UT (Tax & Chancery) UT/000097/2023 - [2025] UKUT 00211 (TCC)

This part of my decision should be read together with my decision to direct a preliminary issue, published with neutral citation [2025] UKUT 00034 (TCC).

The Applicant says that the Authority’s decision not to pursue the penalty does not affect the scope of the preliminary issue even if permission is granted to amend the statement of case. That is because the Applicant’s referral and his reply to the Authority’s statement of case alleges that the Authority discriminated against him in initiating and continuing the enforcement proceedings, including proceedings for the penalty. It remains the Applicant’s case that the Authority breached the Equality Act 2010 by imposing the penalty and in maintaining the penalty. The discrimination alleged in relation to the penalty is not “undone” by the Authority’s decision not to pursue the penalty. The Tribunal will still have to determine as part of the reference whether the Authority breached section 53 Equality Act in this regard.

In considering this application I shall assume that permission to amend the Authority’s statement of case has taken effect and the Tribunal has consented to the withdrawal of its case on the penalty.

On the basis that the Authority is not pursuing the penalty, it cannot be said that it is subjecting the Applicant to a detriment which falls within section 53(2)(c) Equality Act 2010 in relation to the penalty. It may be the case that it had sought to subject the Applicant to a detriment, but that is now historical. Unless the penalty is part of the proceedings, the Tribunal would have no jurisdiction to consider whether there had been a breach of the Authority’s obligations under section 53(2)(c) in respect of the penalty. The Tribunal has no freestanding jurisdiction under the Equality Act 2010 or otherwise to consider whether there has been a breach, to provide a remedy for any breach or to make any declaration in that regard. I agree with the Authority that whether the Authority was acting as a “Qualifications Body” within section 54 in seeking to impose a penalty, which it is now not pursuing, would be irrelevant to the question of whether it was acting as such and in breach of section 53(2) in deciding to impose a prohibition.

I did not appreciate, until a draft of this decision was circulated to the parties, that if section 53 is engaged then the parties agree that a prohibition amounts to a detriment within section 53(2)(c) as well as the withdrawal of a qualification within section 53(2)(a). I amended paragraph 32 accordingly, but those amendments do not affect my reasoning.

The Applicant says this is an “entirely conventional discrimination claim” and there is nothing hypothetical about it. I do not accept that submission. In my view the question of whether the Applicant was acting as a “Qualifications Body” within the meaning of section 54 in seeking to impose a penalty is now of academic interest only in these proceedings. There is no good reason to determine an issue that has no relevance to the continuing proceedings against the prohibition.

The Applicant says that the past conduct of the Authority is bound to be relevant in determining whether the present reference is justified. I can accept that if the Applicant is successful on the preliminary issue in relation to the prohibition, then in establishing discrimination it may be that evidence of discrimination in relation to the penalty is relevant. However, that does not mean that there is any need to determine whether the Authority was acting as a Qualifications Body in purporting to impose the penalty on the Applicant.

In the circumstances, I direct that the preliminary issue shall be amended in accordance with the draft attached to the application.