 Act;

• “register” means the register of appeals and decisions kept in accordance with rule 27; and

• “review” means the internal review provided for by section 43(1) of the 2014 Act.

Overriding objective

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• (1) The overriding objective of the First-tier Tribunal is to deal with the proceedings fairly and justly.

• (2) Dealing with proceedings fairly and justly includes—

• (a) dealing with the proceedings in a manner which is proportionate to the complexity of the issues and the resources of the parties;

• (b) avoiding unnecessary formality and seeking flexibility in the proceedings;

• (c) ensuring so far as practicable, that the parties are able to participate fully in proceedings;

• (d) using any special expertise of the First-tier Tribunal effectively; and

• (e) avoiding delay, so far as compatible with proper consideration of the issues.

Application by First-tier Tribunal of the overriding objective

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• (1) The First-tier Tribunal must seek to give effect to the overriding objective when it—

• (a) exercises any power under these Rules; or

• (b) interprets any rule.

• (2) In particular the First-tier Tribunal must manage appeals actively in accordance with the overriding objective.

Delegation to staff

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• (1) Staff of the Scottish Courts and Tribunals Service with appropriate legal qualifications may, with the approval of the Chamber President, carry out functions of a judicial nature permitted or required to be done by the First-tier Tribunal provided the functions are of a preliminary or incidental nature.

• (2) The approval referred to at paragraph (1) may apply generally to the carrying out of specified functions by members of staff of a specified description in specified circumstances.

Notice of appeal

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• (1) An appeal to the First-tier Tribunal in terms of section 76 of the 2005 Act shall be made by giving notice in writing in accordance with the following paragraphs.

• (2) The notice shall be addressed to the First-tier Tribunal and shall include—

• (a) the name and address of the appellant;

• (b) the date and, if known, the reference number of the decision against which the appeal is made;

• (c) the name and address of the representative of the appellant (if any);

• (d) a brief statement setting out the reasons for the appeal; and

• (e) a statement that the notice is a notice of appeal.

• (3) The appellant or the representative of the appellant (if any) must sign the notice of appeal.

Confirmation of appeal by the First-tier Tribunal

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• (1) Within 14 days of receipt of the notice of appeal, the First-tier Tribunal shall–

• (a) send an acknowledgement of receipt of the notice of appeal to the appellant;

• (b) enter the particulars of the appeal referred to in rule 5(2)(a) and (b) in the register; and

• (c) advise the appellant and OSCR, in writing, of the following—

• (i) the case number of the appeal;

• (ii) the date by which the appellant may submit written representations to the First-tier Tribunal together with copies of all documentation provided to OSCR for the purpose of OSCR reaching the decision against which the appeal is made; and

• (iii) the date by which OSCR may make written representations to the First-tier Tribunal and by which it must send to the First-tier Tribunal an authenticated copy of the decision against which the appeal is made.

• (2) The date referred to in (1)(c)(ii) is to be no later than 28 days after the date of acknowledgement of receipt of the appeal.

• (3) The date referred to in (1)(c)(iii) is to be no later than 42 days after the date of acknowledgement of receipt of the appeal.

Appeal documents

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The First-tier Tribunal must as soon as possible after receipt of any document from a party to proceedings, send a copy of that document to the other party.

Withdrawal of appeal

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• (1) The appellant may withdraw the appeal—

• (a) at any time before the hearing of the appeal by sending a notice of withdrawal to the First-tier Tribunal; or

• (b) at the hearing of the appeal.

• (2) Where an appeal is withdrawn, no further appeal may be made in relation to the same decision.

Withdrawal of response by OSCR

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OSCR may give notice to the First-tier Tribunal of the withdrawal of its response and opposition to the appeal—

• (a) at any time before the hearing of the appeal by sending a notice of withdrawal to the First-tier Tribunal; or

• (b) at the hearing of the appeal.

Additional, substitution and removal of parties

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• (1) The First-tier Tribunal may give an order adding, substituting or removing a party as an appellant or a respondent including where—

• (a) the wrong person has been named as a party; or

• (b) the addition, substitution or removal has become necessary because of a change in circumstances since the start of proceedings.

• (2) If the First-tier Tribunal makes an order under paragraph (1) it may make such consequential orders as it considers appropriate.

• (3) A person who is not a party may make a written application to the First-tier Tribunal to be added or substituted as a party under this rule.

• (4) If the First-tier Tribunal refuses an application under paragraph (3) it must consider whether to permit the person who made the application to provide submissions or evidence to the First-tier Tribunal.

Evidence and submissions

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• (1) The First-tier Tribunal may give orders as to—

• (a) issues on which it requires evidence or submissions;

• (b) the nature of any such evidence;

• (c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;

• (d) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;

• (e) the manner in which any evidence or submissions are to be provided, which may include an order for them to be given—

• (i) orally at a hearing; or

• (ii) by written submissions or witness statement; and

• (f) the time at which any evidence or submissions are to be provided.

• (2) The First-tier Tribunal may exclude evidence that would otherwise be admissible where—

• (a) the evidence was not, without reasonable excuse, provided within the time allowed by an order or a practice direction;

• (b) the evidence was otherwise, without reasonable excuse, provided in a manner that did not comply with an order or a practice direction; or

• (c) it would otherwise be unfair to admit the evidence.

• (3) The First-tier Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.

Sending and delivery of documents

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• (1) Any document to be provided to the First-tier Tribunal under these Rules, a practice direction or an order must be—

• (a) sent by pre-paid post or document exchange, or delivered by hand, to the address of the First-tier Tribunal; or

• (b) sent or delivered by such other method as the First-tier Tribunal may permit or order.

• (2) Subject to paragraph (3), if a party or representative provides a fax number, email address or other details for the electronic transmission of documents to them, that party or representative must accept delivery of documents by that method.

• (3) If a party informs the First-tier Tribunal and all other parties that a particular form of communication (other than pre-paid post or delivery by hand) should not be used to provide documents to that party, that form of communication must not be so used.

• (4) If the First-tier Tribunal or a party sends a document to a party or the First-tier Tribunal by email or any other electronic means of communication, the recipient may request that the sender provide a hard copy of the document to the recipient. The recipient must make such a request as soon as reasonably practicable after receiving the document electronically.

• (5) The First-tier Tribunal and each party may assume that the address provided by a party or its representative is and remains the address to which documents should be sent or delivered until receiving notification to the contrary.

Notice of hearing

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• (1) The First-tier Tribunal must give each party entitled to attend a hearing reasonable notice of the time and place of any hearing and not less than 14 days before the date so fixed, send to each party a notice of hearing.

• (2) The notice of hearing must state—

• (a) the date, time and place of the hearing;

• (b) the members of the First-tier Tribunal hearing the case; and

• (c) the manner and order of proceedings, having regard to any applicable burden and standard of proof and rules of evidence.

• (3) The notice of hearing should, where appropriate—

• (a) provide information and guidance as to attendance at the hearing of the parties and witnesses, the bringing of documents, the right of representation, the right of assistance by a supporter and the procedure applicable to the hearing, having regard to any applicable rules of evidence and burden and standard of proof;

• (b) explain the right of the parties to receive reasons in writing for a decision of the First-tier Tribunal;

• (c) explain the possible advantages of attendance, consequences of non-attendance, and the right of the appellant and of OSCR, if not present and not represented, to make representations in writing; and

• (d) specify the date by which the appellant and OSCR must inform the First-tier Tribunal whether or not they intend to be present or represented at the hearing, and that date must not be later than 7 days before the hearing.

• (4) The notice must include a request to inform the First-tier Tribunal of any reasonable adjustments which any party may have which are relevant to the attendance of that party at the hearing.

Hearing in absence of a party

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• (1) Where either party to the appeal informs the First-tier Tribunal that it does not intend to appear at the hearing, the First-tier Tribunal shall determine a date by which that party may provide further written submissions to be considered at the hearing.

• (2) The First-tier Tribunal shall advise both parties to the appeal of the date determined in terms of paragraph (1).

• (3) Where both parties inform the First-tier Tribunal that they do not intend to appear or be represented at the hearing, the First-tier Tribunal may proceed to decide the appeal at any time after the date determined by the First-tier Tribunal in terms of paragraph (1).

Absence of member of the First-tier Tribunal

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If, at or after the beginning of a hearing, a member of the First-tier Tribunal other than the chairing member is absent, the appeal may, with the consent of the parties, be heard by the other two members and, in that event, the First-tier Tribunal shall be deemed to be properly constituted.

Representatives

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• (1) A party may be represented in any proceedings by a legal representative or lay representative whose details must be communicated to the First-tier Tribunal prior to any hearing.

• (2) A party may disclose any document or communicate any information about the proceedings to that party’s legal representative or lay representative without contravening any prohibition or restriction on disclosure of the document or information.

• (3) Where a document or information is disclosed under paragraph (2), the legal representative or lay representative is subject to any prohibition or restriction on disclosure in the same way that the party is.

• (4) Anything permitted or required to be done by a party under these Rules, a practice direction or an order may be done by a lay representative, except signing of an affidavit or precognition.

• (5) The First-tier Tribunal may order that a lay representative is not to represent a party if—

• (a) it is of the opinion that the lay representative is an unsuitable person to act as a lay representative (whether generally or in the proceedings concerned); or

• (b) it is satisfied that to do so would be in the interests of the efficient administration of justice.

• (6) Where a party is represented, the First-tier Tribunal must send all documents and notices concerning references or claims to the representative instead of the party.

Supporters

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• (1) A party who is an individual may be accompanied by another person to act as a supporter.

• (2) A supporter may assist the party by—

• (a) providing moral support;

• (b) helping to manage tribunal documents and other papers;

• (c) taking notes of the proceedings;

• (d) quietly advising on—

• (i) points of law and procedure;

• (ii) issues which the party might wish to raise with the tribunal.

• (3) A party may disclose any document or communicate any information about the proceedings to that party’s supporter without contravening any prohibition or restriction on disclosure of the document or information.

• (4) Where a document or information is disclosed under paragraph (3), the supporter is subject to any prohibition or restriction on disclosure in the same way that the party is.

• (5) A supporter may not represent the party.

• (6) The First-tier Tribunal may order that a person is not to act as a supporter of a party if—

• (a) it is of the opinion that the supporter is an unsuitable person to act as a supporter (whether generally or in the proceedings concerned); or

• (b) it is satisfied that to do so would be in the interests of the efficient administration of justice.

Failure of parties to attend

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• (1) If a party fails to be present or represented at a hearing, the First-tier Tribunal may, if it is satisfied that the party was duly notified of the hearing and is not aware of any good reason for such absence—

• (a) hear and decide the appeal in the absence of the party; or

• (b) adjourn the hearing and may give such orders as it considers necessary (including an order for expenses under rule 24).

• (2) Before deciding to dispose of any appeal in the absence of a party, the First-tier Tribunal must consider any representations in writing submitted by that party.