[2025] UKUT 2 (LC)

Fecha: 07-Ene-2025

The FTT’s second decision and its grant of permission to appeal

The FTT’s second decision and its grant of permission to appeal

34.

The Council applied for permission to appeal the first decision to enable it to challenge the FTT’s interpretation of the policy, and its treatment of the discount for early payment. In its second decision the FTT dealt with the application and granted permission on those two issues. But before doing so it reminded itself that under rule 53 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 it was first required to consider whether to review its decision and then, if it did not alter its decision, to consider whether to grant permission to appeal.

35.

The power of review to which the FTT referred is contained in section 9 of the 2007 Act. It is necessary to refer here only to the following material parts of the section:

Review of decision of First-tier Tribunal

(1)

The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).

(2)

The First-tier Tribunal’s power under subsection (1) in relation to a decision is exercisable—

(a)

of its own initiative, or

(b)

on application by a person who for the purposes of section 11(2) has a right of appeal in respect of the decision.

(3)

Tribunal Procedure Rules may … [impose certain restrictions on the power of review]

(4)

Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following—

(a)

correct accidental errors in the decision or in a record of the decision;

(b)

amend reasons given for the decision;

(c)

set the decision aside.

(5)

Where under subsection (4)(c) the First-tier Tribunal sets a decision aside, the First-tier Tribunal must either—

(a)

re-decide the matter concerned, or

(b)

refer that matter to the Upper Tribunal.

[6]-[11] …

36.

The FTT granted permission to appeal on the issue of whether it had correctly interpreted the Council’s policy, but it did so “subject to the point which we did not need to determine, as to whether the construction urged by the Council was ‘too rigid’”. That was a reference to the last sentence of paragraph 20 of its first decision (see paragraph 31 above). It then said that it would review its decision in that respect only:

“The Tribunal did not determine whether (if we were wrong on the true construction of the policy) the “too rigid” exception applied. So that all matters are before the Upper Tribunal without the need for a cross-appeal, we do review our failure to determine this matter. In our judgment, if we erred in our construction of the policy, then the construction urged by the appellant would be too rigid, so that the same result would be reached but by this different route.”

37.

The FTT then summarised the matters on which it granted permission to appeal, which were:

(a)

whether it had erred in its construction of the Council’s policy by placing the conduct in respect of which the financial penalty was imposed in band 3 rather than band 4;

(b)

whether, if it had erred in that way in its construction of the policy, it had nonetheless reached the right conclusion on the basis that applying the policy in such a manner was “too rigid”, so as to fall within the exception identified in Marshall;

(c)

whether it had erred in giving a further discount of 20% to reflect the discount for speedy payment which would have been given if the Council had itself determined what the FTT considered to be the correct financial penalty to be imposed.

38.

It is convenient at this stage to consider the first and third of these grounds of appeal, each of which challenges an aspect of the FTT’s first decision. The second ground of appeal, for which the FTT granted permission without the Council having requested it, is advanced by the Council as part of its appeal, but the decision to incorporate the additional reasoning (rather than the substance of that reasoning) is central to the application for judicial review so the second ground of appeal is best considered in that context.