[2025] UKUT 011 (AAC)

The appellant in her appeal draws particular attention to a number of documents in the 579 page bundle. The appellant says that on further consideration of the 579 page bundle she has been able to identify more material that is missing.

The FTT took evidence from the appellant about some of the documents that were within the 579 page bundle, including the documents which the appellant particularly draws our attention to. I have no doubt that the FTT Judge was mindful of the requirement for the hearing to be fair, mindful of previous delays, and took steps to assist the appellant to put her case, including exploring her evidence about some documents within the new bundle.

Despite those efforts, the FTT procedure was not fair, in error of law.

The production by HMRC of a 579 page bundle on the day before the hearing is unfortunate to say the least. It is unclear on the face of the FTT Decision Notice and Statement of Reasons whether any consideration was given to adjourning the proceedings. The service of such a large volume of material should have triggered active consideration by the FTT as to whether to use its discretionary powers to adjourn, applying the overriding objective. Relevant features of the overriding objective include ‘avoiding delay, so far as compatible with proper consideration of the issues’, and ‘ensuring, so far as practicable, that the parties are able to participate fully in proceedings’.

The fact that the appellant did not ask for an adjournment is one factor to be borne in mind, but should not be treated as a decisive factor, particularly in circumstances like this where the appellant was representing herself. I note that the appellant tells the Upper Tribunal that she struggles with documentation because of issues including ADHD, although it does not appear that the FTT were told that. Regardless of that, any appellant representing themselves may feel under pressure to carry on with a hearing, may feel reluctant to ask for an adjournment, and, indeed, may feel strongly that they want their case to be determined even if they have not had time to look at all of the papers. A lack of a request to adjourn plainly does not necessarily mean that a fair hearing can take place. The lack of any request from this appellant to adjourn should not, in the circumstances of this case, have stopped the FTT from giving the matter full and active consideration.

The FTT should have considered a range of factors before making a determination about whether to proceed. The FTT should have sought information from the appellant about how much of the new material she had been able to read and consider. In particular, given that the hearing was conducted by telephone, the FTT should have enquired into how the appellant was accessing the new material and whether she was able to access it effectively during the hearing (noting that if a person is speaking on their telephone and does not have a computer, they may not be able to look at documents).

In exercising its discretion the FTT should also have borne in mind that HMRC’s paperwork in the case had been chaotic, and that it was therefore not easy to pick up a new bundle of material and work out where it all fitted in a chronology. HMRC had previously sent four submissions which HMRC acknowledged (in a document submitted for a FTT hearing on 18 November 2022) were wrong, or in HMRC’s words ‘suffered several misapprehensions’. Some of HMRC’s paperwork was contradictory and misleading; as an example a notice from HMRC in this case dated 22 October 2020 referred to a decision which HMRC later conceded did not actually exist (as explained at p164). The importance of having time to study the bundle properly and cross-refer documents in it was amplified by the chaotic nature of HMRC’s paperwork.

It is apparent that, now that the appellant has been able to study the bundle, and discuss its contents with others including HMRC employees, that she has further information and representations which may have assisted the FTT, including:

All of that may have been highly relevant evidence to assist the FTT in determining whether the appellant had, in fact, asked for mandatory reconsideration within the 13 month timeframe. That in turn may have affected the FTT’s findings about whether they had jurisdiction to determine the appeal against Decision 1.

As that was a material error I am setting aside the decision and remitting the case to be determined by a different FTT. I do not need to determine further points which may also have been errors of law. I note that this appeal concerns two separate decisions, but that all matters were considered together by the FTT as one case. That means that all matters will be reconsidered by the new FTT, including Decision 2.

I note that I have bundles with inconsistent pagination. Within one of the bundles provided to the Upper Tribunal there are documents paginated 194-200 in the top corner which include a letter from the appellant dated 9 October 2018 and a print-out which may show that a photographs of the letter was taken on 9 October 2018 (it appears to be a screenshot of the data associated with a photograph of the letter). I am not making any factual findings, but simply drawing attention to this material, given that it may be important, and given that it has duplicate pagination.

If parties wish to rely on further material, including recordings, that should be supplied to the FTT within one month of this decision being issued, subject to further direction by the FTT.