Judgment summary
This is a decision on a renewed application for permission to appeal to the Upper Tribunal (Tax and Chancery Chamber). The Applicant, Top-Notch Accountants Limited, sought permission to appeal against a First-tier Tribunal (FTT) decision released on 17 July 2025 (the "2025 Decision"), which had refused the Applicant's application for late permission to appeal an earlier FTT decision dated 2 June 2023 (the "2023 Decision", Top-Notch Accountants Limited v HMRC [2023] UKFTT 00473) and struck out a related notice of appeal (para 1, 6, 14).
Judge Vimal Tilakapala had previously refused permission to appeal on the papers (the "UT Papers Decision"), and the Applicant applied for that decision to be reconsidered at an oral hearing held on 20 May 2026, at which Mr Nazrul Islam appeared for the Applicant and Ms Kim Johnson for HMRC (para 3, 4).
The Upper Tribunal again refused permission to appeal, finding that the FTT was entitled to conclude it had no jurisdiction to review the 2023 Decision because both the FTT and the Upper Tribunal had already determined, in earlier proceedings, that there was no error of law in that decision (para 30, 31, 49).
Background
The 2023 Decision concerned an amount of Coronavirus Support Payment received under the Coronavirus Job Retention Scheme (CJRS) for a particular employee (para 7).
On 4 November 2024 the Applicant lodged a notice described as a "formal request for a review" of the 2023 Decision, allocated reference TC 2024/05851. This was treated by the Tribunal as an application for review of the 2023 Decision and referred to Judge Anne Scott, who had given the 2023 Decision (para 8).
On 8 January 2025 Judge Scott issued directions treating the application as a late application for permission to appeal the 2023 Decision, requiring the Applicant to explain the delay (para 9).
It then emerged that the Applicant had previously made an in-time application for permission to appeal the 2023 Decision, which Judge Scott had refused on 12 July 2023. The Applicant had subsequently applied to the Upper Tribunal for permission, which was refused on the papers by Judge Rupert Jones and refused again following an oral hearing on 17 October 2023, on the basis that there was no arguable error of law and no reasonable prospect of success (para 10, 11, 12).
On 20 March 2025, having regard to this history, Judge Scott issued directions concluding that the Applicant had exhausted its rights of appeal, indicating the appeal was to be struck out under Rules 8(2) and 8(3)(c) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, after giving the Applicant an opportunity to make representations (para 13).
The 2025 Decision, issued on 17 July 2025, refused the Applicant's application for late permission to appeal the 2023 Decision and struck out the 4 November 2024 notice of appeal (para 14).
The Applicant separately appealed to the FTT in respect of CJRS payments to the same employee (the "2024 Appeal", reference TC 2024/0032), relating to assessments issued in July 2023. HMRC applied to strike out the 2024 Appeal but subsequently chose not to defend it, and the 2024 Appeal was allowed (para 20, 21, 22).
Core dispute
The Applicant sought permission to appeal the 2025 Decision, contending that the FTT had erred in law by concluding it had no jurisdiction to review the 2023 Decision without properly engaging with its statutory review powers under Rule 41 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 and Schedule 16 FA 2020 paragraph 15 (para 37).
The Applicant argued that the FTT had failed to identify the specific statutory provision precluding jurisdiction and to explain why its review powers did not apply, and that this amounted to an error of law (para 38).
The Applicant further contended that the allowance of the 2024 Appeal, concerning the same employee and CJRS payments, undermined or was inconsistent with the reasoning in the 2023 Decision, engaging the Tribunal's powers to prevent abuse of process and to secure fair and just disposal of appeals, and that this should have been taken into account on the question of jurisdiction (para 39).
HMRC's position, and the Tribunal's task, concerned whether the FTT had correctly concluded it had no jurisdiction to review the 2023 Decision and whether any arguable error of law arose from the 2025 Decision.
Court findings
The Upper Tribunal held that an appeal to it from the FTT lies only on a point of law under s 11 of the Tribunals, Courts and Enforcement Act 2007, and permission will be granted where there is a realistic prospect of success or some other good reason, per Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 (para 15, 16).
Under Rule 41 of the FTT Rules, the FTT may only undertake a review of a decision if satisfied there was an error of law in it. As both the FTT and the Upper Tribunal had already determined that there was no error of law in the 2023 Decision, the FTT was entitled to conclude it had no jurisdiction to review that decision (para 28, 29, 30, 31).
The Tribunal explained the statutory scheme: s 11(1) confers a right of appeal on a point of law, s 11(3) requires permission, and s 11(4) provides that permission may be given by the FTT or the Upper Tribunal, with Rule 39 of the FTT Rules and Rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 permitting a single renewal to the Upper Tribunal where the FTT refuses permission. There is no statutory provision for return to the FTT once the Upper Tribunal has determined the application, so the refusal is jurisdictional in effect (para 40, 41, 42, 43).
The Tribunal found that although the 2025 Decision did not expressly set out the statutory provisions relied upon, a tribunal's duty is one of adequate explanation, not exhaustive exposition, and the 2025 Decision, read fairly and as a whole, identified the determinative issue, explained the basis for its conclusion, and made clear why the appeal could not proceed (para 44, 45, 46).
The Tribunal found the Applicant's reliance on the 2024 Appeal misconceived, since for the reasons given on jurisdiction there was no live matter before the Tribunal, and the 2024 Appeal and submissions made in it had no bearing on the jurisdictional determination (para 31, 47).
The FTT was also entitled to strike out the appeal under Rule 8(2) for lack of jurisdiction and under Rule 8(3)(c) for no reasonable prospect of success, having given the Applicant the opportunity to make representations, which it did following the March 2025 directions (para 32, 33, 34, 35).
Outcome
The Upper Tribunal concluded that the Applicant had not identified an arguable error of law in the 2025 Decision (para 48).
Permission to appeal was refused (para 49).
Major issues / areas of contention
- Whether the FTT erred in law in concluding it had no jurisdiction to review the 2023 Decision without expressly engaging with its statutory review powers under Rule 41 of the FTT Rules and Schedule 16 FA 2020 paragraph 15
- Whether the FTT's failure to identify the specific statutory provision underpinning its jurisdictional conclusion amounted to an error of law
- Whether the allowance of the separate 2024 Appeal concerning the same employee and CJRS payments should have affected the FTT's jurisdictional determination in respect of the 2023 Decision
- Whether the FTT was entitled to strike out the appeal under Rules 8(2) and 8(3)(c) of the FTT Rules for lack of jurisdiction and no reasonable prospect of success
- Whether, once the FTT and the Upper Tribunal had refused permission to appeal the 2023 Decision, any further right of review or appeal remained available to the Applicant