The EAT has handed down yet another decision taking a common-sense approach to the overzealous application of the procedural rules. This case is authority for the proposition that the administrative rejection of a Response by the Secretary (not a chairman) is a 'decision' which is capable of review.
A few weeks after the prescribed Response Forms became compulsory, the Respondent sent a Response Form which it had downloaded from the ETS website. As is now well-known, the forms on the website were not prescribed, and so the Response was rejected.
Still within the 28 days, the Respondent lodged another Response Form. This one was also rejected, on the apparent basis that the boxes were the wrong size and so the ETS could not scan the form into their computer (HHJ Burke QC, at paragraph 7 of the judgment, commented that he could not see how the boxes could be said to be of the wrong size).
On appeal, HHJ Burke held:
- tribunals have power to review the administrative decisions of the Secretary not to accept a Claim or Response Form on the basis it is a 'decision' within the meaning of the rules - therefore the power of review exists
- there is no requirement in the Rules about the size of the text or the boxes, or a need to be able to scan the forms into the ETS's computer system. Thus there was no valid reason for rejecting the Response Form
- since no tribunal could reasonably decide otherwise on review, it was appropriate to allow the appeal and substitute a decision that the Response Form should be accepted.