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Alexander Macdonald against East Lothian Council (Upper Tribunal - Local Taxation Chamber) [2025] UT 47 (27 June 2025)
URL: http://www.bailii.org/scot/cases/ScotCS/2025/2025ut47.html
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[2025] UT 47
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2025UT47
Ref: UTS/AP/25/0026
DECISION OF
Sheriff Komorowski
ON THE REQUEST FOR EXTENSION OF TIME
FOR LODGING A NOTICE OF APPEAL
IN THE CASE OF
Mr Alexander Macdonald
Appellant
- and -
East Lothian Council
Respondent
FTS Case Reference: FTS/LTC/CT/24/00257
27 June 2025
The request to extend time is refused.
The notice of appeal is not admitted.
REASONS FOR DECISION
Deadline imposed by the Upper Tribunal Procedure Rules
[1] A notice of appeal against a decision of the First-tier Tribunal must be lodged withing 30
days after receipt of the First-tier Tribunal's notice of its decision on permission to appeal (Upper
Tribunal for Scotland Rules of Procedure 2016, rule 3(9)). A late appeal must include a request for
an extension of time, explain why it is latte and why it is in the interests of justice to extend time
(rule (5)(a)). Where time is not extended, the notice must not be admitted (rule (5)(b)).
Timeline
[2] The FTT's notice on permission to appeal was sent to the appellant on 13 November by e-
mail. It is taken to have been received 48 hours after it was sent unless the contrary is shown
(Interpretation and Legislative Reform (Scotland) Act 2010, s.26(6)). I am not aware of any
electronic `delivery receipt' having been received. I therefore take it to have been received on 15
November 2024. The last date for a timely notice of appeal was therefore 15 December 2024.
[3] On 12 March 2025, the notice of appeal was sent to the Upper Tribunal by e-mail. I proceed
on the basis it was received instantaneously. On that basis the appeal was received 87 days late.
Appellant acting without an adviser or representative
[4] The notice of appeal has been prepared without any assistance apparent of a lawyer or other
specialist
Request to extend time
[5] In his request to extend time, the appellant states:
"... I apologize for the late submission. A number of reasons for this, firstly the responses
from the First Tier Tribunal for Scotland were slow, secondly I became confused on the
process to follow, thirdly I was then out of the country for one month and finally my mother
suddenly died and had to deal with this sad situation. I would ask for the time to be
extended as I believe I have a strong case."
[6] The appellant does not explain what responses from the First-tier Tribunal were slow or how
they might hinder submission of his notice of appeal, he does not explain in what respect he was
confused about the process, he does not say why being outwith the country would prevent
submission of a notice of appeal, and finally he does not give the date of his bereavement. It is not
patent that 30 days would be inadequate to overcome the problems arising from any or all of these
issues, still less that they would occasion as much as 87 days of delay.
Correct approach to whether to extend time
[7] I derive the following propositions from R (Hysaj) v. Secretary of State for the Home Department
late notices of appeal to the Court of Appeal of England & Wales in civil matters:
a. The seriousness of the failure to lodge in time should first be considered. The reason
for the failure as well as all the other circumstances are also relevant (para. 38).
b. Where the failure is not serious or significant, it is unlikely much thought need be
given to the other considerations before extending time (para. 38).
c. A good reason will likely result in the notice being received albeit late (para. 37(iii));
an absence of good reason is relevant but not necessarily decisive (paras. 52-53, 56-
57).
d. Mere inadvertence is not a good reason (para. 37(iii)); nor is that the appellant is
acting without representation a good reason in itself (paras. 44).
e. For reasons of expediency, the merits of the appeal will not usually be considered
as part of the circumstances, unless it is clear without much investigation that the
grounds are very strong or very weak (para. 46).
[8] The Immigration and Asylum Chamber of Upper Tribunal (United Kingdom) has said the
Court of Appeal's approach should be followed by both the First-tier and Upper Tribunals in
considering late applications for permission to appeal: R (Onowu) v. First-tier Tribunal (Immigration
16, 17. The procedural rules and context for the Court of Appeal is to some extent different from
the immigration tribunals. It is different again to that for the Upper Tribunal for Scotland. But like
the Upper Tribunal (United Kingdom), I see no good reason to take a different approach here.
Application to the instant case
[9] In the present case, the delay is significant, it is substantial, almost threefold the time
permitted. There is no good reason apparent for the delay. As for other considerations, the
appellant invites me to consider the merits of the appeal. I do not believe the appellant has a very
strong case. On the contrary, I do not consider it sets out any arguable error of law; rather, the
point is entirely untenable.
Appellant's complaint is manifestly unsound
[10] The appellant seeks to appeal against a decision to classify a dwelling in East Lothian as his
second home for the purposes of council tax. His other dwelling is in England. He complains that
the decision at first instance that his East Lothian dwelling is his second home leads to the absurd
possibility of the relevant English council treating his English dwelling also as a second home if
the "same logic" was applied there.
[11] That was not a point dealt with in the first-instance decision expressly. But there is no harm
in that if there is no substance to it. A tribunal is not required to address in its reasons every
argument no matter how weak; and even if it wrongly omits to consider an argument no harm is
done if the argument was bound to fail. This point was bound to be rejected.
[12] A finding that his East Lothian dwelling is his second home could only be made on the basis
that his dwelling in England is his main residence. As the First-tier Tribunal explained when
refusing permission to appeal, if the English local taxation authorities were to take the same
approach based on the same facts and legal test, they too would conclude his English dwelling was
his main residence (para. 2.5.3).
Two deadlines; one application
[13] Apart from the Upper Tribunal Procedure Rules, there is also separate legislative provision
for a deadline for applications to the Upper Tribunal for permission to appeal against a decision
of the First-tier Tribunal: Scottish Tribunals (Time Limits) Regulations 2016, reg, 3(1), (2)). Whilst
the time limit is also thirty days there, it is calculated by reference to when it is sent (not received)
and counted by "beginning with" the date of sending, so that the day it is sent is included: Guven
difference in cases of hand-delivery of one day, and with post or e-mail of three days.
[14] In this case I have applied only the deadline more favourable to the appellant, found in the
Upper Tribunal Procedure Rules, though it is arguable that the deadline from the Time Limit
Regulations should be applied.
[15] It is unsatisfactory that there should be two differently expressed provisions for a deadline
applicable to the same step in litigation.
Member of the Upper Tribunal for Scotland
Document Outline
- Deadline imposed by the Upper Tribunal Procedure Rules
- Timeline
- Appellant acting without an adviser or representative
- Request to extend time
- Correct approach to whether to extend time
- Application to the instant case
- Appellants complaint is manifestly unsound
- Two deadlines; one application