Brief overview of the role of the tribunal and the county court
Where a penalty notice is issued the recipient of a penalty notice is entitled to request an internal review. If a review is conducted but is unsuccessful there is the right to make an appeal to the tribunal. Find more information about how to apply for a review.
Under our legislation, the penalty notices themselves carry the same status as a court order. This means we do not need to make a claim to the county court for the payment of the penalty sums as though they are a disputed debt. If a penalty remains unpaid then we will apply to the county court for an order for recovery of award (the order). Once the order is issued the county court will also arrange for a county court judgment to be registered against the recipient of the order.
The application for an order is permitted without placing the person on notice of the application and without the need for a hearing. This means that it is lawful and correct that you are served with the order without us or the court telling you that the application has been made and without there being a hearing.
The jurisdiction of the tribunal
The tribunal’s jurisdiction is to consider anything relating to the issuing of a penalty notice and the amount of a penalty. Matters that fall within the jurisdiction of the tribunal include (but are not limited to):
- Not receiving the compliance notice/unpaid contributions notice prior to the issuing of a penalty notice;
- Not receiving the penalty notice;
- Whether you have a reasonable excuse as to why you did not comply with the compliance notice/unpaid contributions notice;
- Whether notices were issued to you; and
- That the amount of the penalty notice is incorrect.
We are of the opinion, and the county court has consistently agreed, that anything related to the issuing of the notices and the amount of the penalty is the exclusive jurisdiction of the tribunal. This means that the county court does not have the power to also look at such matters.
The jurisdiction of the county court
We are also of the opinion, and, again, the county court has consistently agreed, that the extent of the county court’s jurisdiction is to ensure that we have correctly applied for an order. This is via our statutory powers under section 42 of the Pensions Act 2008 which provides a recovery pathway under rule 70.5 of the Civil Procedure Rules. We do not recover penalty amounts through the part 7 claims process as statute provides that our penalty notices are treated as county court orders. The county court’s role is administrative only to permit recovery of the penalties.
This means that the county court cannot look at any arguments around the issuing of the notices or against the amount of a penalty as this falls within the tribunal’s jurisdiction. If we have obtained an order and your set aside application only covers grounds that are for the tribunal to consider we will likely ask the court to dismiss the application. Similarly, if your grounds for a set aside include statements that:
- you did not receive a copy of our application for an order;
- you were not provided an opportunity to defend against the application; or
- you were not notified of a hearing (or given the opportunity to attend a hearing);
we will defend against these grounds on the basis that there is no error of law as the court is permitted to issue an order without placing you on notice of the application and without there being a hearing.
If you make an application where there are no grounds that fall within the court’s jurisdiction and we are required to attend court we will usually seek to recover the costs incurred in defending against the application to the fullest extent permissible by law. Depending on the circumstances of the claim, we may also seek to recover costs even if we are not required to attend court. It is important to ensure that any claim you make is to the right court or tribunal otherwise you risk costs being awarded against you which will be added to the total sums due.
Please note that we cannot advise you on the course of action to take and cannot provide any further information on jurisdiction other than as provided on this web page. If you are unsure, you should obtain your own independent legal advice.