[2024] UKUT 134 (AAC)

IC’s response to this appeal argued “in the alternative” (if the FTT decision was found to err in law) that the decision should be remade by the Upper Tribunal so as to strike out Mr Burton’s appeal.

IC’s response advocated the Upper Tribunal “remaking” as opposed to “remitting” to the FTT, as there were “no significant factual issues to resolve”; IC cited Ainslie v IC and Dorset CC [2012] UKUT 441 (AAC) at paragraph 39, where (in an appeal against a decision of the FTT following full consideration of the case, as opposed to a strike out by the FTT) Upper Tribunal Judge Wikeley accepted as well-made the point that “a s14(1) case” did not involve the types of issues which may require the specialist and broader experience of the FTT; IC also argued that there was a need for “closure, or at least further progress” in this matter, as Mr Burton’s request was made in November 2020.

Applying (as the FTT decision did) the principles in HMRC v Fairford at paragraph 41, the main question on a strike-out application like this one is whether the appeal’s prospects of success at a full hearing are realistic as opposed to fanciful; a mini-trial is to be avoided.

It does not seem to me that resolution of this question in this case requires the fact-finding specialism of the FTT; and so I am satisfied that in this case it is appropriate that, having set aside the FTT decision for error of law, I remake the decision.

IC’s response to this appeal makes out a case that s14 is satisfied in this case, concluding as follows at paragraph 40:

I note, however, that this does not directly address the point of whether Mr Burton’s counter-arguments (in his appeal grounds) are fanciful as opposed to realistic.

In my view, Mr Burton’s argument, as articulated it at paragraph 18 above, that IC’s decision was “wrong” in its approach to the cost burden of compliance as part of the holistic determination of whether Mr Burton’s request was vexatious, carries the necessary degree of conviction: whilst acknowledging that the burden of cost of compliance alone can amount to vexatiousness, and that Mr Burton is unlikely to be able adduce evidence to challenge what, per the views set out in IC’s decision notice, the cost burden would be, I consider Mr Burton’s core argument that IC’s decision notice, in finding the cost burden of compliance to be “grossly oppressive”, placed overmuch reliance on s12 figures, and failed to put the compliance cost figures in the context of DHSC’s resources, sufficiently grounded in both evidence and law to make it worthy of consideration by the FTT.

I have therefore remade the decision so as to refuse the application for strike-out.

As a postscript (as these are not, strictly, matters for the Upper Tribunal), I add that my expectation is that Mr Burton’s appeal will now progress to full hearing before the FTT; and that it would seem appropriate for the FTT hearing the appeal to have sight of this decision as part of their appeal papers.