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• 14 Feb 2022

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No. An appeal to the UT is governed by Tribunals, Courts and Enforcement Act 2008 s12 and the Tribunal Procedure (Upper Tribunal) Rules 2008.  An appeal is against a “point of law”. On a point where the FTT has exercised judicial discretion, the UT will not substitute its discretion unless the FTT has acted outside the bounds of reasonable disagreement: NS & RS v Kent CC [2021] UKUT 311 (AAC) #96-97.

The UT is badly placed to adjudicate on what was said by witnesses before the FTT – 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) #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 #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) #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) #6.

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14 Feb 2022

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