LW v Proprietor of Broughton Hall Catholic High School

For an automatic strike-out under rule 8 of the First-tier Tribunal rules, the 28-day period for applying for reinstatement begins when the Tribunal sends notification that the strike-out has occurred. It does not begin with an earlier direction warning that non-compliance will cause a future automatic strike-out.

A tribunal considering reinstatement must apply the overriding objective and assess the broad justice of the case. Relevant matters may include the reason for default, the promptness of the reinstatement request, prejudice, and the practical effect of late compliance on case management.

The appellant’s claim in the First-tier Tribunal was automatically struck out after she did not provide an attendance form by the deadline in a direction which warned of that consequence. Her representative submitted the attendance form and requested reinstatement on 19 April 2023, after the Tribunal sent an email stating that the claim had been struck out.

On 28 April 2023, the First-tier Tribunal held that the request was outside the 28-day period because time ran from the date on which the automatic strike-out took effect. It refused reinstatement. The appellant appealed to the Upper Tribunal.

The central issue was the meaning of the time limit in rule 8(7): whether it runs from the automatic strike-out itself or from notification sent by the Tribunal after that event.

1. Appeal allowed. The First-tier Tribunal erred in law by treating the 28-day period for reinstatement as running from the date on which the automatic strike-out took effect. Its decision was set aside under Tribunals, Courts and Enforcement Act 2007, section 12(2)(a) and (b)(ii).

2. Rule 8 establishes a sequence. A properly warned direction may lead to an automatic strike-out on non-compliance under rule 8(2). The affected party may then seek reinstatement under rule 8(6). Rule 8(7) fixes the time limit as 28 days after the Tribunal sends notification of the strike-out which has occurred.

3. A warning of a possible future automatic strike-out is not notification of an actual strike-out. It cannot start the rule 8(7) period, because compliance with the direction would mean that no strike-out occurred. The email of 19 April 2023 was the relevant notification, so the reinstatement request made that day was in time.

4. The Upper Tribunal remade the decision only to determine timeliness. It remitted the substantive reinstatement request to the First-tier Tribunal, which was better placed to exercise its case-management discretion. That tribunal must apply the overriding objective in rule 2 and consider the broad justice of the circumstances. Relevant matters may include the reason for the default, delay in seeking reinstatement, prejudice, the early submission of the attendance form before the listed hearing, and the respondent’s neutral position.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal in [2023] UKUT 301 (AAC), set aside the First-tier Tribunal decision, held that the reinstatement request was in time, and remitted the merits of reinstatement.

• First-tier Tribunal (Health, Education and Social Care Chamber): On 28 April 2023, in decision EH341/22/00153, refused reinstatement on the basis that the request was outside the 28-day period.

• First-tier Tribunal (Health, Education and Social Care Chamber): The Deputy Chamber President refused permission to appeal on 9 August 2023. Upper Tribunal Judge Ward later extended time and granted permission to appeal.