[2025] UKUT 201 (AAC)

It is not disputed, and I find, as follows.

The First-tier Tribunal erred in law in two ways: (1) in taking account of an irrelevant matter, and (2) in failing to seek and await further evidence. I take each in turn below.

Taking account of an irrelevant matter

The First-tier Tribunal erred in law in taking into account an irrelevant matter. The irrelevant matter is the First-tier Tribunal’s finding that there had been a breach of regulation 4.

I accept that, as Mr Ham pointed out for the local authority at the permission hearing, the First-tier Tribunal went on to discuss only the facts underlying the breach of regulation 3 and those underlying the breach of section 83(6). But that is countered by the following.

First, the First-tier Tribunal was “satisfied that it was reasonable for the Respondent to impose FPs in these circumstances” at paragraph 21. This paragraph immediately followed paragraphs 15 to 20 which included at paragraphs 17 and 18 the finding that there was a breach of regulation 4. The finding that there had been a breach of regulation 4 appears therefore to have been part of the “circumstances” to which the tribunal referred in paragraph 21 as making it reasonable to impose the penalties. The same goes for the First-tier Tribunal’s considerations at paragraphs 23 and 24; the tribunal considered “whether the amount of the FPs was unreasonable in all the circumstances”, and found that “it was not unreasonable for the Respondent to impose FPs of £20,000 and £4,000 in the circumstances”. Again, those “circumstances” prima facie included the irrelevant finding that regulation 4 had been breached.

Second, the First-tier Tribunal went on to say at paragraph 43 (my underlining)—

“43.

I must consider as there are two FPs whether the total FP is just and proportionate to the breaches. I find that the total FPs are just and proportionate to the seriousness of the breaches.”.

The text I have underlined does not say that the First-tier Tribunal was considering whether the total penalty was just and proportionate to the two breaches of regulation 3 and section 83(6). It says “the breaches” without more. That prima face includes the “breach” of regulation 4 which the tribunal found to have occurred.

Third, the First-tier Tribunal would not have made a finding that regulation 4 was breached unless the First-tier Tribunal considered that finding relevant.

Fourth, I accept that the First-tier Tribunal did not purport to consider whether a separate penalty for a breach of regulation 4 should be upheld (there was no such penalty). But, that does not mean that the finding of a breach of regulation 4 did not influence the First-tier Tribunal’s consideration of whether to uphold the amounts of the penalties which were imposed, for breaching regulation 3 and section 83(6).

Failing to seek and await financial information from the appellant

It was also an error of law not to seek whatever financial information the First-tier Tribunal considered it needed and give (and wait) a reasonable time for it to be supplied. This overarching error of law includes the errors of law mentioned at paragraphs 27 to 39 below.

The First-tier Tribunal found (my underlining)—

“The Appellant has been given ample opportunity to produce financial information and has chosen not to do so” (paragraph 49).

Both of those underlined findings were not supported by the evidence. I say that for the following reasons.