Judgment summary
This is a decision on an application for permission to appeal to the Upper Tribunal (Tax and Chancery Chamber), following a hearing on 27 March 2026 (para 27, heading). Mr Strange sought permission to appeal against a First-tier Tribunal (Tax Chamber) decision issued on 6 March 2025 which had refused his appeal against a Personal Liability Notice (para 1).
The Judge had previously considered the application on the papers and granted permission on Ground 1 only, refusing permission on Grounds 2 to 4 (para 2). Mr Strange requested reconsideration at an oral hearing, which he attended as a litigant in person; HMRC did not attend or make submissions (para 3).
At the oral hearing, Mr Strange sought to amend Grounds 2 to 4, explaining an underlying reason not previously set out in the written grounds, namely that the telephone conversation note relied on by the FTT did not accurately or fairly reflect the conversation with the HMRC officer (paras 18 to 19). The Judge allowed the amendment (para 20) but, having reviewed the Bundle and other communications, refused permission to appeal on the amended grounds (paras 21 to 29).
Permission to appeal was confirmed as granted on Ground 1 only, and refused on Grounds 2 to 4 both as originally submitted and as amended (para 30).
Background
On 11 December 2019, HMRC issued Mr Strange with a Personal Liability Notice (PLN) under section 121C of the Social Security Act 1992, on the basis that his company, S&M Property Maintenance Scotland Limited, had underpaid National Insurance Contributions (NICs) and that the underpayments were attributable to Mr Strange's neglect (para 6).
Mr Strange appealed the PLN to the FTT. The hearing took place on 18 July 2025. Mr Strange did not attend, for reasons he explained to the FTT, but the hearing proceeded in his absence and the FTT decided the appeal against him (para 7). Ground 1 of the application, that it was an error of law to hold the hearing in his absence, was found arguable and permission was granted on that ground (para 8).
The HMRC Officer responsible for the enquiry, Officer Bhazad Mustafa, had called Mr Strange on 17 September 2019 (para 9). Officer Mustafa made a note of the conversation, covering matters including cash flow problems, a time to pay arrangement not complied with, borrowing from family and friends, and awareness of the PAYE/NIC obligation (para 10).
Officer Mustafa sent the notes to Mr Strange by email dated 20 September 2019 asking him to confirm their content, and Mr Strange replied on 3 October 2019 stating he did not feel he could add anything other than to reiterate he had not acted deliberately (paras 11 to 12, citing Decision paras 38 to 39). When appealing to HMRC against the PLN, Mr Strange said the everyday workings of the business were perhaps not explained fully on the initial call, and gave a detailed explanation of the cash flow problems (para 12, citing Decision para 45).
Officer Mustafa did not attend the FTT hearing but provided a witness statement, which the FTT decided to disregard under the overriding objective at Rule 2 of the Tribunal Rules because he could not confirm it (para 13, citing Decision para 106). The FTT instead relied on other evidence in the Bundle, including the telephone conversation note and Mr Strange's confirmatory email (para 14).
Core dispute
Mr Strange, instructing a lawyer to draft his grounds, argued in Grounds 2 to 4 that the FTT erred in law by relying on evidence connected to Officer Mustafa despite his absence from the hearing, in alleged breach of Article 6 ECHR and Rule 15(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, and that HMRC's case was left without a proper evidential foundation as a result (paras 15).
The Judge had refused permission on these grounds on the papers, on the basis that the FTT had not relied on Officer Mustafa's witness statement, and that the telephone conversation notes it did rely on had been confirmed as correct by Mr Strange (para 16). Mr Strange asked for these grounds to be reconsidered at the oral hearing (para 17).
At the oral hearing, Mr Strange sought to amend the grounds, contending that the telephone conversation note did not accurately or fairly reflect what had passed between him and Officer Mustafa, that leading questions had been asked and only some answers recorded, that he had been told the call would be recorded, that he had repeatedly asked for a transcript without success, and that related correspondence might be in the Bundle (para 18). This was framed as an argument that the FTT had failed to take into account a matter which no properly instructed tribunal would have left out of account, per Aria v HMRC [2018] UKUT 363 (TC) at [29], citing Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 229 (para 19).
Court findings
The Judge allowed the amendment to Grounds 2 to 4 as being in the interests of justice, since it underpinned the grounds already the subject of the application (para 20).
Having obtained a copy of the Bundle from HMRC after Mr Strange could not locate his own copy, the Judge found no reference in the documents to Mr Strange having asked for a transcript of the telephone call, so the FTT could not have taken such a request into account and there was no error of law in that regard (paras 21 to 22).
The only reference to Mr Strange challenging the telephone call note was in his Grounds of Appeal to the FTT, which stated that the case officer used his words and came to the wrong conclusions, and that in his haste he agreed he was responsible for the debt but the surrounding situation had not been considered (para 23). The Judge found this showed Mr Strange was challenging the conclusions drawn by Officer Mustafa, not the accuracy or completeness of the record itself, and that the FTT could not reasonably have inferred an intention to challenge the accuracy of the note (paras 24 to 25).
An email from Mr Strange to the Tribunal Service dated 21 February 2025, referenced at Decision para 4, stated that he had not submitted evidence or called witnesses because he was relying on cross-examining the HMRC witness, but this did not indicate that he considered the recording should have been provided or that it would show the note was incomplete or incorrect (paras 26 to 27). The Judge concluded it was entirely reasonable that the FTT did not realise Mr Strange wished to challenge the accuracy or completeness of the telephone conversation record (para 28).
Outcome
The Judge concluded that Mr Strange's amendment to Grounds 2 to 4 did not identify any error of law in the Decision, and permission to appeal on those grounds was refused (para 29).
Overall, permission to appeal to the Upper Tribunal was granted on Ground 1 and refused on the other three Grounds, both as originally submitted and as amended during the hearing (para 30).
Major issues / areas of contention
- Whether it was an error of law for the FTT to proceed with the hearing on 18 July 2025 in Mr Strange's absence (Ground 1, permission granted, para 8).
- Whether the FTT erred in law by relying on evidence connected to an HMRC officer who did not attend the hearing, allegedly breaching Article 6 ECHR (Ground 2, permission refused, paras 15 to 17).
- Whether the FTT should have excluded evidence under Rule 15(2)(a) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 because the key witness was not available for cross-examination (Ground 3, permission refused, paras 15 to 17).
- Whether HMRC's case lacked a proper evidential foundation because the officer's evidence was untested by cross-examination (Ground 4, permission refused, paras 15 to 17).
- Whether the FTT failed to take into account a matter which no properly instructed tribunal would have left out of account, namely that the telephone conversation note may not have accurately or fairly reflected the call between Mr Strange and Officer Mustafa (amended Grounds, permission refused, paras 18 to 29).