4.48The appeal may be limited to a final or outcome decision or it may include interlocutory decisions.3See below at 4.174 onwards. Under TCEA s11(1), an appeal lies to the Upper Tribunal on any point of law arising from any decision except an excluded decision. And under section 21(1) of the Employment Tribunals Act 1996, an appeal lies to the Employment Appeal Tribunal ‘from any decision of, or arising in any proceedings before, an employment tribunal’.

4.49The scope of the appeal may be extended by statute to include issues covered by other decisions on which that decision depends. For example: section 84(10) of the Value Added Tax Act 1994 deals with the possibility that a decision under appeal is dependent on an earlier decision that is not appealable. It authorises the tribunal to allow the appeal on the ground that it would have allowed an appeal against the earlier decision.

4.50The right of appeal may cover all aspects of the decision or be more restricted. This may be expressly stated. Otherwise, it is a matter of interpretation. For example: in Retarded Children’s Aid Society Ltd v Barnet London Borough Council,4[1969] 2 QB 22. the Court of Appeal decided that an appeal lay on the issue whether a residential home could be registered, but not in respect of the conditions imposed on registration. And in Jones v Attorney-General,5[1974] Ch 148. an appeal against an order of the Charity Commissioners was held to include an appeal against a report that was an essential step in the statutory process of making the order.6[1974] Ch 148 at 161.

4.51The appeal may not be limited to the grounds on which the decision was based. For example: in Joyce v Secretary of State for Health,7[2009] 1 All ER 1025. a nurse was added to the list of persons considered unsuitable to work with vulnerable adults on the ground of misconduct by sleeping on duty. On appeal, the nurse argued that the tribunal could not take account of any other grounds on which the decision might have been based. Goldring J held that the tribunal was not so limited for a number of reasons, including the purpose of the legislation, the language of the legislation, and the differing nature of the decisions taken by the nurse’s employer, the Secretary of State and the tribunal.8[2009] 1 All ER 1025 at [60]–[70]. Similarly, in Tower MCashback LLP 1 v Revenue and Customers Commissioners,9[2011] 2 AC 457. the Supreme Court held that the Commissioners were not limited to the reasons given in a closure notice.

4.52The appeal may include issues that the decision-maker did not consider when making the decision. In R (Starling) v Child Support Commissioners,10[2008] EWHC 1319 (Admin). the decision-maker had not considered whether an absent parent should be attributed with income as a result of working for an artificially reduced amount of earnings. The absent parent’s solicitor argued that this issue was not within the decision under appeal, as the decision-maker had not been under a duty to consider it when making the decision. Collins J rejected that argument:

4.55The permissible grounds for appeal may be general or limited. A general appeal13This is the expression used by the Franks Committee in The Report of the Committee on Administrative Tribunals and Enquiries Cmnd. 218 (1957) at para 105. allows a decision to be challenged on any grounds, whether related to the facts, the law or the merits (the application of the law to the facts, including the exercise of a judgment or discretion). A limited appeal restricts the grounds on which a decision may be challenged.

4.56The permissible grounds of appeal may be stated more specifically in the legislation setting up a tribunal or in the tribunal’s rules of procedure.14For example: Nationality, Immigration and Asylum Act 2002 s84 and, in substance, Value Added Tax Act 1994 s84(4ZA). This may be achieved indirectly by specifying the form of procedure. For example: section 158(3) and (4) of the National Health Service Act 2006 provides that an appeal shall be by way of redetermination and that any decision may be made that could have been made. In effect, this provides for a general appeal.

4.57The TCEA deals with appeals within the tribunal structure. The ground for appeal to the Upper Tribunal is restricted to ‘any point of law arising from a decision made by the First-tier Tribunal, other than an excluded decision’ (s11(1)). There is equivalent provision for an appeal from the Upper Tribunal to the Court of Appeal (s13(1)). The point of law may be a defect in the decision, in the reasoning on which the decision is based or in the procedure that led to the decision.

4.58The TCEA does not provide for the grounds of an appeal on entry into the tribunal structure, whether the initial appeal is to the First-tier Tribunal or the Upper Tribunal. This is governed by the legislation governing the particular subject matter. The permissible ground of appeal may also be limited to whether the decision met specified criteria,15Foley v Post Office [2000] ICR 1283 (whether the employer acted reasonably or unreasonably). although this may depend on the context.16Contrast Post Office v Jones [2001] ICR 805 at [29] and Collins v Royal National Theatre Board Ltd [2004] 2 All ER 851, interpreting the same words (whether the reasons for the decision were material and substantial) in different subsections.

4.59If the grounds are not specified in the legislation, they have to be determined by interpretation of the relevant legislation and the nature of the proceedings. According to Jones v Attorney-General,17[1974] Ch 148 at 161. it may also be subject to the tribunal’s control over its own procedure. The issue can be difficult.18See the Court of Appeal’s analysis of the Immigration and Asylum Act 1999 s65 and para 21 of Sch 4 in Huang v Secretary of State for the Home Department [2006] QB 1 at [24]–[26] and the House of Lords’ decision at [2007] 2 AC 167. For other examples see: CC & C v Revenue and Customs Commissioners [2015] 1 WLR 4043 at [38]–[47]; Financial Conduct Authority v HFO Services Ltd [2015] UKUT 0118 (AAC) at [74]–[135].

4.60One consideration is whether the body from which the appeal lies satisfies article 6. If it does not, perhaps because the decision-maker is not independent or because there has not been a hearing, the appeal is likely to be general and take the form of a complete rehearing.19This is the approach of CPR: Score Draw Ltd v Finch [2007] EWHC 462 (Ch); (2007) Times 9 April.

4.61Another consideration is whether the issues that might be raised are justiciable. If they are not, the appeal is likely to be limited to scrutiny of the decision on judicial review grounds.20See the approach of the Tribunal of Commissioners in R(H) 6/06 at [39]. This coincides with the line drawn by Stephen Toulmin in The Uses of Argument Cambridge 2003 at 162 as the limit beyond which rational argument is no longer possible. This will be so even if a complete reconsideration is required on human rights grounds, for example if the decision-maker was not independent.

4.62A further consideration is the nature of the decision made by the initial decision-maker. If that is merely an opinion rather than a binding conclusion, this will limit the appeal to the issue whether the decision-maker ‘has made an error of principle or reached a conclusion that is clearly wrong’.21Re DLP Ltd’s Patent [2008] 1 All ER 839 at [22]. And an appeal against a decision that involves an assessment of risk may not allow a tribunal to substitute its own assessment of that risk.22Post Office v Jones [2001] ICR 805 at [24].

4.65The time for consideration is related to the evidence that may be considered. The relevant time may determine the evidence that may be taken into account or the circumstances that may be considered. Conversely, the nature of the appeal may determine whether fresh evidence may be heard on the appeal and this in turn may be relevant to the issues that can be considered by the tribunal.

4.66The legislation may prevent a tribunal from considering circumstances that were not obtaining at the time of the decision under appeal. For example: the Social Security Act 1998 s12(8)(b) and equivalent provisions24Child Support Act 1991 s20(7)(b), Child Support, Pensions and Social Security Act 2000 Sch 7 para 6(9)(b) and Pensions Appeal Tribunals Act 1943 s5B(b). prohibit the First-tier Tribunal from taking ‘into account any circumstance not obtaining at the time when the decision appealed against was made.’25The courts have produced a similar result in cases of professional negligence resulting in loss of a chance to bring litigation, in which the liability of the negligent party has to be determined as at the time of the breach of duty. See Charles v Hugh James Jones and Jenkins (a firm) [2000] 1 WLR 1278 at 1288–1291; Dudarec v Andrews [2006] 1 WLR 3002. As the provision is concerned with circumstances rather than evidence, it is permissible for a tribunal to consider any evidence regardless of when it was produced, provided that it can be related to the relevant time.26R(DLA) 2 and 3/01; Secretary of State for Defence v Rusling [2003] EWHC 1359 QB at [71]–[72]; Omar v City of Westminster [2008] EWCA Civ 421; (2008) Times 25 March at  [32]. Decisions based on the future likelihood of events are based on circumstances obtaining at the time when the decision is made.27Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65.

4.67The legislation may require a tribunal to consider circumstances obtaining at the date of hearing, regardless of whether or not they were obtaining at the time of the decision under appeal. For example: the Nationality, Immigration and Asylum Act 2002 s85(4) provides that the tribunal may consider any relevant matter, including one that arose after the date of the decision.

4.68If the legislation is not explicit, its language may be sufficiently clear on the issue. In Wandsworth London Borough Council v Randall,28[2008] 3 All ER 393. the Court of Appeal was concerned with a possession order against a tenant by succession under a periodic tenancy. The issue was whether the composition of the tenant’s family had to be determined at the time he succeeded to the tenancy or at the time of the hearing. The Court decided that it was the latter. The language was clear in its context and there was nothing to show that Parliament could not have intended this meaning. And in Albion Water Ltd v Dŵr Cymru Cyf,29[2009] 2 All ER 279. the Court of Appeal was concerned with an appeal to the Competition Appeal Tribunal and the scope of the tribunal’s power to ‘make any other decision which the OFT [Office of Fair Trading] could itself have made.’ One issue was whether this authorised the tribunal to make a decision if the OFT could lawfully have done so at the time it made the decision under appeal or to make a decision if it could fairly do so at the time of the hearing on the material then available. The Court decided that it was the latter. It did so despite the statutory institutional structure with an appeal from the decision of the OFT and despite the fact that the tribunal did not have to follow the procedure laid down for the OFT.

4.69Otherwise, the answer may be found, as a matter of interpretation, in the nature of the substantive issue or in the procedures that apply.

4.71This approach may also be taken if the issue is the fitness of a person to practice a profession.31As in Sheikh v Law Society [2005] 4 All ER 717 at [15]. (The decision of the Court of Appeal at [2007] 3 All ER 183 does not affect this point.)

4.72However, this does not apply to issues of liability. In McDougall v Richmond Adult Community College,32[2008] ICR 431. a case under the Disability Discrimination Act 1995, the issue was whether an impairment was likely to recur. The Court of Appeal decided that this had to be determined on the evidence available at the time of the alleged discrimination, because that was the date at which the employer had to decide how to act. Evidence that only became available later could not be taken into account. Whether a wrong had been committed had to be determined on the evidence available at the time the act occurred.

4.74In R (McGinley) v Schilling,34[2005] ICR 1282. the issue was whether disablement for the purposes of a police officer’s injury pension was determined at the time of the initial determination or later at the time of the referral to a medical referee. The Court of Appeal decided that it was to be determined at the later date. May LJ set out the factors pointing to this conclusion:35[2005] ICR 1282 at [34]–[35]. (a) the decision under appeal had not been made by an independent decision-maker; (b) it would be strange if the referee had to make a judgment on disablement at any earlier date; and (c) the governing legislation allowed additional evidence to be admitted on the appeal.

4.75In British Telecommunications plc v Office of Communications,36[2011] 4 All ER 372. the issue was whether the tribunal could consider fresh evidence that had not been before the decision-maker. The Court of Appeal decided that the tribunal had been entitled to admit the fresh evidence. In doing so, it took account of the tribunal’s duty to decide whether the decision under appeal was right on the merits of the case and the tribunal was under a duty to have appropriate expertise available to it.

4.76It does not, though, follow that the decision in a rehearing must always be made as at the date of the appeal rather than of the decision under appeal.

4.77In R v Immigration Appeal Tribunal ex p Weerasuriya,37[1983] 1 All ER 195. the issue was whether an immigration appeal had to be decided as at the time of the Secretary of State’s decision or as at the time of the appeal. Webster J decided that it was the former. He identified the issue as whether the ‘appellate structure has to be regarded as an extension of the original administrative decision-making or whether it is to be regarded as simply a process for enabling that decision to be reviewed.’38[1983] 1 All ER 195 at 201–202 approved by the Court of Appeal in R v Immigration Appeal Tribunal ex p Kotecha [1983] 1 WLR 487 at 492–493.

4.78In contrast, in Ravichandran v Secretary of State for the Home Department,39[1996] Imm AR 97 and (1996) IRA 97. the Court of Appeal decided that an asylum appeal has to be decided on the circumstances obtaining at the date of the appeal, because the appeal is an extension of the decision-making structure. The result, as explained by Laws LJ in A(C) v Secretary of State for the Home Department,40[2004] EWCA Civ 1165. is that the tribunal ‘must … decide what if any relief to grant in the light of the facts arising at the time it is considering the case.’41[2004] EWCA Civ 1165 at [15].

4.79In Omar v City of Westminster,42[2008] EWCA Civ 421; (2008) Times 25 March. the issue was whether it was permissible to take account of a change of circumstances on a review of a homelessness decision by a local authority. The Court of Appeal analysed reviews in these cases according to whether or not the decision-making process was ongoing.43[2008] EWCA Civ 421 at [25]. If the review is part of the decision-making process (eg if the person has accepted an offer of accommodation but challenges its suitability), it can take into account any change of circumstances down to the date of the review. But if the review is not part of the decision-making process (eg if the person has refused an offer of accommodation and the local authority has decided that it has discharged its duty towards that person), it is confined to the facts as they were at the time of the decision under review, whether or not they were known then.

4.80Boreh v London Borough of Ealing44[2009] 2 All ER 383. is an example of the latter. The local authority had offered the homeless claimant a property without any mention of adapting it to her needs. She refused and the local authority warned that it had discharged its duty to house her. The claimant asked for a review. The Court of Appeal held that the reviewing officer could not take account of a later offer to make suitable adaptations.45[2009] 2 All ER 383 at [30].

4.81In R(S) 2/98, a Tribunal of Commissioners confirmed that tribunals dealing with social security appeals had to deal with any issue that arose between the time the decision under appeal was made and the date of the hearing of the appeal. But in doing so they did not treat the tribunal as merely an extension of the original administrative decision-making. This approach was later reversed by section 12(8)(b) of the Social Security Act 1998.46See also: Child Support Act 1991 s20(7)(b); Child Support, Pensions and Social Security 2000 Sch 7 para 6(9)(b); and Pensions Appeal Tribunals Act 1943 s5B(b).

4.82The approach to be taken by Housing Benefit Review Boards was unclear. In R v City of Westminster ex p Mehanne,47[1997] EWHC 1117 (Admin). on judicial review at first instance the judge decided that the Board was required to consider the claimant’s circumstances at the time of the hearing, not at the time of the local authority’s decision. Unfortunately, he did not set out his reasoning, merely referring to the applicant’s skeleton arguments, and on appeal the Court of Appeal48R v City of Westminster Housing Benefit Review Board ex p Mehanne [2000] 1 WLR 16. did not clarify the issue. But in R v Housing Benefit Review Board of the London Borough of Waltham Forest ex p Iqbal,49[1997] EWHC 810 (Admin). again on judicial review at first instance, the judge held that the Board could only take account of circumstances at the date of the local authority’s decision. He was influenced by the express provision allowing the local authority to review its decision for a change of circumstances,50The Commissioner was not influenced by an equivalent provision in R(SB) 1/82 at [9] and [12]. although he admitted that this interpretation did create anomalies.

4.84The legislation may limit the evidence that may be taken into account. For example: regulation 13(2)(a) of the Education (Prohibition from Teaching or Working with Children) Regulations 2003 (repealed) provided that on appeal a tribunal might not take account of information that had not been before the Secretary of State.51Discussed in Secretary of State for Children, Schools and Families v Philliskirk [2009] ELR 68. The legislation may also make it clear that further evidence may be taken into account. For example: under the Charities Act 1993,52Charities Act 1993 Sch 1C para 1(4), inserted by Charities Act 2006 Sch 4. a tribunal must consider afresh the decision under appeal and take account of any new evidence that was not before the decision-maker.

4.85The time as at which a decision has to be made may also limit the evidence that may be taken into account, as only evidence that relates to that time will be relevant.

4.86The nature of the appeal may determine whether evidence may be heard on the appeal. Further evidence can be considered if the proceedings involve rehearing the issues afresh. And if there is no record of the evidence on which a decision was based and the reasons for it, the tribunal is practically compelled to decide the matter afresh.53Edmund Davies LJ in Sagnata Investments Ltd v Norwich Corporation [1971] 2 QB 614 at 634; Rushmoor Borough Council v Richards (1996) Times 5 February; Haw v City of Westminster Magistrates’ Court [2008] QB 888 at [25]. The procedure usually followed by a particular tribunal may determine the nature of proceedings on any new appeal allocated to it. This was the approach of the Tribunal of Commissioners in R(IB) 2/04.54R(IB) 2/04 at [19]–[25]. Rather than reasoning from basic principle, the Tribunal took an historical approach, despite the fact that it was dealing with a newly created appeal tribunal.55See also the reliance on the procedure on appeal to the High Court in Haw v City of Westminster Magistrates’ Court [2008] QB 888 at [25]. This approach may be difficult to apply in the tribunal structure under TCEA where, even within chambers, there may be divergent approaches to different types of case.

4.89The tribunal is not limited to a literal reading of the issues as advanced by the party. It is entitled to extract an issue from grounds of appeal that are nebulously expressed.59Krasniqi v Secretary of State for the Home Department [2006] EWCA Civ 391 at [19]; (2006) Times 20 April. And it may do so even for the benefit of a decision-maker.60[2006] EWCA Civ 391 at [18]–[19].

4.90The legislation may specify the stage of the proceedings at which, or the circumstances in which, an issue may be raised. The stage at which an issue may be raised in a social security case is governed by section 12(8)(a) of the Social Security Act 1998.61See also: Child Support Act 1991 s20(7)(a), the Child Support, Pensions and Social Security Act 2000 Sch 7 para 6(9)(a) and the Pensions Appeal Tribunals Act 1943 s5B(a). It provides that an appeal tribunal under that Act ‘need not consider any issue that is not raised by the appeal’. In R (Starling) v Child Support Commissioners,62[2008] EWHC 1319 (Admin). Collins J described the child support equivalent of this provision as ‘the most ill drafted and obscure provision in the field of child support’.63[2008] EWHC 1319 (Admin) at [36]. It has been interpreted to mean that the issue must be raised at or before the hearing by one of the parties to the proceedings.64R(IB) 2/04 at [32].

4.92Issues of jurisdiction always arise. As Morison J explained in the Employment Appeal Tribunal in Sogbetun v Hackney London Borough Council:66[1998] ICR 1264.

4.94The provision was interpreted differently by the Court of Appeal in Northern Ireland in Mongan v Department for Social Development.72[2005] NICA 16, reported as R3/05 (DLA). The Court decided that any issue that was within the tribunal’s inquisitorial duty was raised by the appeal. The extent of this duty depended on the facts of the case. It did not require an exhaustive trawl through the evidence, but it did require a tribunal to deal with issues that were clearly apparent from the evidence.73[2005] NICA 16 at [14]–[18].

4.95There is a difference between the approach of the Commissioners and the Court of Appeal.74In Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, reported as R(IB) 4/07 at [28], the Court of Appeal endorsed the approach in Mongan, but without being sufficiently specific to resolve the difference identified here. On appeal on an issue of law, a tribunal would not go wrong on the Commissioners’ approach if it exercised its power in a way that it was entitled to do, even if the Commissioner would have exercised it differently. However, on the Court of Appeal’s approach the Commissioner would have to decide whether or not the tribunal was under a duty to consider the issue and would have no power to show any deference to the tribunal’s judgment.

4.96Subject to this, the slightly different interpretations of the legislation produce an effect that is broadly the same as the position that obtains apart from statute. So, before the introduction of the limit to the tribunal’s inquisitorial duty in section 12(8)(a) of the Social Security Act 1998, the Tribunal of Commissioners in R(SB) 2/83 decided that a tribunal did not have to take ‘an uncanvassed factual point … in the absence of the most obvious and clear-cut circumstances.’75R(SB) 2/83 at [11]. This is consistent with the way in which the courts have limited the duty of a tribunal to take an inquisitorial approach on an application for permission to appeal.

4.97Apart from statute, the scope of the tribunal’s duty to consider issues that have not been raised by the parties depends on the extent to which, and circumstances in which, a tribunal is required to be inquisitorial. In Hooper v Secretary of State for Work and Pensions,76[2007] EWCA Civ 495, reported as R(IB) 4/07. the Court of Appeal considered but left open the issue of the extent to which a tribunal had to deal with issues that were not raised by the parties. Dyson LJ distinguished the case of R v Secretary of State for the Home Department ex p Robinson77[1998] QB 929. Discussed in chapter 4. on the ground that it applied to applications for permission to appeal, but suggested that the scope of a tribunal’s inquisitorial duty might be limited by the statutory limits on its jurisdiction (in this case to errors of law).78[1998] QB 929 at [44]–[45]. Thomas LJ considered that the absence of any legal aid might be a relevant factor.79[1998] QB 929 at [59]. And Ward LJ preferred to leave the matter open without any comment.80[1998] QB 929 at [61].

4.99The scope of the tribunal’s power to deal with issues of its own initiative is also governed by the powers of the decision-maker, the nature of the appeal and the tribunal’s powers on the appeal. The Commissioners used these factors to allow any issue to be considered that was within the purview of the original claim for benefit.83R(F) 1/72 at [9], emphasising that the appeal was a rehearing of the whole case, and R(SB) 9/81 at [9], emphasising the powers of the decision-maker and the tribunal.

4.100A tribunal may deal on its own initiative with an issue that involves a point of general importance that concerns the State’s compliance with its international obligations.84Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806; (2008) Times 25 July.

4.102The first way is if the parties have not have raised it before.

4.103In R(F) 1/72, the Commissioner decided that a local tribunal was entitled to take a point against the appellant claimant that had first been raised by the decision-maker on the appeal. The issue related to a provision different from that on which the decision had been based. However, the Commissioner held it could be considered as an appeal to the tribunal and to the Commissioner was ‘a rehearing of the whole case’.85[2008] EWCA Civ 806 at [9].

4.104And in R(SB) 9/81, the Commissioner decided that a tribunal had jurisdiction to consider any issues that were within the purview of the original claim for benefit. In that case, the issues had not been considered by the decision-maker and were not mentioned in the claimant’s letter of appeal to the tribunal. They were first raised by her representative at the hearing before the tribunal. Nonetheless, the tribunal considered the issues and accepted the representative’s argument. The Commissioner held that the tribunal was entitled to do so, emphasising that the tribunal and the Commissioner had power to substitute a decision that the decision-maker could and should have made.86[2008] EWCA Civ 806 at [9].

4.105A party or a representative may not be allowed to raise points that could have been raised earlier. If a tribunal hears a case on appeal as if for the first time, there is no scope for limiting a party to points that have been made already. However, there is scope for this on further appeal to the Upper Tribunal or to a court. In the Court of Appeal in Stanley Cole (Wainfleet) Ltd v Sheridan,87[2003] ICR 1449. Ward LJ said:

4.107However, the Court of Appeal does allow issues to be raised for the first time. In Chief Adjudication Officer v Maguire,91[1999] 1 WLR 1778. it dealt (as the only issue) with a point on which the adjudication officer had specifically made no submission to the Commissioner. It did not explain its decision to deal with the issue, other than to comment that ‘this issue will literally govern thousands of other cases’.92[1999] 1 WLR 1778 at 1780. And in Campbell v South Northamptonshire District Council,93[2004] 3 All ER 387. the Court allowed counsel to raise a human rights issue that he had not put to the Commissioner.94[2004] 3 All ER 387 at [31]. It gave no reason for doing so.

4.108It is difficult to discern any principle governing the choice of whether or not to allow a new issue to be raised.

4.109The second way in which an issue may arise for the first time on an appeal is as a result of the tribunal’s conclusion on another issue. For example: if the decision under appeal was that there was no jurisdiction to decide the case and the tribunal decides that there was jurisdiction, the merits of the case will arise for the first time as a result of that conclusion. Depending on the governing legislation, the tribunal may limit its decision to the issue raised by the appeal, leaving the decision-maker to deal with other issues, or it may deal with those issues itself.95R(IS) 2/08.

4.110The legislation may make express provision prohibiting or authorising issues to be considered for the first time on an appeal. So, section 24(2) of the Child Support Act 1991 provides:

4.112In the absence of express provision, the issue depends on the form of the appeal and the powers of the tribunal.

4.113R(U) 2/54 is an example of the approach taken by the Commissioners before there was any statutory power to deal with questions first arising. The claimant had been disqualified for unemployment benefit on the ground that she had left her employment voluntarily without just cause. The Commissioner commented that if the tribunal had decided that the claimant had not left voluntarily, it was entitled to determine whether she was disqualified on the ground that she had lost her employment through misconduct.100[1973] QB 959 at [8]. That ground for disqualification arose under the same legislative provision.

4.115If the appeal involves a complete reconsideration of the decision, any issue may be raised. As Payne J explained in Blundell v Rimmer:101[1971] 1 WLR 123.

4.120If a concession is made, it remains binding unless it can be withdrawn. It may be withdrawn on appeal, if that can be done without prejudice to the other parties.110Davoodipanah v Secretary of State for the Home Department [2004] EWCA Civ 106; (2004) Times 5 February at [22].

4.121The tribunal is not obliged to accept a concession, especially if it contrary to its inquisitorial role, and it may be consistent with the decision-maker’s non-partisan role to resile from a concession.111LC v Secretary of State for Work and Pensions [2009] UKUT 153 (AAC).

4.123The approach to identifying the scope of the appeal in these cases was set out by Etherton J in Banbury Visionplus Ltd v Revenue and Customs Commissioners.112[2006] STC 1568. The position is this. The scope of the appeal may be made clear in the language of the statute that allows the appeal. In the absence of express provision, any limitation on the scope of the appeal must be apparent from the nature of the decision or the legislative context.113[2006] STC 1568 at [44].

4.124The general approach of the courts has been that the judgment must be exercised afresh on appeal.114As in Secretary of State for Children, Schools and Families v Philliskirk [2009] ELR 68 at [19]. Otherwise, the right of appeal would be rendered illusory115Lord Goddard CJ in Stepney Borough Council v Joffe [1949] 1 KB 599 at 602. or unduly restricted.116Lord Parker CJ in Godfrey v Bournemouth Corporation [1969] 1 WLR 47 at 51.

4.125However, there are cases in which this approach has not been taken. John Dee Ltd v Customs and Excise Commissioners117[1995] STC 941, as explained in Banbury Visionplus Ltd v Revenue and Customs Commissioners [2006] STC 1568 at [39]–[44]. is an example. There it was permissible to require security ‘Where it appears to the Commissioners requisite to do so for the protection of the revenue’. Statute provided for a general appeal ‘with respect to … the requirement of security’. Neill LJ explained the Court of Appeal’s decision:

4.126A fresh exercise of the judgment is also excluded if, exceptionally, a right of appeal is given against a decision that involves a discretion which is non-justiciable. This may be because the discretion involves a consideration of a number of unrelated factors with no indication, in the legislation or the context, of which were relevant. Or it may be because the discretion involves non-legal judgments on considerations of policy, finance or social matters. In these limited circumstances, the right of appeal does not allow a tribunal to substitute its exercise of discretion for that of the decision-maker. It is limited to challenges to the legality of the decision on judicial review grounds.120See the decision of the Tribunal of Commissioners in R(H) 6/06 (especially at [24] and [39]) analysing the decision of an earlier Tribunal of Commissioners in R(H) 3/04. In SC and CW v East Riding of Yorkshire Council (Appeal numbers 2001M113393 and 2001M117503), the President of the Valuation Tribunal for England decided that clear statutory language would be required to achieve this effect (para 20) and that appeals should be decided on normal principles with appropriate deference made to the view of the decision-maker (para 25(2)).

4.127If a discretion (or any other judgment) has to be exercised afresh on appeal, the way in which it was exercised below is not binding, but must be taken into account for whatever it is worth. As Lord Atkin explained in Evans v Bartlam:121[1937] AC 473.

4.128A different approach must be taken if the issue is whether the exercise was wrong in law. The difference was emphasised by Griffiths LJ in C M Van Stillevoldt BV v E L Carriers Inc:124[1983] 1 WLR 207.

4.135The former suggests a precedent fact;134R (A) v Croydon LBC [2009] 1 WLR 2557 at [23]. the latter does not. However, the language has to be interpreted. If a fact is defined in wholly objective terms and defines the limit of a body’s jurisdiction, it is likely to be a jurisdictional fact.135R (A) v Croydon LBC [2009] 1 WLR 2557 at [29]–[32].