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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Down Window Systems v Construction Industry Training Board [2007] NIIT 1254_06 (12 February 2007
URL: http://www.bailii.org/nie/cases/NIIT/2007/1254_06.html
Cite as: [2007] NIIT 1254_6, [2007] NIIT 1254_06
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1254/06
CLAIMANT: Down Window Systems
RESPONDENT: Construction Industry Training Board
DECISION
The unanimous decision of the tribunal is that the appeal is dismissed.
Constitution of Tribunal:
Chairman: Ms M Sheehan
Members: Mr McKenna
Mr Kinnear
Appearances:
The claimant appeared in person.
The respondent was represented by Mr J Coyle, Barrister at Law, instructed by Babington & Croasdaile, Solicitors.
1. The claimant was appealing against a levy imposed by the respondent under the Industrial Tribunal (Northern Ireland) Order 1984. The claimant's appeal was that he disputed the demand for payment, of the levy, when he had not been informed of the service provided by the respondent or received any service for the three years for which the levy was sought. The respondent contended that the levy as assessed was properly due.
Sources of Evidence
2. The tribunal received a bundle of documents and authorities from the respondent and a bundle of documents from the claimant. The tribunal heard evidence from the claimant, his wife, Sheila McCausland, and a Mrs McCann. It was not in dispute that the claimant's business activities brought it within the statutory scheme. The level at which the levy was claimed was not in dispute.
Issues
3. The issue for the tribunal to determine was whether the respondent could lawfully demand payment retrospectively for three years levy.
The facts
4. The claimant's business, whose main activity is the installation of PVC windows, in mid-2002, was based in the enterprise zone at 45 Saul Road, Downpatrick. The claimant claimed in evidence that the company moved business premises in July 2002 to premises in a private business park known as Unit 1, Saul Business Park, Downpatrick. The tribunal concluded that the move must have occurred sometime after August 2002 as an employee of the respondent reported ongoing business activity by the claimant at 45 Saul Road, Downpatrick, to his employer on 31 August 2002 for the purposes of registration.
5. The respondent employs 50 staff for the whole of Northern Ireland. There are a number of ways that the respondent becomes aware of people in the construction industry who appear to be within the scope of the relevant legislation, sometimes as in this case where an employee of the respondent while carrying out duties in a particular area comes across a business that fits the requirements of the legislation.
6. The respondent runs pre-registered and fully registered lists of businesses. The claimants business on 3 September 2002 was put on the fully registered list as, on the information available to the respondent, they were satisfied that the claimant's business fell within the statutory scheme. Annual return forms were sent out to the claimant addressed to 45 Saul Road, Downpatrick, in August 2003, 2004 and 2005. In June 2006 a letter addressed to 45 Saul Road, Downpatrick, was sent from the respondent indicating that the respondent intended to carry out an audit of the claimant's business. The claimant forwarded the letter received in June 2006 to his accountants. The respondent liaised with the claimant's accountants and discovered at that time the business address for the claimant had changed to Unit 1, Saul Business Park, Downpatrick.
7. The respondent has approximately 5,000 registered firms approximately 2,500 being full levy payers. The administration of the respondent is divided into five areas of responsibility one of which is Levy. There are three persons working in that section. The respondent has only a fifty percent return rate on annual return forms from those subject to the levy within the whole of Northern Ireland. The annual returns are sent out by ordinary post. The respondent will often have annual returns sent back to them marked “not at that address”. No annual returns had been received from the claimant nor were the claimant's annual returns sent back to the respondent marked in that fashion. The letter in June 2006 was sent as part of the standard tri-annual audit carried out by the respondent, on a rotational basis, for the various areas of Northern Ireland.
8. It was accepted by the claimant that, after the change of address, he had made arrangements for mail to be passed up to him by neighbours. This arrangement appeared to work as he received mail sent to him. No explanation was available for why the claimant did not receive the annual return forms, particularly when the letter regarding the audit from the respondent with regard to levy assessments was received although addressed to the same address as the annual returns.
9. The only training provided by the claimant to his staff pre-June 2006 cost the claimant £90.00 per employee. The claimant employed during the relevant period between five to nine employees.
Applicable Law
10. The respondent is a creature of statute created for the purpose of providing or securing courses or other facilities for the training of persons employed in or intending to be employed in the construction industry. The essential relevant legislation is the Industrial Training (Northern Ireland) Order 1984 in particular Articles 23 and 24, the Industrial Training Levy (Construction Industry) Order (Northern Ireland) 2003, the Industrial Training Levy (Construction Industry) Order (Northern Ireland) 2004 and the Industrial Training Levy (Construction Industry) Order (Northern Ireland) 2005. The tribunal took cognisance of the decision, of the current Lord Chief Justice Kerr, In the Matter of an Application for judicial review by HSS Hire Service Group PLC in July 2001, which confirmed that the respondent is fixed with a statutory obligation to collect the levy from those who are liable to pay it. The amount of the levy is regulated by statute, in this instance, the respective Orders made in 2003, 2004 and 2005 referred to above and in particular Articles 2, 3 and 4 of the aforesaid Orders.
Conclusions in light of the facts and law
11. These statutory provisions do not allow remission of the levy to be given to any employer, like the claimant, who satisfies the prescribed statutory conditions. The decision by Kerr LJ is clear authority to be followed by this tribunal on the issue as to whether the respondent acted lawfully in estimating a levy in the absence of an annual return. In light of the authorities listed by Carswell LCJ in Re Human Rights Commission's Application [2001] unreported, referred to at Page 16 of the decision in the HSS case referred to above, this tribunal is satisfied that while there is no express provision permitting the respondent to make an estimate of the amount of a levy inside the absence of a return from an employer such as this claimant, the power to estimate the amount of the levy must be regarded as incidental to the express powers conferred in the 2003 Order.
12. Article 3 of the 2003 Order permits the respondent to serve an assessment notice on every employer assessed to the levy but “one notice may comprise two or more assessments.” The respondent in this case issued three assessment notices on the 4 July 2006 in respect of the levy periods 39, 40 and 41 respectively. Article 4 of the relevant Levy Orders states that subject to the provisions of Article 5 and 6, “the amount of each assessment appearing in an assessment notice … shall be due and payable to the Board in two instalments and the said instalments shall be due respectively”. The dates specified in the relevant Levy Orders relate to October and February of each assessment year. Articles 5 and 6 deal with the timing of payment where an assessment is withdrawn or appealed. Article 4 (3) and 6 make it clear that no payment is due until the assessment has been served and the time allowed for appeal, namely one month from the date of service of the assessment notice has expired. It appeared to this tribunal that when these provisions were all read together that although there was no express provision permitting the respondent to issue assessment notices for a three yearly cycle on foot of an audit arrangement, such a power could be “regarded as incidental to or consequential upon those things, which the legislature has authorised”: Selborne LC in Attorney General v Great Eastern Railway Co (1880) 5 App Cas 473 at 478.
13. The three yearly audit cycle was created by the respondent, clearly to match business needs with available resources in carrying out its duty to raise the levy. It appeared to the tribunal that the creation of a process to address the sourcing of relevant information, required by the respondent to effect its obligations under the statute must fall into the same category as that of the implied power to estimate levy assessments for exactly the same reason as that given in the HSS decision by Lord Justice Kerr at Page 16, “It cannot be the case that the collection of the levy could be frustrated by the refusal of employers to complete return forms”. The tribunal drew support for this conclusion from the description of the assessment function given by counsel for the respondent Mr Morgan QC, and accepted by the Court in the HSS case as “not concerned with the imposition of the levy but rather with its collection”.
14. The claimant tentatively raised at hearing that in some way the delay in issuing the notices of assessment had infringed his “human rights”. No prior notice of the intention to raise such a point appeared on the papers before the tribunal. The tribunal in compliance with its duty as a public authority under Section 6 of the Human Rights Act 1998 considered whether the delay in issuing the assessment notice for the previous years of 2003 to 2005 in July 2006 could have breached the claimant's rights to a fair and public hearing within a reasonable time by an independent and impartial tribunal under Article 6 or an unlawful infringement of the right to peacefully enjoy his property as protected by Article 1 of the First Protocol to the European Convention of Human Rights.
15. The tribunal noted that the first instalment of the levy for the year 2003, if the notice had been issued in August 2003 was 1 October 2003. Article 8 (4) of the 1984 Order states that “Any sum of money that the Authority is authorised to collect may, without prejudice to any other remedy, be recovered by the Authority summarily as a debt”. The normal period for the issue of proceedings for the recovery of a debt is between three to six years depending on the cause of action.
16. Article 6 of the European Convention of Human Rights requires that there is no unreasonable delay in the determination of a person's civil liabilities. In most cases the timescale for considering whether there has been undue delay arises once the person is aware of the liability. In this instance it could not be said that there had been any undue delay on that basis.
17. The question as to whether the delay in issuing an assessment has caused any prejudice to the claimant can also be answered in the negative. The information used by the respondent to make the assessment is the information on tax returns made by the claimant to the Inland Revenue with regard to employees. These are records that the claimant, like all employers, is required to retain for six years.
18. The right to peaceful enjoyment of your possessions is not an absolute right but can be interfered with “in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
19. The purpose of this legislation is clearly to ensure that persons engaged in the construction industry receive or have access to adequate training or information to ensure their own safety and the safety of those who work or use the buildings which they construct or carry out alterations in. The scheme aims to provide a scheme where adequate finance for such services or training can be obtained from the industry as a whole for the benefit of the industry itself and the public at large. On the basis of the information provided by the claimant at hearing, in particular, as to the regularity of the receipt of mail to his new premises which had been addressed to the previous premises, the level of costs incurred in respect of training provided, the scheme established by the respondent to address the level of annual returns within the industry and the level of the levy as assessed, it appeared to this tribunal that there was no disproportionate or unlawful interference in the claimant's enjoyment of his property.
20. The only potential for detriment that the tribunal could perceive is whether the claimant had been denied access to the services provided by the respondent to such an extent as to equate to an abuse of process to allow the respondent to recover the levy for those years in which no service was provided. Clearly while the claimant may now have to find funds for three years levy at one point in time, equally he has had the benefit of possessing funds which he would have had to pay over earlier if he had made annual returns or his change of address had been discovered earlier by the respondent. The tribunal concluded, in light of the level of costs incurred by the claimant in respect of training provided pre-assessment, the scheme established by the respondent to address the level of annual returns within the industry and the actual level of the levy as assessed, that the impact of any delay was not such that it amounted to an abuse of process to allow the respondent to proceed to recover the levy for each of the years between 2003 to 2005. Accordingly the claimant's appeal is dismissed.
Chairman:
Date and place of hearing: 13 December 2006, Belfast
Date decision recorded in register and issued to parties: