John Strange v The Commissioners for HMRC

An appeal from the First-tier Tribunal lies only on a point of law. Permission should be granted where the proposed ground discloses an arguable and material error of law, or another compelling reason. A tribunal may rely on a contemporaneous record of a telephone conversation where the appellant confirmed its accuracy and did not sufficiently indicate that its completeness or accuracy was challenged. A complaint that the tribunal failed to consider material evidence requires a clear basis showing that the tribunal was properly alerted to that evidence and its significance.

The First-tier Tribunal refused John Strange’s appeal against a personal liability notice issued under section 121C of the Social Security Act 1992 in respect of his company’s unpaid National Insurance Contributions. It later refused permission to appeal.

The Upper Tribunal granted permission on Ground 1, concerning the decision to proceed with the FTT hearing in Mr Strange’s absence. It reconsidered Grounds 2 to 4 at an oral hearing. Those grounds challenged reliance on an HMRC officer’s evidence, including a note of a telephone conversation, and alleged that the FTT had failed to consider the absence of a recording and the alleged incompleteness of the note.

1. An appeal from the FTT to the UT lies only on a point of law under section 11 of the Tribunals, Courts and Enforcement Act 2007. Permission is ordinarily granted where the proposed ground discloses an arguable error of law material to the outcome, or another compelling reason, as explained in Spirit Motor Company v HMRC [2024] UKUT 00230 (TCC).

2. Ground 2 did not establish an error of law. The FTT had disregarded Officer Mustafa’s witness statement because he did not attend to confirm it. The FTT relied instead on other evidence, including the note of the telephone conversation, which Mr Strange had read and confirmed by email, stating that he had nothing to add.

3. Ground 3 was unarguable. In the circumstances, the FTT was entitled to rely on the confirmed note. Ground 4 also failed because the FTT’s decision was based on evidence other than the disregarded witness statement.

4. The amended grounds alleged that the FTT had failed to take account of a matter which no properly instructed tribunal could have left out of account, applying Aria v HMRC [2018] UKUT 363 (TC) by reference to Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. The documents before the UT contained no request for a transcript. The FTT grounds challenged the conclusions drawn from the conversation, rather than the accuracy or completeness of the note. Mr Strange’s later email mentioned the absence of a recording and his wish to cross-examine the officer, but did not explain that the recording was sought because it would demonstrate that the note was incomplete or inaccurate.

5. Given that limited information, the FTT had not been alerted to the alleged evidential issue. The amended Grounds 2 to 4 therefore disclosed no error of law. Permission was refused on Grounds 2 to 4, both as originally submitted and as amended. Permission remained granted on Ground 1.

• First-tier Tribunal (Tax Chamber): refused Mr Strange’s appeal against the personal liability notice on 6 March 2025 and subsequently refused permission to appeal.
• Upper Tribunal (Tax and Chancery Chamber): granted permission on Ground 1 but refused permission on Grounds 2 to 4.