MB v South London & Maudsley NHS Foundation Trust

When deciding an application to reinstate a withdrawn case under rule 17(4) of the Tribunal Procedure (First-tier Tribunal)(Health Education and Social Care) Rules 2008, the tribunal must consider whether there has been a relevant change in circumstances. There is no limit on what may amount to such a change. The assessment must take account of the reasons for the original withdrawal, rather than treating the applicant’s later wish to proceed as the only relevant change. Reasons for an interlocutory decision may be brief, but they must address the central thrust of the application, particularly where the proceedings concern a deprivation of liberty.

The appellant was detained under the Mental Health Act 1983 and applied to the First-tier Tribunal for conditional discharge. Shortly before the hearing, his representative sought consent to withdraw the application so that he could undergo further testing and discharge arrangements could be developed.

The First-tier Tribunal consented to withdrawal. The appellant then applied within 28 days for reinstatement, referring to the further testing and the development of discharge arrangements. The First-tier Tribunal refused reinstatement on the basis that the appellant could make a fresh application and gave no express consideration to whether the further testing constituted a relevant change in circumstances. The issue before the Upper Tribunal was whether that refusal involved an error of law.

1. Appeal allowed. The First-tier Tribunal’s refusal to reinstate the withdrawn application involved a material error of law. The decision was set aside under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
2. Under rule 17(4) of the Tribunal Procedure (First-tier Tribunal)(Health Education and Social Care) Rules 2008, the tribunal’s discretion must be exercised in accordance with the approach identified in JS v South London and Maudsley NHS Foundation Trust & another [2019] UKUT 172. This includes considering whether there has been a change of circumstances and the reasons supporting reinstatement.
3. The First-tier Tribunal mischaracterised the application. It treated the only relevant change as the appellant’s change of mind, although the withdrawal had been intended to allow further testing and the development of discharge plans. It therefore failed to consider whether the further testing during the intervening period could justify reinstatement. The approach in JS imposed no limit on what might constitute a relevant change of circumstances.
4. Alternatively, if those matters had been considered, the reasons were inadequate. Although brevity may be appropriate for an interlocutory decision, the adequacy of reasons had to be assessed in the context of proceedings involving deprivation of liberty. The reasons did not address the central thrust of the application.
5. The Upper Tribunal was able to remake the decision. The patient’s application for reinstatement was allowed and application MP/2022/09634 was reinstated.

• First-tier Tribunal (Health, Education and Social Care Chamber): On 8 August 2022, refused the appellant’s application to reinstate his withdrawn application, number MP/2022/09634.
• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, and remade the decision by allowing reinstatement.