[2024] UKUT 89 (AAC)

The Appellants argue that the plain language of rule 10(5)(a) clearly supports the proposition that time does not begin to run, for the purposes of making a costs application, upon the Tribunal issuing its decision on the substantive appeal. The rule refers to a decision notice which “finally disposes of all issues in the proceedings”. It is obvious that ‘the proceedings’ include any application for permission to appeal against the substantive appeal decision. Such an application cannot be considered made in separate proceedings.

The substantive appeal decision may only be treated as the decision which disposes of all issues in the proceedings if an Appellant decides not to apply for permission to appeal to the Upper Tribunal. The present Appellants did apply for permission to appeal and so the substantive appeal decision issued on 23 December 2021 did not dispose of all issues in the proceedings.

The Appellants submit that their construction of the 2008 Rules is supported by Upper Tribunal Jacobs’ decision in UA v London Borough of Haringey (SEN) [2016] UKUT 0087 (AAC) in which he held, at [12], that “Looking at the design of the rules, it is clearly that rule 10(5) was designed to allow an application to be made within the 14 days after proceedings come to an end”.

The Appellants also draw my attention to a decision of the Tax Chamber of the First-tier Tribunal, Ritblat v HMRC [2020] UKFTT 0453, which considered procedural rules analogous to the 2008 Rules. Judge Sinfield held:

“21.

Although rule 1(2) of the FTT Rules provides that the "[t]hese Rules apply to proceedings before the Tax Chamber of the First-tier Tribunal", that does not mean, in my opinion, that the FTT Rules do not continue to apply after the proceedings have ended (see rule 17 ). It is clear from rules 10 (costs), 38 (set aside) and 39 (permission to appeal) that the FTT retains jurisdiction in relation to applications under those rules after the issue of a decision that finally disposed of all issues in the proceedings…Where applications are made after a decision disposing of all issues in the proceedings has been issued that relate to the proceedings then and to that extent those proceedings continue until those applications have been determined or withdrawn.”

The Appellants acknowledge that a decision of the First-tier Tribunal is not binding on me and go on to submit that Judge Sinfield’s observation, or assumption, that applications for permission to appeal are made after the decision which finally disposes of all issues in the proceedings was in any event obiter. The decision is drawn to my attention because “there may be a common misunderstanding at the FtT level, that a Tribunal’s substantive decision finally disposes of all issues in the proceedings” but, nevertheless, the decision is consistent with the Appellants’ argument that ‘proceedings’ refers to the entirety of matters encompassed under a single notice of appeal.

In relation to ground 2, the Appellants repeat the arguments made in their application to the Upper Tribunal for permission to appeal and submit that the Council fail to engage with those argument. The Council simply express their agreement with the First-tier Tribunal’s reasons for refusing permission to appeal against its ruling on the costs application.