[2024] UKUT 24 (LC)

The respondent had not raised any allegation of procedural non-compliance in her grounds of appeal to the FTT. Although in its standard directions the FTT itself said that it would consider whether the Council had complied with the statutory procedure for imposing a financial penalty, it raised with the Council’s lay representative its specific concerns about the validity of the notices of intent only on the morning of the hearing and neither party had come prepared to address that issue. After allowing a short pause, the FTT proceeded to allow the appeal without giving proper time for research and mature consideration.

The procedure adopted by the FTT was unfair. It would have been made fair if the FTT had allowed the parties an opportunity, after the hearing, to make any further submissions on the validity of the notices of intent in writing before the FTT reached its decision. That would have delayed the FTT in completing its determination, but it would have been fair to the parties and might have avoided the need for this appeal. One consequence of the approach adopted by the FTT was that it made its decision without its attention having been drawn to the Jeyeanthan principle or to the authorities which apply it, including Younis. The FTT itself did not refer to any authority on the validity of a notice of intent or on the consequences of relying on an inadequate notice.

The Council did not seek to rely on procedural unfairness as a ground of appeal in this case, as it might have done, but sought permission to appeal on the basis that the FTT had applied the wrong approach when it held that the notices of intent were invalid and could not support the financial penalties. In its application for permission it referred to the Tribunal’s decision in Younis, and in refusing permission to appeal the FTT referred to Maharaj which it said had “settled the point”.

The Council renewed its application for permission to appeal to this Tribunal and suggested that the decisions in Younis and Maharaj were inconsistent with one another. I granted permission to appeal to enable that proposition to be considered, and I have already explained why I do not consider there is any such inconsistency. The two remaining issues on which permission to appeal was granted were: