Upper Tribunal Tax and Chancery Chamber

UT (Tax & Chancery) UT/2023/000096 - [2024] UKUT 00203 (TCC)

Fecha: 02-May-2024

Ground 2 – changes made by the ftt to its decision should not have been made

Ground 2 – changes made by the ftt to its decision should not have been made

37.

The Appellants submitted that the FTT erred in law as the changes that were made in the Revised Decision are too extensive and significant to be justified under the slip rule in Rule 37 and are of a nature that should not be made under the review power in Rule 41, the consequence of which is that we should treat the relevant changes as not having been made when deciding whether to allow the appeal.

38.

We set out first the relevant legislation and rules before summarising the parties’ submissions and reaching our conclusions.

39.

Section 9(1) Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”) provides that the FTT may review a decision made by it on a matter in a case. Section 9(2) provides that this power is exercisable of its own initiative or on an application by a person who has a right of appeal in respect of the decision. By s9(3), Tribunal Procedure Rules (which include for this purpose the FTT Rules) may provide that the FTT may not review certain decisions, may provide that review is exercisable only of the FTT’s own initiative, that an application may be made only on specified grounds or that the power to review of its own initiative is exercisable only on specified grounds.

40.

Section 9(4) provides:

“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.”

41.

Section 9(5) provides that where the FTT sets a decision aside, the FTT must either (a) re-decide the matter concerned, or (b) refer that matter to the Upper Tribunal.

42.

Paragraph 15(1) of Schedule 5 TCEA 2007 provides that rules may make provision for the correction of accidental errors in a decision or record of a decision. Paragraph 15(3) provides that paragraph 15(1) is without prejudice to any power to correct errors or set aside decisions that is exercisable apart from rules made by virtue of this sub-paragraph.

43.

The FTT Rules then set out the procedural rules and requirements applicable to the FTT (Tax Chamber).

44.

Rule 37 provides:

“37.

Clerical mistakes and accidental slips or omissions

The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by -

(a)

sending notification of the amended decision or direction, or a copy of the amended document, to all parties; and

(b)

making any necessary amendment to any information published in relation to the decision, direction or document.”

45.

Rule 40 (Tribunal’s consideration of application for permission to appeal) provides at Rule 40(1) that on receiving an application for permission to appeal the FTT must first consider, taking into account the overriding objective in Rule 2, whether to review the decision in accordance with Rule 41. Rule 41 provides:

“41.

Review of a decision

(1)

The Tribunal may only undertake a review of a decision –

(a)

pursuant to rule 40(1) (review on an application for permission to appeal); and

(b)

if it is satisfied that there was an error of law in the decision.

(2)

The Tribunal must notify the parties in writing of the outcome of any review, unless the Tribunal decides to take no action following the review.

(3)

The Tribunal may not take any action in relation to a decision following a review without first giving every party an opportunity to make representations in relation to the proposed action.”

46.

Rule 36 (Interpretation) provides that “review” means the review of a decision by the FTT under s9.