[2024] UKUT 411 (AAC)

Since the District Tribunal Judge who refused IN’s permission application to the First-tier Tribunal raised the issue of whether there was a termination of the representative’s Rule 11(7)(a) appointment I feel that I should deal with that question for the sake of completeness.

In YA Charles J discussed how an appointment under Rule 11(7)(a) might be brought to an end, given that the appointment was made by the tribunal rather than by the patient. He said:

“…the appointment by the tribunal would have been under rule 11(7)(a) and based on the wish or request of the patient and so the patient effectively has the right to terminate the appointment even if formally the tribunal has to end it”.

The District Tribunal Judge said that the representative’s leaving the hearing was “in effect her termination of the acceptance of the appointment under rule 11(7)(a) in combination with the patient’s effective termination of the appointment by failing to give instructions” (see paragraph 5 of District Tribunal Judge Gledhill’s refusal of permission dated 22 December 2022).

I do not agree with this analysis. It is not necessary to infer from IN’s not engaging with his representative that he wished to terminate her appointment. Rather, IN is reported as having continued to express a preference for being represented. Neither is it necessary to infer from his representative’s leaving the hearing that she considered herself no longer retained to act for IN. Indeed, her parting words appear to have been a statement of her intention to apply for permission to appeal the Tribunal’s decision, which indicates that she considered herself still to be instructed.

In any event, the District Tribunal Judge’s analysis is at odds with the Tribunal’s own explanation of its decision making in its reasons: the Tribunal proceeded on the basis that IN’s representative’s appointment survived both IN’s refusal to engage with her and her decision to leave the hearing. It was perfectly entitled to do so.