How to make a reference to the Upper Tribunal (Tax and Chancery) about a financial services decision

Question 1

About this guide

Accepted Answer

This guide is for making a reference to the Upper Tribunal about a decision made by:

the Financial Conduct Authority
the Prudential Regulation Authority
the Pensions Regulator
the Bank of England
an independent valuer appointed under the Banking (Special Provisions) Act 2008 or the Banking Act 2009

Making a reference to the Upper Tribunal is similar to appealing a decision. When you refer a decision made by one of these bodies, they become the ‘respondent’ to that reference.

You can refer a decision made by one of the listed organisations directly to the Upper Tribunal – you do not need to ask for permission from the First-tier Tribunal.

This guide does not cover every situation, nor does it provide a full explanation of the procedural rules.

You should also read our main guide for making an appeal to the Upper Tribunal (Tax and Chancery).

About the tribunal

The Upper Tribunal (Tax and Chancery) hears references about decisions made and notices issued by the respondent bodies listed at the start of this guide. Such decisions and notices include:

authorisation and permission to perform functions in relation to regulated activities
penalties for market abuse
disciplinary measures
official listings of shares
suspension or prohibition of a pension trustee
imposition of a pension contributory notice
winding up a pension scheme
freezing a pension scheme

The tribunal is made up of specialist judges appointed by the Lord Chancellor who are independent of, and have no connection to, the respondents.

The tribunal is supported by the tribunal office, who prepare case files for judges, arrange hearings and deal with correspondence. The office is based in London.

Question 2

Who can make a reference

Accepted Answer

You can make a reference yourself, or appoint a representative to act on your behalf, if:

the decision made by the respondent body was addressed to you
there is a right within the law to make a reference

The decision notice the respondent body will have sent you will explain your right to refer the decision.

In some cases, you will be able to refer a decision which is not addressed to you but that affects you – for example, if you are a business partner, employee or pension beneficiary of the person named in the decision. You will need to satisfy the Upper Tribunal that you are affected to an extent which justifies your reference.

Appoint a representative

You may appoint a representative to:

help you complete and submit your reference notice
deal with letters from the tribunal office
make and respond to submissions
appear in front of the judge for you if there is an in-person or video hearing

You can appoint a solicitor, an accountant, or any other person (qualified or not) to act as your representative, such as family member or friend.

If you have a representative, you must send the tribunal office written notice of your representative’s name and address. You can do this either in the reference notice or, if you have already sent the notice, by letter, email or using the HMCTS E-Filing service.

If they stop representing you, you must tell the tribunal office, otherwise it will assume that you are still represented and will send documents to the representative, not to you.

Even if you do not have a representative to help you with the initial stages of your case, you can bring another person to any in-person or video hearing. With the judge’s permission, that person can act as your representative or assist you to present your case at the hearing.

Help with legal assistance

There is a legal assistance scheme for appeals and references by individuals in respect of market abuse penalties imposed by the Financial Conduct Authority.

If you believe you may not be able to afford the legal costs of such a reference, you might be eligible for help with legal assistance. You should select the relevant option in the supplementary applications section of the form. The tribunal office will send you further information.

If you are not eligible, you can still seek advice from a solicitor.

Question 3

How to make a reference

Accepted Answer

Download the make a reference to the Upper Tribunal (Tax and Chancery) form (FTC3)

The form is also referred to as the ‘reference notice’.

You or a representative must be complete and sign the form and send it to the tribunal office. You must include a copy of the decision you are challenging.

Alternatively, you can submit the form using the HMCTS E-Filing service. If you have appointed a professional representative, they must use E-Filing to submit the form.

You must also send a copy of the form and decision to the respondent that made the decision you wish to refer.

The form must include your name and address, and the name and address of your representative, if you have one. The address where you expect correspondence to be sent must be within the UK.

The tribunal must receive the form no later than 28 days from the date you received the decision notice from the respondent.

If you are late in sending your form, you must ask for a time extension and explain why your application was not made in time. There is a place in the form to include this. However, unless the judge grants you the extra time, your application will not be accepted, and you will not be able to continue.

Reasons for referring the decision

You must include in the form the issues you wish the tribunal to consider and explain why you are referring the decision to the Upper Tribunal.

This must include the reasons why you believe the decision to be wrong. Examples of such reasons include the:

respondent did not apply the correct law or wrongly interpreted the law
decision is factually incorrect
respondent had no evidence, or not enough evidence, to support their decision
respondent made a procedural error – this is where something has gone wrong with the process the respondent used to make the decision

You must provide the full details of why you believe these reasons, or any others you have, to be true.

If you are unsure whether the decision was wrong, you may wish to seek professional legal advice.

You will also have in the form an opportunity to apply for specific directions. These are instructions that the tribunal can give to any party in the case following their decision.

Costs

There is no fee to make a reference or appeal to the tribunal about financial services decisions.

However, the tribunal may order you to pay the respondent’s costs if it considers that you, or your representative, have acted unreasonably. The tribunal can also order the respondent to pay your fees if it considers the respondent has acted unreasonably.

You will have to pay the fees of your professional representative, if you have one.

Question 4

What happens next

Accepted Answer

The tribunal will review your reference notice to make sure it includes all the required information and has been received in time. If you have not met all the requirements, the tribunal will not accept it.

If the tribunal has accepted your appeal application, the office will send you and the respondent a notification with the date of acceptance and a reference number. You must quote this reference number whenever you contact the tribunal.

The respondent then has 28 days to send you and the tribunal a ‘statement of case’, explaining the reasons for the decision. This is a document with the facts and matters supporting the decision. It must include a list of the documents on which it relied and of any other relevant documents it has. You may ask the respondent for copies of any document.

You have 28 days from the date you receive the statement of case to send a written reply to the respondent and the tribunal. Your reply should identify everything in the statement of case you disagree with and why. You must also send a list of all the documents you intend to rely on.

The reference will then be considered by a judge, who will decide whether there should be a preliminary hearing to decide on the further steps to be taken before the reference is heard. In the more straightforward cases, the judge may decide the reference should go straight to a final hearing. If you think there should be a preliminary hearing, you should say why when sending your reply to the tribunal.

Withdraw a reference

If you want to withdraw your reference, you will need the agreement of the tribunal. You should write to the tribunal by post or email explaining your reasons for wanting to withdraw. If you withdraw, you will not be able to reinstate the case later.

If someone else affected by the decision made the reference, you cannot withdraw from the case. You do not need to take part if you do not wish to, but a decision will be made whether or not you do take part.

Question 5

The hearing

Accepted Answer

The tribunal will usually decide an appeal at a hearing. This is when the parties and any representatives meet with the tribunal to hear the case. These will usually take place in person at The Rolls Building, Fetter Lane, London. They are sometimes held in other court centres or by video if any party is unable to travel.

You can ask for your appeal to be decided without a hearing – this is when the judge considers only the documents the parties have provided. A judge will decide whether the appeal should be decided without a hearing after taking account of the respondent’s views and the interests of justice.

At the hearing

The tribunal office will try to set a hearing date convenient to you and the respondent. Once the date for a hearing has been set, it will send you a letter with the details of the date, time and place. You will be given at least 14 days’ notice of the date of a hearing, unless both you and the respondent have agreed to shorter notice.

Hearings are normally in public unless the judge instructs that the hearing should be held privately. If you would like your hearing to be private, you should explain why in the form – the judge will make the decision. You will have to provide a good reason, such as a valid need to protect your identity, or if you will be submitting confidential or sensitive information. The fact that your personal situation will be discussed is not normally enough.

The respondent and your representative, if you have one, will also be entitled to attend the hearing.

Hearings are usually with a judge and up to 2 non-legal members of the Upper Tribunal. In some cases, a judge may hear the case without a non-legal member. Rare cases that raise a particularly important or difficult point of law may be heard by 2 or 3 judges.

The judge will not usually give a decision at the end of the hearing. The office will send it to you and all other parties after the hearing has taken place. Even if you have been told the decision at the end of the hearing, the office will send you a written decision.

If you cannot attend the hearing

If you are not able to attend a hearing that has been set, tell the tribunal office as soon as possible by email or using the HMCTS E-Filing service. You should also tell the respondent and be prepared to agree an alternative hearing date.

If you want the hearing to be postponed, explain why when you contact the office – the judge will decide what should happen. You should not assume a hearing will be cancelled because you have asked – once set, a hearing remains so unless the tribunal says that it has been cancelled. The judge may decide to go ahead with the hearing without you.

If you do not turn up at the hearing, the judge will decide whether to go ahead without you. If you are delayed on your journey to the hearing, you should make every effort to contact the office to let them know immediately.

Question 6

The tribunal’s decision

Accepted Answer

The tribunal office will send a copy of the decision to you, or your representative if you have one, and to the other parties.

The judge will give reasons for the reference being allowed or dismissed – unless the reasons were given at the hearing and all the parties have agreed they are not needed in the written decision.

If the tribunal dismisses your reference, or you are not happy with the decision, you have the right to appeal. Information about your right to appeal will be included with the decision.

If the tribunal allows your reference or dismisses another party’s case, that party may wish to appeal.

Question 7

Challenge the tribunal’s decision

Accepted Answer

If you are not happy with the decision, you can:

apply to the tribunal for a decision to be ‘set aside’ – this means having the order either changed or cancelled completely
appeal to the Court of Appeal or Court of Session against the decision – you will need permission to do this

Any other party has the same rights to apply to have the decision set aside or to appeal as you do.

Apply for the decision to be changed or cancelled (set aside)

The tribunal can cancel a decision, or part of a decision, and re-make it. It will only do this if there has been a mistake or oversight in the case and the judge considers that it is in the interests of justice to reconsider the decision.

For example, if a document relating to the case has gone missing or a party, or their representative, was not at a hearing.

You must apply in writing to the tribunal by email, post or the HMCTS E-Filing service with your reasons within a month of receiving the decision.

Appeal to the Court of Appeal or Court of Session

You can only appeal the tribunal’s decision if you believe it has made an error in law. You cannot appeal based on a finding of fact.

To help you understand if you have a right to appeal, and because you may become liable for legal costs if you do, you may wish to get legal advice.

If you believe, or have been legally advised, that you have a right to appeal, you must first apply for permission to appeal from the Upper Tribunal. The tribunal must receive your appeal within 14 days of you receiving the most recent or relevant of the following:

written notice of the decision being sent to you
updated reasons for, or a correction of, the decision following the tribunal’s review
confirmation that your application to cancel or change the decision has not been successful

The tribunal judge can extend your time limit to respond if they are satisfied there is a good reason for an extension, such as a bereavement or serious illness has delayed your appeal.

You must make your application in writing by post, email or the HMCTS E-Filing service. This must identify where you think the tribunal made errors of law. You must also include the result you are asking for – for example, you might want:

the decision to be changed or cancelled (set aside) and a new decision made
to ask for a new hearing

How the tribunal considers your application for permission to appeal

When the tribunal receives your application for permission to appeal, it is considered by a judge. They may decide to review the decision and could cancel it, amend the reasons for it or correct it if:

when making their decision, the judge overlooked a court decision from a previous case that set a legal precedent that must be followed
a higher court has since made another decision that could have affected the tribunal’s decision if made earlier

The tribunal will tell all the parties in writing of the outcome of any review.

If the tribunal does not review or change the decision, it must decide whether to grant you permission to appeal to the Court of Appeal (in England and Wales or Northern Ireland) or Court of Session (in Scotland). It will record that decision in writing and, if it refuses permission either in full or in part, it will give reasons for the refusal.

How to appeal or apply to the Court of Appeal or Court of Session

If the tribunal grants you permission, you can then appeal to the Court of Appeal or Court of Session.

If the tribunal refuses your permission to appeal, you may then apply for permission directly to the Court of Appeal or Court of Session.

The Court of Appeal and Court of Session time limits are short, so if you wish to appeal to them or apply to them for permission to appeal, you should contact them as soon as possible.

Apply or appeal to the:

Question 8

Further help and guidance

Accepted Answer

Find out more about appealing to the Upper Tribunal (Tax and Chancery).

Contact the tribunal

Upper Tribunal (Tax and Chancery Chamber)
Fifth Floor
Rolls Building
Fetter Lane
London
EC4A 1NL
DX: 160042 Strand 4

Telephone: 020 7612 9730
Monday to Friday, 9am to 5pm
Find out about call charges

Email: uttc@justice.gov.uk
We aim to respond to emails within 5 days.

The tribunal and tribunal office cannot give legal advice. You may wish to speak to a legal adviser.