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• 01 Nov 2024

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  No. Section 12 TCEA 2007 and the Tribunal Procedure (Upper Tribunal) Rules 2008 apply to an appeal from the ETW but as if references to the FTT are references to the ETW: s. 81 ALNET.

  An appeal is against a “point of law”. On a point where the ETW has exercised judicial discretion, the UT will not substitute its discretion unless the ETW has acted outside the bounds of reasonable disagreement: by analogy see NS & RS v Kent CC [2021] UKUT 311 (AAC) para 96-97.

  The UT is badly placed to adjudicate on what was said by witnesses before the ETW – in the absence of a transcript, the hand written note of the Chair is the only authoritative guide to the evidence adduced: NC and DH v Leicestershire CC [2012] UKUT 85 (AAC) para 17-19.

  The UT has criticised attempts by the FTT to become involved in UT proceedings. In SG v Denbighshire CC and MB [2018] UKUT 158 para 3, the Tribunal President of SENTW sought to make written submissions, and the UT said it was “quite wrong” in principle for the FTT to “dogmatically advance a particular standpoint” before going on to criticise the substance as demonstrating “no discernible chain of reasoning to support the Tribunal’s assertions”. 

  At a hearing following an appeal, a second FTT panel is not entitled to simply uphold the first FTT’s decision if it has been found to include an error of law: JS v FTT and LB Greenwich [2011] UKUT 374 (AAC) para 11.

  The fact that an annual review of the Statement has been undertaken in the meantime, or is pending, does not mean that the UT appeal is rendered academic or that no relief should be given in the appeal: “its decision on whether errors were made may be important”:  SG v LB Bromley [2013] UKUT 619 (AAC) para 6.

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

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