Are tribunals required to consider public law challenges?
13 February 2026
The post below was originally published on the Administrative Court Blog, of which its author, Dr Lewis Graham, is an editor. It is republished here with the Dr Graham’s permission.
The First-tier Tribunal had delivered a ruling in which it has allowed a claimant to challenge the imposition of a liability order on public law grounds, despite the jurisdiction for this not being set out explicitly in the relevant statute. The decision does not set a precedent, and strictly involves a narrow point of construction relating to the Finance Act. However, its reasoning, if approved or adopted on appeal, may have significant ramifications for claimants wishing to rely on public law grounds before tribunal appeals more generally. The case is Hall v HMRC [2026] UKFTT 124 (TC) (13 January 2026).
The claimant, Hall, was issued a Joint and Several Liability Notice (JSLN) and sought to appeal it before the First-tier Tribunal (FTT). He wished to challenge the notice on five grounds. It was undisputed that the tribunal had jurisdiction to consider the first two grounds (whether the prerequisite conditions were met, and whether the notice was necessary for the protection of revenue, respectively). However, HMRC disputed the tribunal’s jurisdiction to consider Grounds 3 to 5 (relating to the proportionality of the measure, the rationality of the measure, and a failure to follow relevant guidance) and applied for these grounds to be struck out, under rule 8(2) Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The question for the tribunal was, therefore, whether it did have the jurisdiction to consider these – public law – grounds.
Because the tribunal has no inherent public law jurisdiction, it can only be granted the ability to review such grounds by statute: see [65]. This in turn raises an issue of statutory construction. In this case, the jurisdiction of the tribunal when considering appeals to the issuing of a JSLN is set out in paragraph 14(1) of Schedule 13 to the Finance Act 2020. That section says that on appeal, the tribunal “must set aside the notice” if “any of the relevant conditions were not met when the notice was given” (para 4(1)(a)(i)), “it is not necessary for the protection of the revenue for the notice to continue to have effect” (para 4(1)(a)(ii)) or “the amount specified is incorrect” (para 4(1)(b)). If these grounds are not made out, “the tribunal must uphold the notice” (para 4(1)(c)). HMRC argued that the effect of these provisions was to exclude any public law challenge: [32], and that public law grounds could only be argued in a judicial review, rather than statutory appeal: [33].
The tribunal judge was unconvinced by this argument. She said that she could “see no language” in the statute “which precludes an assessment of proportionality or rationality when determining whether the Appellant has made out its defensive case”: [81]. Thus, the third and fourth ground of appeal could be considered by the tribunal. Although it was not confirmed, this, presumably, also meant that the statute did not preclude consideration of the fifth ground – whether HMRC failed to comply with its policies.
At first blush, it seems that the judge arrived at this interpretation via ordinary methods of construction. But the judge preceded her analysis with an overview of the interpretive powers available to her under section 3 of the HRA (see [60]):
“Where a Convention right is impermissibly limited by the terms of the statutory language chosen by Parliament the relevant provision should be construed so far as is possible to ensure a Convention compliant outcome… the line between a section 4 HRA declaration of incompatibility… and conforming interpretation [is] the “grain of the legislation”. Legislation need not be ambiguous in order for it to be interpreted expansively so as to protect Convention rights, an interpreting court or tribunal can read words in and change the meaning of the language used but cannot cross the constitutional line of legislating, in particular when choosing between alternative means of achieving a Convention-compliant meaning.”
The judge also followed her conclusion with the observation that the wider construction she adopted “also meets the Article 6 requirement that there be a forum with full jurisdiction on all matters of fact and law when considering the issue of the JSLN” and that “separating the issues between the administrative court and the Tribunal would run the risk of facts being evaluated differently and thereby inhibiting a fair trial”: [83]. Therefore, it appears that the judge’s conclusion was either made pursuant to, or reinforced by, the need to adopt a Convention-compliant interpretation under section 3 HRA.
Comment
With respect to the tribunal judge, her reasoning on the construction issue is a little thin and a number of issues in the judgment remain open to debate.
First, it is, as above, unclear whether section 3 was even applied in the first place. In some other cases, a similar result has been achieved by applying a presumption that a claimant “should be entitled to defend himself by challenging the validity of… the decision… on public law grounds” in order to uphold “the rule of law” (see KSM Henryk Zeman SP ZOO v HMRC [2021] UKUT 182 (TCC) at [34]). This was not the case here; as noted above, the interpretation appears to be based on section 3 HRA. But notably absent from the judgment is any discussion as to whether a Convention-compliant interpretation would fall foul of what is “possible” – whether recognising the jurisdiction of the tribunal to consider public law grounds would go “against the grain” of the legislation.
Second, it is not immediately clear that Article 6 requires that the tribunal act as a forum for the determination of Convention rights (as opposed to, say, the Administrative Court). All we are told is that there is an “Article 6 requirement that there be a forum with full jurisdiction on all matters of fact and law” ([83]). It is true that the Article 6 authorities (see e.g. Schmautzer v Austria (1995), paras 34-37) speak of the need for a “judicial body that has full jurisdiction” in the context of determining the validity of a criminal charge (the tribunal had already determined that the issuing of a JSLN was a criminal charge: [75]). However, in a number of different areas the Strasbourg Court has accepted that a tribunal or court exercising more limited powers of appeal or review has satisfied the requirements of Article 6 (see e.g. Stefan v UK (1997); Ali v UK (2016)). The Strasbourg case law in this area is hardly straightforward and it was surprising to see that the judgment didn’t feature any engagement with the key authorities on this matter.
Third, it is unclear why the judge insisted that the First-tier Tribunal ought to be imbued with full jurisdiction (see, mutatis mutandis, Mattu v the University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 at [120]-[122]) Firstly, the claimant can appeal to a court which itself holds full jurisdiction (something which the Strasbourg Court has found to be relevant when assessing compliance with Article 6: see McMichael v UK (1995)). Secondly, the claimant can lodge a judicial review before the Administrative Court, which also holds full jurisdiction: see Runa Begum v London Borough of Tower Hamlets [2003] UKHL 5.
Fourth, Article 6 is – it seems – invoked in order to justify the recognition of the tribunal’s jurisdiction in relation to not only the consideration of Convention grounds, but two further public law grounds. Does the Convention really operate so as to require the tribunal – rather than another court – to determine rationality (and consistency with policy) alongside the determination of Convention rights?
As suggested above, the decision, being one of the First-tier Tribunal, does not formally set a precedent and does not bind other tribunal judges. Further, the case is, strictly speaking, concerned only with the interpretation of paragraph 14 of Schedule 13 to the Finance Act 2020, and not with wider issues relating to the jurisdiction of tribunals more generally. Nevertheless, the wide interpretation of both the requirements of Article 6 ECHR and the scope of section 3 HRA will no doubt make it more likely that similar challenges will arise in the future, in relation to other tribunal actions limited by statute. Whether the decision will survive appeal, and review by later judges, is less certain.
Dr Lewis Graham is a Lecturer in Human Rights Law at the University of Manchester
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