RSTP6011 - Onward appeal from Upper Tribunal for Scotland

RSTP6011 - Onward appeal from Upper Tribunal for Scotland

Most decisions of the Upper Tribunal for Scotland can be appealed to the Court of Session (sitting as the Court of Exchequer) by a party in the case (that is, you or us) but only on a point of law. This could include a decision by the Upper Tribunal for Scotland which does not reasonably reflect the facts and evidence presented.

The appeal needs the permission of either the Upper Tribunal for Scotland or, if the Upper Tribunal for Scotland refuses, the Court of Session. Such permission can only be given if the Upper Tribunal for Scotland or (as the case may be) the Court of Session is satisfied that there are arguable grounds for the appeal. This is the ‘first appeals test’.

In this context and in the case of a second appeal (an onward appeal to the Court of Session from the Upper Tribunal for Scotland, where the decision being appealed was itself a decision on an appeal from the Tax Chamber of the First-tier Tribunal for Scotland), the Upper Tribunal for Scotland or (as the case may be) the Court of Session must also be satisfied that, in relation to the matter in question, either:

• a second appeal would raise an important point of principle or practice; or
• there is some other compelling reason for allowing a second appeal to proceed.

This is the ‘second appeals test’.

An application for permission to appeal to the Court of Session must be made to the Upper Tribunal for Scotland.

If permission is refused by the Upper Tribunal for Scotland, you must make a further application for permission (should you choose to do so) to the Court of Session.

Further guidance on how to seek the permission of either the Upper Tribunal for Scotland or the Court of Session (whichever applies) in these circumstances is available on the Scottish Tribunals website, or you can email the Scottish Tribunals at: taxchamber@scotcourtstribunals.gov.uk.

The following decisions of the Upper Tribunal for Scotland are final and cannot be appealed on a point of law to the Court of Session:

• a refusal of permission for the onward appeal (see above);
• a decision of the tribunal under section 125, 126, 127 or 130 of the RSTPA 2014 relating to information notices (see RSTP2006, RSTP2007 and RSTP2008);
• a decision of the tribunal under section 147 of the RSTPA 2014 relating to approvals of premises inspections (see RSTP2026);
• a decision of the tribunal on an appeal to which section 154 of the RSTPA 2014 applies, disposal of reviews and appeals relating to information notices (see RSTP6006 and RSTP6008);
• a refusal of permission by the tribunal for a late notice of appeal (see RSTP6008).

The Court of Session may uphold or quash the decision of the point of law in question as it sees fit. If the Court of Session quashes the decision it may:

• re-make the decision, in which case it may do anything the Upper Tribunal for Scotland could do if re-making the decision* or reach such findings in fact as the Court considers appropriate;
• remit the case to the Upper Tribunal for Scotland*, in which case it may give directions for the Upper Tribunal for Scotland’s re-consideration of the case. Such directions may relate to issues of law or fact (including the Court’s opinion on any relevant point) or procedural issues (including as to the members to be chosen to reconsider the case); or
• make such other order as the Court considers appropriate.

In relation to a second appeal (an onward appeal to the Court of Session from the Upper Tribunal for Scotland, where the decision being appealed was itself a decision on an appeal from the Tax Chamber of the First-tier Tribunal for Scotland), references to the Upper Tribunal for Scotland include, as alternative references, the Tax Chamber of the First-tier Tribunal for Scotland. This means that, in the case of a second appeal, the Court of Session:

• has the powers of either tribunal if remaking the decision that is appealed; and
• can also remit the case either to the Upper Tribunal for Scotland or the Tax Chamber of the First-tier Tribunal for Scotland.

In the case of a second appeal and where the Court of Session remits the case to the Upper Tribunal for Scotland instead of the Tax Chamber of the First-tier Tribunal for Scotland, the Upper Tribunal for Scotland (instead of re-considering the case itself) may remit the case to the Tax Chamber of the First-tier Tribunal for Scotland.

Where the Upper Tribunal for Scotland does so, it must send to the Tax Chamber of the First-tier Tribunal for Scotland any directions given to it by the Court of Session when the Court remitted the case to the Upper Tribunal for Scotland.

Further appeals may be competent in certain circumstances to the UK Supreme Court, the Court of Justice of the European Union or the European Court of Human Rights.

RSTPA 2014 sections 36-38