Pensions analysis: The First-Tier Tribunal (‘the Tribunal’) has ruled that the Pensions Regulator (TPR) acted ‘unfairly’ in issuing a penalty to a building company (‘the Appellant company.’) for failing to comply with its automatic enrolment duties in compliance with workplace pension law under the Pensions Act 2008 (PA 2008). The Tribunal found that having satisfied itself that the precondition for issuing a penalty had been met, TPR then declined the opportunity to consider the evidence and argument put forward on behalf of the Appellant company. The Tribunal commented that TPR entirely discounted the alleged facts without either seeking confirmation of the facts as alleged, nor querying their veracity and weight. In taking this approach, TPR was said to have ignored the newness and scale of the company, the possible impact of the ‘extraordinary’ coronavirus (COVID-19) pandemic on such a small, new organisation, as well as ignoring the statement of the impact of a bereavement. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square Chambers.

Construction analysis: In March 2025, a transcript of the first (and to date, only) judgment awarding a building liability order (BLO) under the Building Safety Act 2022 (BSA 2022) became available. That judgment was given ex tempore by Jefford J at a consequential hearing (BLO Judgment) following trial in 381 Southwark Park Road RTM Company Ltd v Click St Andrews Ltd [2024] EWHC 3179 (TCC) (Trial Judgment). At the consequential hearing, Mrs Justice Jefford also awarded the claimants the first (and to date, only) Information Orders under BSA 2022, s 132. The Information Orders were made against multiple parties, including the defendants at trial and a third party subsidiary suspected of receiving assets at an undervalue from within the same corporate group. A far-reaching order was granted including full details of the consideration given in respect of share ownership in the subsidiary, the personal benefits received by the holding company’s shareholders and full details of the subsidiary’s current financial position. (The Information Orders judgment was transcribed separately and is expected to be published imminently.) Written by Michael Levenstein, barrister at Gatehouse Chambers and member of Lexis+ Construction’s Consulting Editorial Board, who acted for the successful claimants.

Procedure This table sets out a summary of certain procedural rules but in any such appeal the full rules should be reviewed to ensure that procedural requirements are fully met. CA 2011 empowers the Tribunal to make authorised costs orders in respect of Tribunal proceedings. See Charity litigation—costs for further information. Consideration would need to be given to how any application for costs dovetails with the appeal procedure. All references in the table below are to rules (referred to as 'R' or 'r') within the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 (SI 2009/1976), unless otherwise stated. The rules apply to proceedings before the General Regulatory Chamber of the First-tier Tribunal as set out in r 1 generally (and see r 21). Procedural step Rule 1 The appellant receives a Charity Commission decision and decides whether to appeal.Note the overriding objective and obligation to cooperate with the tribunal in the case of any appeal as set out in rr 2 and 3. SI 2009/1976, rr 1-3 2 The appellant

The First-tier Tribunal (Environment) (the Tribunal) was established in 2010 as part of the General Regulatory Chamber (GRC), one of seven Chambers of the First Tier Tribunal in England and Wales. The GRC hears a variety of appeals against decisions by public bodies including cases relating to charities, exam boards, food safety and welfare of animals. In terms of the environment, where a person (including a company) disagrees with a civil sanction or notice served upon them, they can appeal to the GRC of the Tribunal. The Tribunal does not deal with: • criminal offences, which should generally be pursued through the criminal courts; or • complaints against the regulator which should be dealt with by the regulator itself through its internal complaints procedure, or via the Local Ombudsman; or, if the allegation relates to an unlawful decision, act or omission by way of judicial review (see Practice Note: Judicial review—environmental matters) In the Tribunal, appellants have their cases heard by specialists trained to hear their specific appeals. A panel normally composed of the

The President of the First-tier Tribunal (Immigration and Asylum Chamber), Michael Clements, has issued a new Presidential Guidance Note (No 2 of 2022), dated 21 March 2022. It includes guidance on whether to make an anonymity order prohibiting the disclosure or publication of documents and information, including the involvement of children in cases, allegations of serious offences, appeals and more.

Local Government analysis: The First-tier Tribunal (Mental Health) (FTT) reviews the cases of patients detained under the Mental Health Act 1983 (MeHA 1983). This judgment provides a helpful precedent for practitioners seeking to rely on the full scope of the tribunal’s powers when considering statutory recommendations for leave. The Upper Tribunal (UT) confirmed that the FTT is entitled to recommend that a patient be granted unescorted leave under MeHA 1983, s 72(3) where such a recommendation would assist in facilitating discharge. Crucially this power is not limited by the fact that a responsible clinician has already granted leave under MeHA 1983, s 17 which authorises temporary absence from hospital. Written by Clive Adams, partner and Zack Plunkett, graduate solicitor apprentice at Birketts LLP.

With effect from 18 January 2010 the First-tier Tribunal has assumed the role and functions of the former Adjudication Panel for England ie to determine references and appeals concerning the conduct of members of local authorities under the Local Government Act 2000, pt III.

Property analysis: What is the appropriate procedure to use where there is a boundary dispute?

Pensions analysis: The First-tier Tribunal (Tax Chamber) has handed down its judgment in respect of an appeal brought against a decision by HMRC to refuse to discharge an unauthorised payments surcharge on the ground that it was not just and reasonable for the appellant to be liable for the surcharge. HMRC initially considered that a transfer of £18,309 was an unauthorised member payment from the appellant’s pension pursuant to the regime for pension tax relief and charges in Part 4 of the Finance Act 2004 (FA 2004). HMRC enquired into the appellant’s tax return for 2017–18 and issued a closure notice which charged the appellant, Mr Foulkes, an unauthorised payments charge and an unauthorised payments surcharge in respect of a loan. Mr Foulkes notified his appeal to the First-tier Tribunal against HMRC’s decision on 20 August 2022. The First-tier Tribunal allowed the appeal in part and reduced both the unauthorised payments charge and the unauthorised payments surcharge. Written by Rowena Wisniewska Sethi, barrister at 4-5 Gray’s Inn Square.

Pensions analysis: The First-tier Tribunal (Tax Chamber) has handed down its judgment in respect of an appeal brought against two ‘discovery’ assessments issued by HMRC using its powers under section 29 of the Taxes Management Act 1970 (TMA 1970) in respect of unauthorised pension scheme payments and against an unauthorised payment surcharge under section 209 of the Finance Act 2004 (FA 2004). HMRC had earlier refused to discharge the surcharge pursuant to FA 2004, s 268. The Tribunal dismissed the appeal on the basis that it found the assessments were validly issued and that there were no grounds on which to discharge Mr Trachtenberg’s liability to the section 209 surcharge. Written by Rowena Wisniewska Sethi, barrister and Benedict Scantlebury, pupil at 4-5 Gray’s Inn Square.

Tax analysis: In Alan Pontin and others v HMRC, the First-tier Tax Tribunal (FTT) allowed the taxpayers’ appeals and held that a company which was actively preparing a substantial residential development was a ‘trading company’ for the purposes of entrepreneurs’ relief (now business asset disposal relief). Although the company’s only income stream during the relevant period was rental income from lettings of the property, its non-trading activities were not carried on to a substantial extent and therefore did not preclude a claim for relief.

Pensions analysis: The First-tier Tribunal (FTT) erred when it misunderstood what was meant by the ‘commercial context’ of certain contracts under which employers had transferred assets to their small self-administered pension schemes, that HMRC had assessed as unauthorised employer payments, and which had given rise to unauthorised payment charges and surcharges. HMRC had assessed the appellant to scheme sanction charges. The time limit for making an application under section 268 of the Finance Act 2004 (FA 2004) to be discharged from a scheme sanction charge ran from the end of the accounting period in which the liability to the charge arose, not from the end of the year of assessment in which the assessment had been made. The FTT made no error of law in finding that the appellant did not reasonably believe that certain unauthorised payments were not scheme chargeable payments and there was no basis to interfere with its decision that it would be just and reasonable for the scheme administrator to be liable to the scheme sanction charge. Written by Scott Redpath, barrister at Temple Tax Chambers.