[2023] UKUT 128 (LC)

Fecha: 06-Jun-2023

Conclusions

The appeal

11.

The FTT had a discretion as to whether to extend time or to strike out the appeal. Its explanation for striking it out was expressed in entirely generic terms and did not engage with the reason given by the applicant for the delay in submitting the appeal (i.e. that he is elderly and within two weeks or so of receiving the civil penalty notice he contracted Covid from which he then took several weeks to recover, leaving him unable to submit his appeal until 19 August). The FTT did not say whether it accepted that account as truthful, and if not why not; nor did it say why, if it accepted the explanation as true, it found it an inadequate explanation for the relatively short delay in submitting the appeal. It is well known that Covid can cause exhaustion; the delay was of less than a month and so was commensurate with the length of time for which the appellant said he was ill. It may be that the FTT thought that some medical evidence should have been provided, but it is easy to see that such evidence might be very difficult to obtain; and in any event, if that was the problem, the FTT did not say so.

12.

It is difficult to escape the conclusion that the FTT either did not take in and give proper consideration to the explanation the appellant gave, so that it failed to take into account a relevant consideration, or did not give reasons why it found the explanation inadequate. The FTT’s decision is therefore set aside.

13.

The appellant’s appeal from the financial penalty is therefore reinstated, and he should apply to the FTT for directions in order to pursue his appeal.

Upper Tribunal Judge Elizabeth Cooke

6 June 2023

Right of appeal

Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.