Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CTC/1023/2010

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Middlesbrough on 12 January 2010. For the reasons set out below I dismiss the appeal.

 

2. I held an oral hearing of the appeal at which Mr Graham Tegg, a solicitor employed by the Child Poverty Action Group, appeared on behalf of the Claimant, and Mr Ben Hooper, of counsel, appeared on behalf of HMRC.

 

The legislative framework

3. The following account of the legislative framework is substantially taken (with gratitude) from Mr Hooper’s helpful Skeleton Argument.

 

Claims for tax credit, and awards of tax credit

4. The Tax Credits Act 2002 (“the TCA”) distinguishes between a decision to award tax credits and a decision as to a person’s entitlement to tax credits so awarded.

5. As regards the former, s. 14(1) of the TCA provides:

“On a claim for a tax credit the Board must decide—

(a) whether to make an award of the tax credit, and

(b) if so, the rate at which to award it.”

 

(Emphasis added)

 

6. By s. 5 of the TCA, an award of tax credit can, at most, be for the whole of a given tax year. In other words, the TCA contemplates that if a person is to receive a tax credit on an ongoing basis he will need to make (or be taken to have made) a claim for the tax credit for each tax year, so as to receive successive yearly awards under s. 14(1) of the TCA.

7. Regulation 5(1) of the Tax Credits (Claims and Notifications) Regulations 2002, SI 2002/2014 (“the 2002 Regulations”), prescribes the manner in which a claim for a tax credit is to be made. Regulation 5(2)-(3) provide:

“(2) A claim must be made to a relevant authority at an appropriate office—

(a) in writing on a form approved or authorised by the Board for the purpose of the claim, or

(b) in such other manner as the Board may decide having regard to all the circumstances.

(3) A claim must contain the information requested on the form (or such of that information as the Board may accept as sufficient in the circumstances of the particular case).”

8. Once HMRC has awarded a tax credit for a given tax year under s. 14(1) of TCA, a person’s entitlement to that tax credit is determined by HMRC on a retrospective basis following the end of the tax year in question under ss. 17-18 of the TCA.

 

9. As regards the entitlement to tax credits, s. 3(1) of the TCA provides:

“Entitlement to a tax credit for the whole or part of a tax year is dependent on the making of a claim for it.” (Emphasis added)

10. Thus, a claim for a tax credit in a given tax year is both a pre-condition for an award of that tax credit in that year and a pre-condition for any subsequent decision that the recipient of the award was entitled to that tax credit for that year.

 

S. 17 notices, and their consequences

11. S.17(1) of the TCA provides in relevant part:

“Where a tax credit has been awarded for the whole or part of a tax year—

(a) … the Board must give a notice relating to the tax year to the person to whom the tax credit was awarded,

…”

12. Such a notice has two purposes. The first (as already noted) is to enable HMRC to determine whether the person was in fact entitled to the tax credit that he was awarded in the tax year that has just passed. This function of the s. 17(1) notice follows from s. 17(2)-(8) and s. 18 of the TCA.

13. S. 17(2)-(7) provide in relevant part:

“(2) The notice must either—

(a) require that the person … must, by the date specified for the purposes of this subsection, declare that the relevant circumstances were as specified or state any respects in which they were not, or

(b) inform the person … that he … will be treated as having declared in response to the notice that the relevant circumstances were as specified unless, by that date, he states ... any respects in which they were not.

….

(4) The notice must either—

(a) require that the person … must, by the date specified for the purposes of this subsection, declare that the amount of the current year income or estimated current year income (depending on which is specified) was the amount, or fell within the range, specified or comply with subsection (5), or

(b) inform the person … that he … will be treated as having declared in response to the notice that the amount of the current year income or estimated current year income (depending on which is specified) was the amount, or fell within the range, specified unless, by that date, he complies ... with subsection (5).

(5) To comply with this subsection the person … must either—

(a) state the current year income or his … estimate of the current year income (making clear which), or

(b) declare that, throughout the period to which the award related, subsection (1) of section 7 did not apply to him ... by virtue of subsection (2) of that section.

(6) The notice may—

(a) require that the person … must, by the date specified for the purposes of subsection (4), declare that the amount of the previous year income was the amount, or fell within the range, specified or comply with subsection (7), or

(b) inform the person … that he ... will be treated as having declared in response to the notice that the amount of the previous year income was the amount, or fell within the range, specified unless, by that date, he complies … with subsection (7).

(7) To comply with this subsection the person ... must either—

(a) state the previous year income, or

(b) make the declaration specified in subsection (5)(b).”

 

14. As regards the declarations to which s. 17 of the TCA refers, reg. 34 of the 2002 Regulations provides in relevant part:

“(1) This regulation prescribes the manner in which a declaration ... in response to a notice under section 17 of the Act must be made.

(2) A declaration ... must be made–

(a) in writing in a form approved by the Board for that purpose;

(b) orally to an officer of the Board; or

(c) in such other manner as the Board may accept as sufficient in the circumstances of any particular case.” (Emphasis added.)

15. S. 18 of the TCA provides in relevant part:

“(1) After giving a notice under section 17 the Board must decide—

(a) whether the person was entitled…to the tax credit, and

(b) if so, the amount of the tax credit to which he was entitled, or they were jointly entitled,

for the tax year.

(2) But, subject to subsection (3), that decision must not be made before a declaration or statement has been made in response to the relevant provisions of the notice.

(3) If a declaration or statement has not been made in response to the relevant provisions of the notice on or before the date specified for the purposes of section 17(4), that decision may be made after that date.”

16. Pending the receipt of the declaration in response to the relevant provisions of a s. 17 notice, HMRC may (in certain circumstances) continue to make tax credit payments in the new tax year. Such payments are treated as payments of tax credit for that tax year. See s. 24(4)-(5) of the TCA. The circumstances in which such payments may continue to be made are set out in reg. 7 of the Tax Credits (Payment by the Commissioners) Regulations 2002. Essentially, the circumstances are that either (i) a claim for tax credit for the next tax year has been made or treated as made by the date specified in the s.17 notice (i.e. 31 July 2007 in this case) or (ii) a claim for the next tax year has not been made, and HMRC has not made a decision under s.18(1) in relation to the previous tax year.

17. The second purpose of a s. 17 notice is that it enables the person to whom it is given to be treated as having made a new claim for a tax credit for the next tax year. This follows from reg. 11 of the 2002 Regulations, which - as it stood at the relevant time - provided in relevant part:

“(1) In the circumstances prescribed by paragraph (2) a claim for a tax credit is to be treated as made.

(2) The circumstances prescribed by this paragraph are where … a person has … made a declaration in response to provision included in a notice under section 17 of the Act by virtue of-

(a) subsection (2)(a) of that section;

(b) subsection (4)(a) of that section;

(c) subsection (6)(a) of that section; or

(d) any combination of those subsections.

The declaration made shall (subject to regulation 5(3)) be treated as a claim for tax credit by that person ... for the tax year following that to which the notice relates.

(3) The claim shall be treated as made—

(a) in a case where the declaration is made by 31st July next following the end of the tax year to which the claim relates, on 6th April preceding that date;

(aa) in a case where the declaration, not having been made by the date mentioned in sub-paragraph (a), is made before 31st January next following the end of the tax year to which the claim relates, and, in the opinion of the Board, the claimant had good cause for not making the declaration as mentioned in that sub-paragraph, on 6th April preceding the date on which the declaration is made;

....” (Emphasis added.)

18. Thus, if a person makes a declaration “in response to provision included in a notice under section 17 of the Act” then, subject to reg. 5(3) and reg. 11(3), he may be treated as having made a claim for a tax credit on 6 April of the tax year in question. Such a claim would then call for a decision by HMRC as to whether to award the tax credit for the year in question under s. 14(1) of the TCA.

 

The FTT’s jurisdiction to hear appeals

19. For present purposes, the FTT’s jurisdiction is specified in s. 38 of the 2002 Act. S. 38 provides in relevant part:

“(1) An appeal may be brought against—

(a) a decision under section 14(1)…,

(b) the relevant section 18 decision in relation to a person ... and a tax credit for a tax year …,

…

(2) ‘The relevant section 18 decision’ means—

…

(b) …, the decision under subsection (1) of that section in relation to the person ... and the tax credit for the tax year.”

(Emphasis added.)

 

 

The facts

 

20. The Claimant is a woman now aged 55. She was awarded child tax credit for the 2006-2007 tax year. On 23 April 2007 HMRC issued the Claimant with a notice under s. 17 of the TCA, together with HMRC’s prescribed form of “declaration”. No copy of that notice, or the documents enclosed with it, is in the papers. However, I am told that there would have been 3 documents:

 

(i) a “tax credits annual declaration”, of which a specimen (in respect of the year 2007-8) is in the papers at pages 117 to 119. It requires the Claimant to give, in Part I, details of certain social security benefits, in Part 2 details of income as an employee, from self-employment, or other income, and in Part 3 requires the Claimant to state whether her “personal circumstances” as set out in the “Annual Review Form” were correct for the whole of the period. All the information requested by the s.17 notice sent to the Claimant on 23 April 2007 would have been in respect of the year 2006-7, which had of course by then expired. Part 4 contained a Declaration, which it was stated the Claimant must sign, in the following form:

 

“I declare that

 

·       The information given on this form is correct and complete to the best of my knowledge and belief, and

·       I have reported any changes that I must tell you about.

 

I understand that

 

·       You will use the information on this form to decide the final amount of my tax credits award for 2006-2007

·       This form is my claim to any tax credits due to me for 2007-2008 and the amount due will be worked out using the information given

·       [applies only to joint claims].”

 

(ii)  an “Annual Review Form” setting out the facts which HMRC had used in making the award under s.14 in respect of the year 2006/7.

 

(iii)  lengthy explanatory notes.

 

 

21. From 6 April 2007 onwards HMRC made discretionary tax credit payments to the Claimant under s. 24(4) of the Act. From April 2007 to July 2007, HMRC made payments of £847.98 on this basis and in anticipation of the receipt of a valid tax credit claim for the 2007-2008 tax year.

 

22. By reg. 11(3)(a) of the 2002 Regulations (as it stood at the time), the Claimant’s declaration in response to the s. 17 notice needed to be made before 31 July 2007. The Claimant therefore had 14 weeks to make her declaration. It is however common ground that the Claimant failed to return the s. 17 notice (so as to make the requisite declaration) by this date (FTT’s Reasons, §9; p. 154). As a result, no award of child tax credit in respect of the year 2007/8 was made to the Claimant.

 

23. At some time shortly after 31 July 2007 a decision was made by HMRC under s.18 as to the Claimant’s entitlement in respect of the year 2006/7. No copy of that decision, or details of it, are in the papers, because it is the year 2007/8, not the previous year, which is in issue in this appeal. (However, the decision is referred to in para. 12 of HMRC’s submission at p.78.)

 

24. The consequence of the making of the s.18 decision was that HMRC’s power to continue paying tax credit to the Claimant in respect of the year 2007-8 ceased: see para. 16 above.

 

25. It is asserted by HMRC that a consequence of the fact that no award was made to the Claimant in respect of the year 2007/8 was that the discretionary payments of £847.98 which had been made to the Claimant became overpayments.

 

26. However, it is to be noted that, under reg. 11(3)(aa) of the 2002 Regulations the Claimant continued to have the possibility, until 31 January 2008, of returning the s.17 declaration form and requesting HMRC to accept that she had had “good cause” for not having returned it by 31 July 2007, in which case the claim would be treated as having been made on 6 April 2007. In addition, there was the possibility of submitting a new claim under reg. 5 of the 2002 Regulations, in which case the claim would be treated as backdated by 3 months under reg. 7 of the 2002 Regulations.

 

27. The Appellant was notified on 16 August 2007 that her payments of tax credit had stopped. No copy of that notification is in the papers. Nor is there any copy of any decision made by HMRC on or about that date. In a subsequent letter dated 25 February 2008 HMRC stated as follows:

 

“Our records show that you did not return your completed Annual Declaration Form to us by 31 July 2007. We sent you an award notice on 16 August 2007 telling you that we were ending your claim.”

 

28. The First-tier Tribunal, in para. 12 of its Statement of Reasons, stated the position as follows:

 

“In consequence of her not returning the Section 17 notice by 31 July 2007 HMRC made a decision cancelling entitlement to Tax Credits ….. from 6 April 2007. This resulted in an overpayment of £847.98 occurring. The decision was issued on 16 August 2007.”

 

29. On 17 September 2007 HMRC wrote to the Claimant enclosing a notice to pay in the sum of £847.98.

 

30. On 25 September 2007 the Appellant telephoned HMRC. The child tax credit position was explained to her. It is not suggested on her behalf that the Claimant made a declaration orally at this time in accordance with reg. 34(2)(b) of the 2002 Regulations (see also p. 123, at §3). HMRC’s evidence, having listened to a tape of the conversation, is that the Claimant did not during the call give the information requested in the s.17 declaration.

 

31. The Claimant then went to take advice from the CAB. On 28 September 2007, Stockton Citizens Advice Bureau (acting on behalf of the Claimant) wrote a letter to HMRC (“the CAB letter”). The CAB letter accepted that no “annual renewal form” had been returned, and then referred to the possibility of making the declaration by 31 January 2008, if good cause for the delay could be shown. The letter went on to put forward, as reasons for the delay, the effect of the Claimant’s disabilities, and then continued:

 

“Therefore, it is submitted that [the Claimant] had good cause for not filling out the form before the deadline. Thus, we are sending the annual renewal late.

 

The Claimant tells us that she had been receiving contribution-based JSA for the tax year 2006-7 at a single person’s rate (£59.15 per week) and is receiving £72.47 per week Income Support for this tax year (2007-8);

 

Tax Year 2006-2007 £3075.80

Tax Year 2007-2008 £3768.44

 

If you cannot accept this revision on the information provided, please could you hold the application as we gather further medical evidence in support. If you are unable to accept this revision altogether, we would be grateful if you would provide copies of the evidence used to make the decision for our evidence.

 

Please find enclosed her authorisation for us to act on her behalf.

 

Please do not hesitate to contact …….. should you wish to discuss this matter further.”

 

32. Astonishingly, HMRC did not reply in any shape or form to the CAB letter until 25 February 2008, when HMRC wrote to the Claimant a letter which included the passage which I have set out in para. 27 above. HMRC’s letter went on to state that the overpayment was therefore due.

 

33. The CAB replied on 19 March 2008 stating that they had assisted the Claimant to return the annual declaration in September 2007, and that there had been just cause for returning it late. “Therefore, we are appealing against the decision that she was not entitled to tax credits from 6 April 2007 because of a failure to return the annual declaration in time.”

 

34. In a letter dated 6 May 2008 HMRC wrote as follows:

 

“In your letter you stated that you wanted to appeal against the decision to finalise [the Claimant’s] tax credits claim. Unfortunately, this matter does not carry the right of appeal under Regulation 38 of the Tax Credit Act 2002. This is because there are no appeal rights against claims that have been terminated due to the non-receipt of an annual declaration.

 

The law is specific about which tax credit decisions carry the right of appeal. There is no right of appeal against the issue(s) you have raised. This means that we will not refer the matter to the tribunal and will close our records accordingly.”

 

35. As a result, the CAB themselves referred the matter to the First-tier Tribunals Service, and the First-tier Tribunal directed detailed submissions from the parties, and eventually held an oral hearing on 12 January 2010.

 

36. It continued to be HMRC’s contention that there was no appealable decision which brought the matter within the jurisdiction of the First-tier Tribunal.

 

The First-tier Tribunal’s Decision

37. The First-tier Tribunal’s Decision was as follows:

 

“1. The appeal is dismissed.

 

2. The decision dated 16 August 2007 is confirmed.

 

3. The claim for Tax Credits from 6 April 2007 is terminated.

 

4. There is an overpayment of Tax Credits from 6 April 2008 amounting to £847.98. The overpayment is for the period from 6 April 2007 until 5 April 2008.

 

5. The reason for the overpayment is that [the Claimant] was not entitled to Tax Credits from 6 April 2007 for failing to make a claim for Tax Credits because of the failure to return a Section 17 Notice within the time limits or at all.”

 

38. The First-tier Tribunal did not in its Statement of Reasons deal with the issue whether there was an appealable decision before it. It appears to have assumed that it had jurisdiction to determine whether the Claimant was entitled to an award of tax credits in respect of the year 2007-8.

 

39. The First-tier Tribunal found, first, that no separate Annual Declaration had in fact been enclosed with the CAB letter. It then went on to consider whether the terms of that letter itself could be regarded as a s.17 declaration, and found that it could not, owing to the absence of a declaration signed by the Claimant in the form required by the s.17 notice (see para. 20 above):

 

“37. The finding of the Tribunal is that the letter dated 28 September 2007 from the representative does not constitute a Section 17 Notice nor, can it be regarded as being in such other manner as the Board may decide having regard to all the circumstances. The requirements for the contents of the Section 17 notice are mandatory because the word MUST is used.

 

38. The letter of 28 September 2007 has not been signed by [the Claimant]. The letter of 28 September 2007 does not include declaration made by [the Claimant] in the terms contained within the actual Section 17 Notice – Part 4. The mandatory requirement for a declaration to be made has not been complied with.

 

39. The Tribunal does accept that although the financial information provided at the end of [the letter of 28 September 2007] was probably all that was required, in financial terms, it is insufficient to comply with the mandatory requirements of a section 17 notice.”

 

Jurisdiction: HMRC’s submissions

40. Logically, the first question which arises is whether the First-tier Tribunal had jurisdiction to consider the matter at all.

 

41. The submissions on behalf of HMRC are, in summary, that, (i) as a matter of domestic law the First-tier Tribunal lacked jurisdiction to entertain the Appellant’s purported appeal and (ii) such an analysis of the First-tier Tribunal’s jurisdiction does not give rise to a breach of Art 6 of the European Convention on Human Rights (“the ECHR”).

 

42. Those submissions are developed as follows in Mr Hooper’s Skeleton Argument. I see no purpose in attempting to summarise them, and therefore set them out in full.

 

 

 

 

“The domestic law position

 

43. As the Appellant acknowledges, HMRC has throughout disputed the jurisdiction of the FTT to entertain her appeal (Appellant’s submissions of 26 October 2010, at §11; p. 200). The FTT did not address this issue.

 

44. Given s. 38 of the TCA, the Tribunal only has jurisdiction in the present case if the Appellant is seeking to challenge (i) a “decision” under s. 14(1) of the TCA or (ii) a “relevant section 18 decision” within the meaning of s. 38(2).

 

45. The latter possibility can straightforwardly be dismissed: there was a s. 18 decision in this case, but it related to the Appellant’s entitlement to tax credit for the 2006-2007 tax year (which is not in dispute) rather than her entitlement for the 2007-2008 tax year (which the Appellant seeks to put in issue).

 

46. As regards the FTT’s jurisdiction to hear an appeal against a s. 14(1) decision, and given the drafting of s. 14(1), there can only have been a “decision” under s. 14(1) regarding the 2007-2008 tax year if a “claim” were before HMRC for that tax year. Further, the only way that there could be such a claim in the circumstances of the present appeal is if, as a result of the CAB Letter, the Appellant falls to be treated as having made a claim for tax credit on 6 April 2007 pursuant to reg. 11 of the 2002 Regulations, as read with reg. 5(3) of the 2002 Regulations. However, the Appellant cannot establish this, for the following four reasons.

 

47 First, the CAB Letter cannot constitute a declaration made by the Appellant within the meaning of reg. 11(2) of the 2002 Regulations. The CAB Letter was written by her representative, rather than the Appellant, and the Appellant did not sign it. Further, the Appellant does not argue that her case falls within either reg. 35 or reg. 36 of the 2006 Regulations, so as to permit her representative to act for her. (See also Judge Turnbull’s reasons in the notice of determination of application for permission to appeal, at p. 188).

 

48. Secondly:

32.1 The CAB Letter was not “in a form approved by” HMRC so as to fall within reg. 34(2)(a) of the 2002 Regulations, and it obviously cannot constitute an oral declaration for the purposes reg. 34(2)(b)) of the 2002 Regulations.

 

32.2 In addition, the CAB Letter does not fall within reg. 34(2)(c) of the 2002 Regulations: a declaration “in such other manner as the Board may accept as sufficient in the circumstances of any particular case”. As a matter of indisputable fact, HMRC did not accept the CAB Letter as a sufficient declaration.

 

32.3 As such, no “declaration” was made in accordance with reg. 34(2) of the 2002 Regulations. It follows that the CAB Letter cannot constitute a “declaration” for the purposes of reg. 11(2) of the 2002 Regulations.

 

49. Thirdly, HMRC does not consider that the CAB Letter contained sufficient information to be treated as a claim for tax credits in the 2007-2008 tax year in any event (see reg. 11(2) as read with reg. 5(3)) (see e.g. p. 78, §18 and p. 103, §11).

 

50. Fourthly, as the CAB Letter was sent after 31 July 2007, it could only amount to a claim made on 6 April 2007 if “in the opinion of the Board, the claimant had good cause for not making the declaration” by 31 July 2007: reg. 11(3)(aa) of the 2002 Regulations. HMRC has made no such finding. The Appellant therefore cannot bring herself within reg. 11(3)(aa). Again, in this regard, HMRC respectfully adopts Judge Turnbull’s reasons in the notice of determination of application for permission to appeal (p. 188).

 

51. It follows that the Appellant never made a “claim” for tax credits for the 2007-2008 tax year. Accordingly, HMRC cannot have (and has not) made a decision under s. 14(1) of the TCA.

 

52. Given the drafting of s. 38, and as regards the second, third and fourth reasons set out above, the FTT does not have jurisdiction to review any discretion exercised by HMRC under reg. 34(2)(c), reg. 5(3) or reg. 11(3)(aa) of the 2002 Regulations (or any failure to exercise any of these discretions). See Pendragon plc v. Jackson [1998] ICR 215, per Morrison J at 222 and 226.

 

53. It is thus respectfully submitted that the FTT lacked jurisdiction to entertain the Appellant’s purported appeal under s. 38 of the TCA, and the present appeal should accordingly be dismissed on this basis.

 

The ECHR

54. Neither Art. 6 nor Art. 1 of the First Protocol (“Art. 1FP”) affords a basis for rejecting the above domestic law analysis of the scope of the FTT’s jurisdiction.

 

55. Art. 6(1) provides in relevant part:

 

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.”

 

56. Save as regards those elements of the legislative scheme which grant HMRC discretion, HMRC accepts that a determination as to whether the Claimant is entitled to tax credit (or should be awarded tax credit) falls within the scope of Art. 6.

 

57. The FTT / Upper Tribunal can straightforwardly determine the merits of the first reason why (in HMRC’s submission) the CAB Letter did not amount to a claim for tax credit. If this first reason is accepted then the FTT / Upper Tribunal will be able to determine conclusively that it lacks jurisdiction to entertain the Appellant’s purported appeal, and this determination will have been reached in a manner that satisfies Art. 6.

 

58. Further, insofar as it is necessary to do so, the FTT / Upper Tribunal can equally rule on the second, third and/or fourth reason set out above at §§0-34, in the sense of determining whether or not, respectively, HMRC accepted the CAB Letter as a sufficient declaration under reg. 34(2)(c) of the 2002 Regulations; HMRC considered the CAB Letter sufficient for the purposes of reg. 5(3) of the 2002 Regulations and/or HMRC found that the Appellant had “good cause” for failing to make the declarations by 31 July 2007. Again, any such ruling by the FTT / Upper Tribunal would comply with Art. 6.

 

59. As has been submitted, the FTT / Upper Tribunal lacks jurisdiction to review the lawfulness of any discretion exercised by HMRC under reg. 34(2)(c), reg. 5(3) of reg. 11(3)(aa) of the 2002 Regulations (or any failure to exercise any such discretion). However, this equally does not give rise to a breach of Art. 6:

 

43.1 Art. 6 is not engaged by HMRC’s exercise of, or failure to exercise, these discretions (see Ali v. Birmingham City Council [2010] 2 AC 39, per Lord Hope at §§43 and 49). In particular, the exercise of these discretions does not concern a “civil right” to which the Appellant is (even arguably) entitled. They form part of the discharge of HMRC’s public law duties. As Art. 6 is not engaged, it follows that it cannot be breached;

 

43.2 In the alternative, even if Art. 6 is engaged, it is clear that it can be satisfied by the availability of judicial review. All that is lawfully required of HMRC is that, when exercising these discretions, it acts within the limits set by public law. The judicial review procedure is thus all that is needed to discharge the Art. 6 requirement of an independent and impartial tribunal to “determine” the relevant civil rights and obligations in question. See CTC/0031/2006, 20 December 2006, per Commissioner Levenson at §27. Further or in any event, the discretionary nature of these provisions indicates that judicial review is sufficient to satisfy Art. 6: see Runa Begum v. Tower Hamlets London Borough Council [2003] 2 AC 430, as endorsed by Lord Hope in §§53-55 of Ali.

 

60. Further, and contrary to e.g. the Appellant’s grounds of appeal at p. 175, A1FP  also has no impact in the present case. In particular, no interference with Art. 1FP rights arises if a person is refused a benefit on the basis that he does not satisfy, or ceases to satisfy, the legal conditions laid down in domestic law for the grant of the benefit: Rasmussen v. Poland (Application No. 38886/05), 28 April 2009, at §71. Thus if, as a matter of domestic law, the Appellant was not entitled to child tax credit for the 2007-2008 tax year (and/or could not have been awarded this tax credit for that tax year), there will have been no breach of Art. 1FP. “

 

 

Jurisdiction: Analysis and Conclusions

(i) Was there an appealable decision?

61. I do not find this question at all straightforward.

 

62. It is common ground that there was no claim, or anything which could be treated by HMRC as a claim, before the expiration of the primary time limit of 31 July 2007. Mr Tegg on behalf of the Claimant relies, however, on the CAB letter. That was sent prior to the (then) secondary time limit of 31 January 2008. In essence, that could qualify as a claim if (i) it enclosed or (if no separate document was enclosed) was itself a declaration either (a) “in writing in a form approved by the Board for the purpose” or (b) “in such other manner as the Board may accept as sufficient in the circumstances of the particular case” and (ii) “in the opinion of the Board the claimant had good cause” for not having made the declaration by 31 July 2007.

 

63. Mr Tegg contends that the First-tier Tribunal had jurisdiction to determine whether a claim was made, and as regards the discretions given to the Board to accept a claim other than on an approved form (or orally), and to accept a late claim for “good cause”, contends that in order to comply with Article 6 the First-tier Tribunal must either have jurisdiction to substitute its own decision for that of HMRC, or must at the least have jurisdiction to review on judicial review type grounds any exercise of a discretion by HMRC.

 

64. In para. 40 of his Skeleton Argement Mr Hooper accepts that a determination as to whether the Claimant should be awarded or is entitled to tax credit is a determination of her “civil rights”, for the purposes of Article 6. That is in my judgment clear from, for example, R(IS) 6/04 at para. 35, the decision of the ECHR in Tsfayo v. United Kingdom (application 608600/00), and CTC/0031/2006 at para. 19, on all of which Mr Tegg relies.

 

65. However, HMRC contends that (i) what is appealable is “a decision under s.14” and (ii) that on the wording of s.14 HMRC is only bound to make a decision “on a claim”. If there is no claim, then there is no decision under s.14 and therefore nothing which can be appealed. HMRC therefore contends that there was no appealable decision at all before the First-tier Tribunal.

 

66. I find some difficulty in accepting HMRC’s approach in its entirety. If HMRC’s approach were right, it would appear to deprive a claimant of the possibility of appealing to an independent tribunal even in relation to a purely factual dispute as to whether a claim had been made (e.g. whether a properly completed claim form had been received by HMRC). That would plainly be contrary to Article 6: see the authorities referred to in para 64 above. The facts of the present case did given rise to one purely factual dispute, namely whether a separate form of declaration, in proper form, had been enclosed with the CAB letter.

 

67. As I understood it, Mr Hooper sought to escape from that by submitting that the First-tier Tribunal would have jurisdiction to determine any such purely factual matters in the course of determining whether it had jurisdiction. In other words, it would have to determine whether a claim had been made in order to determine whether it had jurisdiction. Thus, he submits in para. 41 of his Skeleton Argument that if it is accepted that the CAB letter did not constitute a “declaration” “the FTT/UT will be able to determine conclusively that it lacks jurisdiction to entertain the Appellant’s purported appeal, and this determination will have been reached in a manner that satisfied Art. 6.”

 

68. The contention that what satisfies Article 6 is the First-tier Tribunal’s jurisdiction to decide factual issues in the course of determining whether it has jurisdiction me as a very odd, and probably unsatisfactory, one. Further, I doubt whether the analysis works. If HMRC’s primary submission that it makes no appealable decision under s.14 unless and until there is a claim were correct, I do not see how the First-tier Tribunal could ever have jurisdiction to determine whether a claim was made. Ex hypothesi, HMRC will have taken the view that there was no claim, and therefore will have made no decision one way or the other under s.14. Even if the Tribunal were satisfied that a claim had been made, the position would still be that no s.14 decision had been made (but merely that one ought to have been made), and there would therefore still be no appealable decision. The First-tier Tribunal would therefore have no jurisdiction to determine whether there had been a claim, because it would not be a matter going even to its jurisdiction.

 

69. In my judgment the correct analysis is probably that the words “an appeal may be brought against (a) a decision under section 14” in s.38 must be read as including a decision as to whether a claim has been made or must be treated under reg. 11 as having been made. Even as a matter of domestic law, that is the construction which I would be minded to reach. It seems to me to be perfectly sensible to say that “a decision under s.14” includes a decision as whether a claim has been made and therefore whether there is a need to consider whether to make an award of tax credit. The need to provide an Article 6 compliant right of challenge to a decision by HMRC (not turning solely on an exercise of discretion) as to whether a claim was made would seem to put the matter beyond doubt.

 

70. In my judgment, therefore, it is strongly arguable that there was an appealable decision.  In the final analysis, however, it is unnecessary for me to reach a final conclusion on that, because in my view it is clear that (i) the First-tier Tribunal did not go wrong in law in exercising such jurisdiction as it had and (ii) it had no jurisdiction to consider the lawfulness of, still less to exercise afresh, HMRC’s discretion as to whether to accept the CAB letter as a sufficient claim.

 

(ii) The extent of the First-tier Tribunal’s jurisdiction, if there was an appealable decision.

 

71. As I have said, it is common ground that nothing capable of amounting to a claim was done before 31 July 2007. As regards the reliance on the CAB letter, the First-tier Tribunal was in my judgment entitled to find as a fact that no separate form of declaration was enclosed with the CAB letter. Further, it was in my judgment clear that the CAB letter did not itself amount to “declaration …… in writing in a form approved by the Board for that purpose” within the meaning of reg. 34(2)(a) of the 2002 Regulations.

 

72. That means that the CAB letter could only have amounted to a claim if it was accepted by HMRC as sufficient, pursuant to the discretion given to it by reg. 34(2)(c) of the 2002 Regulations. I do not see how the First-tier Tribunal could have jurisdiction to decide anything more, in relation to the exercise of that discretion, than whether or not HMRC had in fact decided to accept the CAB letter as sufficient. On the construction of reg. 34(2)(c), the discretion is one vested in HMRC. Unless Article 6 requires it, I do not see on what basis it could be said that on an appeal the discretion becomes vested in the First-tier Tribunal, or even that the Tribunal is entitled to review HMRC’s exercise of the discretion on judicial review type grounds.

 

73. Mr Tegg referred me to R(H) 3/04, in which it was held that, on an appeal by a person from whom a local authority had decided to recover an overpayment of housing benefit, the exercise by the local authority of its discretion as to from whom the overpayment could be recovered could be challenged, but only on judicial review type grounds. That decision was subsequently held to be wrong, on the construction of the particular legislation (see R(H) 6/06). However, it was said in para. 39 of R(H) 6/06 that that conclusion “does not undermine the conclusion of the Tribunal of Commissioners [in R(H) 3/04] that a right of appeal against an exercise of discretion that is non-justiciable because the relevant considerations cannot be discerned must be limited to points of law.” However, the principle identified in R(H) 3/04 was stated as follows (see para. 47 of that decision):

 

“The principle that a public authority it not entitled to rely on its own improper or substantially defective use of a statutory procedure to obtain money from a person or deprive him of benefits is one of general application, which applies equally to the Secretary of State himself ….[c]hallenges on such grounds without the need for judicial review proceedings are within the jurisdiction of both Commissioners and tribunals on statutory appeals under the Social Security Acts (which are private law proceedings to determine individual rights, even if one party is a public authority or department of state): cf. also CAO v Foster [1993] AC 754, R(IS) 22/93.”

 

74. It seems to me that that principle has no application to an exercise of discretion by a public authority as to whether to accept a non-conforming claim for a social security benefit as valid.

 

75. Further, in my judgment Article 6 does not, on the present state of the authorities, require that a tribunal with full fact finding powers be given jurisdiction either to substitute its own exercise of such a discretion or to review the exercise of discretion on judicial review type grounds.

 

76. In CTC/0031/2006 Mr Commissioner Levenson (as he then was) held that, for Article 6 purposes, judicial review was an adequate remedy in the case of a challenge to HMRC’s exercise of the discretion conferred by reg. 5(2)(b) of the 2002 Regulations as to whether to accept a non-conforming claim as sufficient in the circumstances of the case.

 

77. In R(IS)6/04 Mr Commissioner Howell, while holding that Article 6 required there to be a right of appeal to a tribunal in relation to decisions by the Secretary of State as to whether a valid claim had been made, said that that did not apply in relation to decisions as to whether to accept a claim not on the prescribed form. In particular, he said:

 

“42. I also find of assistance and relevance the principles explained by Lord Slynn in R (Alconbury Developments Ltd) v. Secretary of State  [2001] UKHL 23; [2003] 2 AC 295 at paragraphs 49ff, in holding that where decisions on matters of discretion and judgment such as are involved in planning applications are concerned, the legal control of executive action provided by judicial review and the Wednesbury  principle of irrationality provides a sufficient compliance with Article 6, which does not in that context require a complete judicial rehearing of the merits of such discretionary or policy decisions on the facts of the individual case.

 

  43. That principle can, in my judgment, be quite clearly accepted as applying also to the kind of policy or discretionary decisions always reserved to the Secretary of State under the Claims and Payments Regulations, such as the personal and other details and information that claimants are required to supply in the official forms, and whether in a particular case an “informal” claim not on the prescribed form should be accepted by discretionary waiver of the requirements. Under the pre-1998 law those questions were “Secretary of State’s questions” and thus separate from the adjudication and appeal system, and are in my judgment within the principle approved by the House of Lords in Alconbury ….”

 

78. Mr Tegg placed reliance on the decision of the Court of Appeal in Novitskaya v London Borough of Brent [2009] EWCA CIV 1260. However, I do not think that that case is of any assistance because there was a provision in the legislation that if a claim was defective, it could in effect be cured by delivery of a duly completed claim form within a specified time. There was no doubt that, if a “defective claim” had been made, it had been cured by subsequent delivery of a completed form. The only issue was whether what was said be the original defective claim was a “claim” at all. The fact that, under that legislation, the First-tier Tribunal was considered to have jurisdiction to determine whether there had been a “claim” does not assist the Claimant in the present case.

 

79. Mr Tegg also referred me to the decision of the ECHR in Tsfayo v United Kingdom (2006) 48 EHRR 457, in which it was held that article 6 applied to a decision as to whether the claimant had had good cause for not making the claim in time, and that an appeal to a tribunal with full fact-finding jurisdiction was required, the possibility of judicial review of the review board’s decision not being sufficient. However, as the Court emphasised, the question there was simply whether the claimant had had “good cause” for not claiming in good time (and not whether “in the opinion of” the local authority or review board she had had good cause). As the Court said in para. 45:

 

“The Court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited in paragraph 43 above, the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the HBRB was deciding a simple question of fact, namely whether there was “good cause” for the applicant’s delay in making a claim……”

 

80. Mr Tegg also relied on the decision of the Supreme Court in Ali v Birmingham City Council [2010] UKSC 8; [2010] 2 AC 39, in which the Court distinguished the type of decision there in question from decisions as to entitlement to social security benefits. However, while the case clearly supports the proposition that a determination whether a person is entitled to child tax credit is a determination of his “civil rights” for Article 6 purposes, it does not in my judgment provide any support for a contention that Article 6 requires that HMRC’s exercise of its discretion as to whether to accept as sufficient a claim not on the prescribed form must be capable of review by a tribunal with full fact finding powers.

 

81. It can be argued on behalf of the Claimant that if some questions (e.g. the exercise by HMRC of its discretion whether to accept a non-conforming claim) are capable of challenge only by way of judicial review (in the Administrative Court), but others (e.g. whether a properly completed claim was sent or received) are capable of determination on an appeal, one has an unsatisfactory combination of potential remedies, which may require challenges to be brought in two jurisdictions, should a number of different questions arise in the same case. That may be so, but so far as I am aware it has not been held that Article 6 could be prayed in aid so as to require a fact finding tribunal to be given jurisdiction over issues over which it would not otherwise have jurisdiction. Arguments based on the convenience, as opposed to the absence, of a means of challenging a determination of civil rights are not, it seems to me, sufficient, save possibly in an extreme case.

 

82. The split between questions in relation to claims which could be appealed and questions which could not (Secretary of State’s questions) existed for many years under the social security legislation, and does not seem to have caused much trouble in practice. In any event, the practical disadvantages for a claimant are to some extent lessened by the possibility of the Administrative Court transferring a judicial review claim to the Upper Tribunal.

 

83. The effect of my decision, therefore, is that, in so far as the First-tier Tribunal had jurisdiction in this case, it was entitled on the facts before it to decide that the Claimant had not submitted a claim on the required form prior to 31 January 2008, and therefore was right to dismiss the appeal. The exercise by HMRC of its discretion whether to accept the CAB letter as a sufficient claim was capable of challenge only by way of judicial review. Because HMRC did not decide to accept the CAB letter as a sufficient claim, HMRC did not need to consider, under reg. 11(3)(aa), whether there was “just cause” for the delay.

 

84. I expressly leave undecided, because it does not arise, the question whether a decision by HMRC as to whether there was just cause is capable of challenge by way of appeal. It is in my view well arguable that the words “in the opinion of the Board” in reg. 11(3)(aa) do not prevent an appeal tribunal itself deciding whether there was just cause.

 

 Conclusion

85. Without prejudice to the question whether there was an appealable decision (which I leave undecided), I therefore dismiss the appeal.

 

86. However, it would be wrong to leave this case without remarking again on HMRC’s failure to answer the CAB letter until 25 February 2008 (see paras. 31 and 32 above). By that time the secondary time limit of 31 January 2008 had passed. Had HMRC made plain before 31 January 2008, as it surely ought to have done, that it did not consider that a claim had been made, the Claimant could have ensured that a declaration in proper form was sent, and could have again requested that HMRC treat the claim as dating from 6 April 2007 on the ground that she had had good cause for the delay. However, I do not see that this delay in responding to the CAB letter is something which can alter my decision. Any remedy in respect of it must lie elsewhere, if there is (or was) a remedy at all. I find it extraordinary that HMRC does not seem to have considered whether, as at the date of the CAB letter, there was good cause for the delay. If there was, the Claimant’s failure to claim by 31 January 2008 is surely substantially the fault of HMRC.

 

87. I also record that I was told during the hearing by Mr Hooper, on instructions, that the Claimant in any event ceased to satisfy the entitlement conditions for child tax credit in July 2007, when her child ceased full-time education. If so, then only a few months’ child tax credit is in issue in any event.

 

 

 

 

 

 

(Signed)

 

Charles Turnbull

Judge of the Upper Tribunal

16 May 2011