Guidance on Appealing Upper Tribunal Decisions to the Court of Session
Appealing an Upper Tribunal Scotland Tax Decision to the Court of Session
Most decisions of the Upper Tribunal for Scotland can only be challenged further in the Court of Session on a point of law, not simply because a party disagrees with the outcome. Permission to appeal is required, and where the case is a second appeal from the First-tier Tribunal, a stricter test applies. Some Upper Tribunal decisions are final by law and cannot be appealed onward at all.
- An onward appeal is not automatic and must be based on a legal error, such as using the wrong legal test, misreading legislation, or reaching a legally unsustainable conclusion on the evidence.
- Permission must first be sought from the Upper Tribunal; if refused, a further application for permission can be made to the Court of Session.
- Permission is only granted where there are arguable grounds, and in a second appeal there must also be an important point of principle or practice, or another compelling reason.
- Some decisions are final and cannot be appealed further, including certain rulings on information notices, premises inspections, and refusals of permission for a late appeal or onward appeal.
- If an appeal succeeds, the Court of Session may re-make the decision, send the case back to the Upper Tribunal, or in some second appeals remit it to either tribunal.
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Read the original guidance here:
Guidance on Appealing Upper Tribunal Decisions to the Court of Session
Appealing from the Upper Tribunal for Scotland to the Court of Session
This page explains when a decision of the Upper Tribunal for Scotland can be appealed further to the Court of Session under the Revenue Scotland and Tax Powers Act 2014. The key point is that an onward appeal is not automatic. It is only available on a point of law, and permission is needed. In some cases, no onward appeal is allowed at all.
What this rule is about
The Upper Tribunal for Scotland hears certain tax appeals, including appeals that may have come up from the Tax Chamber of the First-tier Tribunal for Scotland. After the Upper Tribunal has decided a case, a party may want to challenge that decision further.
The law allows most Upper Tribunal decisions to be appealed to the Court of Session, but only in a limited way. The Court of Session is not there to re-hear the whole dispute just because one side disagrees with the result. The appeal must be based on a point of law.
This matters because many disappointed parties assume that a further appeal is simply the next stage in the process. It is not. The right of onward appeal is restricted, and the permission tests are deliberately demanding.
What the official source says
The official guidance says that most decisions of the Upper Tribunal for Scotland can be appealed to the Court of Session by either party, but only on a point of law.
The guidance adds that this can include a decision that does not reasonably reflect the facts and evidence presented. In practice, that does not turn the appeal into a full factual rehearing. It indicates that an error in the tribunal’s treatment of the evidence may amount to a legal error if the decision cannot properly be supported on the material before it.
Permission to appeal is required. The application must first be made to the Upper Tribunal for Scotland. If the Upper Tribunal refuses permission, a further application may be made to the Court of Session.
Permission can only be granted if there are arguable grounds for appeal. The guidance calls this the first appeals test.
Where the onward appeal is a second appeal, meaning an appeal to the Court of Session from the Upper Tribunal where the Upper Tribunal was itself deciding an appeal from the First-tier Tribunal, there is an additional restriction. In that situation, the Upper Tribunal or the Court of Session must also be satisfied that either:
- the appeal would raise an important point of principle or practice, or
- there is some other compelling reason for allowing the appeal to proceed.
The guidance calls this the second appeals test.
The source also identifies certain Upper Tribunal decisions that are final and cannot be appealed to the Court of Session. These include:
- a refusal of permission for the onward appeal;
- certain decisions under sections 125, 126, 127 or 130 of the 2014 Act relating to information notices;
- decisions under section 147 relating to approval of premises inspections;
- decisions on appeals to which section 154 applies, concerning disposal of reviews and appeals relating to information notices; and
- a refusal of permission for a late notice of appeal.
If the Court of Session allows the appeal and quashes the Upper Tribunal’s decision, it may re-make the decision itself, remit the case back to the Upper Tribunal, or make some other order it considers appropriate.
For a second appeal, the Court of Session’s powers are wider in the sense that it may exercise the powers of either tribunal when re-making the decision, and it may remit the case either to the Upper Tribunal or to the First-tier Tribunal.
What this means in practice
The first practical question is whether the complaint is really about law, or only about the tribunal’s view of the facts. A simple disagreement with the tribunal’s conclusion is not enough. The appellant must identify a legal error.
Examples of what may amount to a point of law include:
- applying the wrong legal test;
- misinterpreting legislation;
- failing to take account of something legally relevant;
- taking account of something legally irrelevant; or
- reaching a conclusion that the tribunal could not reasonably have reached on the evidence, if that amounts in law to an error.
The next practical issue is permission. Even if there is a legal point, the appeal does not proceed unless permission is granted. The applicant must show arguable grounds. That means more than a bare complaint, but less than proving the appeal will succeed.
If the case is a second appeal, the hurdle is higher. It is not enough that the case may have been wrongly decided. The appeal must also raise an important point of principle or practice, or there must be some other compelling reason for a further appeal. That reflects the policy that litigation should usually end after one appeal, unless there is a wider reason for another court to intervene.
Another important practical point is that some Upper Tribunal decisions are simply final. If the decision falls within one of the categories listed in the legislation and guidance, the Court of Session has no onward appellate role on that point.
How to analyse it
A sensible way to approach the issue is to ask the following questions in order.
- What exactly is the decision being challenged?
- Is it a type of Upper Tribunal decision that can be appealed at all, or is it one of the categories made final by statute?
- What is the alleged point of law?
- Can that legal point be stated clearly and precisely, rather than as general disagreement with the outcome?
- Are there arguable grounds for saying the Upper Tribunal made that legal error?
- Is this a second appeal from a First-tier Tribunal decision via the Upper Tribunal?
- If it is a second appeal, does the case raise an important point of principle or practice, or is there some other compelling reason for it to proceed?
- If the appeal succeeded, what remedy would realistically be sought: re-making by the Court, or remission to one of the tribunals?
This framework helps separate three different issues that are often blurred together: whether there is any right of onward appeal, whether permission is likely to be granted, and what the Court of Session could actually do if the appeal succeeds.
Example
Illustration: the Upper Tribunal dismisses a tax appeal after deciding that a statutory provision has a particular meaning. The taxpayer says the tribunal interpreted the legislation wrongly. That is potentially a point of law. The taxpayer must first ask the Upper Tribunal for permission to appeal to the Court of Session. If the Upper Tribunal refuses, the taxpayer may apply to the Court of Session for permission.
If this was already an appeal from the First-tier Tribunal, it is a second appeal. In that case, the taxpayer must do more than show an arguable legal error. The taxpayer must also show that the case raises an important point of principle or practice, or that there is some other compelling reason for a further appeal.
By contrast, if the taxpayer merely says that the tribunal should have preferred one witness’s evidence over another’s, that will usually be much harder to frame as a point of law unless the complaint is really that the tribunal’s factual conclusion was legally unsustainable.
Why this can be difficult in practice
The hardest issue is often distinguishing a true point of law from a challenge to factual findings. Tribunal decisions usually involve a mixture of law, fact, and evaluative judgment. A party may feel that the tribunal “got the facts wrong”, but that does not automatically create an appealable legal issue.
The guidance’s statement that a point of law can include a decision that does not reasonably reflect the facts and evidence should be read carefully. It does not mean the Court of Session will simply revisit the evidence because another view was possible. The complaint still needs to amount to a legal failing in the tribunal’s reasoning or conclusion.
Another difficulty is the second appeals test. Whether a point is an “important point of principle or practice” or whether there is “some other compelling reason” can be highly fact-sensitive. The source gives the test, but not a detailed checklist for applying it. In practice, this usually requires careful attention to whether the issue matters beyond the individual case, or whether something has gone seriously wrong in a way that justifies a further appeal.
There can also be confusion about final decisions. Some procedural and investigatory decisions under the 2014 Act are expressly insulated from onward appeal. The statutory category matters more than the practical importance of the decision to the parties.
Key takeaways
- Most Upper Tribunal for Scotland decisions can be appealed to the Court of Session only on a point of law.
- Permission is required, and in a second appeal there is an additional, stricter test.
- Some Upper Tribunal decisions are final by statute and cannot be appealed onward at all.
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Useful article? You may find it helpful to read the original guidance here: Guidance on Appealing Upper Tribunal Decisions to the Court of Session
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