Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CTC/3901/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Fox Court on 23 April 2012 under reference SC242/11/09935 involved an error on a point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.  

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

 

DIRECTIONS

 

 

Subject to any later Directions by a District Tribunal Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

(1)            The new hearing will be at an oral hearing.

 

(2)           If the appellant has any further evidence that he wishes to put before the tribunal this should be sent to the First-tier Tribunal’s office in the Sutton Appeals Service Centre within one month of the date this decision is issued.

 

(3)           The First-tier Tribunal should have regard to the points made below.

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.                In giving the appellant permission to appeal on 11 December 2012 I said:

 

“The sole basis on which I grant permission to appeal is that it seems arguable from the papers before me that the appeal was decided by the First-tier Tribunal without [the appellant] having had sight of the HMRC’s appeal response or the documents it relied on.  In these circumstances, which ought to have been known to Judge Sidhu, it is difficult at present to see how he could properly decide that the appeal could “fairly and justly be dealt with” on 23.04.12 (see page 111).

 

The appeal was admitted as a late appeal by the First-tier Tribunal on 21.09.11.  When the full appeal response was then submitted by HMRC to the First-tier Tribunal it had with it a covering letter dated 10.0[1].12. This said that due to data security issues “a copy of the response and the schedule of evidence has not been issued to the claimant per the normal requirement in Rule 24(5) of the Tribunal Procedure Rules”.  There was no reference in this letter to any part of the relevant Tribunal Procedure Rules that allowed HMRC to withhold evidence from the appellant. The letter went on to ask that a Judge consider as a preliminary issue whether the response and schedule of evidence should be issued to [the appellant] and provide such directions “for HMRC as considered appropriate”. There is no evidence before me – either on the Upper Tribunal file or the First-tier Tribunal file – to indicate either (a) that this letter was ever put before a Judge of the First tier-Tribunal, or (b) that directions were issued either requiring disclosure or precluding it, or (c) that the appeal response and evidence was ever sent to [the appellant] before the appeal was decided on 23.04.12.  On the face of it [the appellant] is therefore correct to say that he never received HMRC’s appeal bundle.

 

If this is correct then it is strongly arguable that [the appellant’s] right to a fair hearing of his appeal under article 6(1) of the European Convention on Human Rights was breached. Moreover, it is also arguable that absent any direction from the First-tier Tribunal waiving the requirement in rule 24(5) of the TPR that HMRC must send a copy of its appeal response to [the appellant], HMRC erred in law by breaching rule 24(5) and that error in the proceedings also means that the First-tier Tribunal erred in law.”

 

2.               The respondent supports the appellant’s appeal to the Upper Tribunal, in a helpful submission dated 1 March 2013, and accepts that the appellant did not receive HMRC’s written appeal response before the tribunal decided the appeal.

 

3.               In his observations in reply the appellant says he has no further comment but he asks for an oral hearing of his appeal to the Upper Tribunal so as to be “able to answer all accusations against me”. I reject this request for a hearing of this appeal to the Upper Tribunal. It is, I think, based on a misunderstanding about what the appeal to the Upper Tribunal is concerned with. 

 

4.               The task for the Upper Tribunal is to identify whether the First-tier Tribunal made any material error of law in coming to its decision. It is not concerned with deciding the factual merits of the case or whether tax credits ought to be awarded. An oral hearing before the Upper Tribunal would thus be about errors of law and not the factual merits, and so would not be concerned with factual issues such as those the appellant is here concerned about. Those issues will be dealt with at the hearing before the First-tier Tribunal which I have here directed and which the appellant will be able to attend.

 

5.               In my judgment, the tribunal erred in law by deciding the appeal when the appellant had not had sight of the respondent’s written appeal response. That was a fundamental breach of his right to a fair trial. In the absence of any direction from the First-tier Tribunal allowing HMRC’s written appeal response not to be served on the appellant, the respondent was required to serve the response on the appellant at the same time as it served the response on the First-tier Tribunal: see rule 24(5) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber Rules) 2008 (the “TPR”).  As no such direction was made, HMRC was under a mandatory legal duty to serve the response on the appellant. Its failure to do so, absent any direction from the First-tier Tribunal allowing it not to do so, rendered the proceedings below fundamentally unfair.  

 

 

 

6.               That is sufficient to dispose of this appeal. I comment briefly, however on one other, related matter: “briefly” because I have had no argument directed to the point.  The respondent’s ground for asking that the appeal response not be issued to the appellant was because it was concerned that he was not living at the address he was relying on and “the data security issues which inevitably arise as a result of this”: see HMRC’s letter to First-tier Tribunal of 10 January 2012 (page 140).  In so far as the concern of HMRC arose from the requirements in respect of “personal data” under the Data Protection Act 1998 it may be that that concern is misplaced or wrongly founded given that under section 35 of the Data Protection Act 1998 personal data is exempt from the non-disclosure provisions if “disclosure is required by or under any enactment, by any rule of law or by order of the court”.  Those words would seem to encompass rule 24 of the TPR. 

 

7.               However, even if the section 35 of the Data Protection Act 1998 is not relevant, the important procedural point to make is that if HMRC wishes to absolve itself of its duty to provide its written appeal response to an appellant (or his representative or any other party to the appeal), it must first makes its case to the First-tier Tribunal and obtain the tribunal’s direction to that effect.

 

8.               HMRC’s written appeal response has in fact been disclosed to the appellant in the course of the Upper Tribunal proceedings, and therefore the lack of the appeal response no longer matters as an issue of fact.

 

9.               It is for the above reason that the tribunal’s decision dated 23 April 2012 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Social Entitlement Chamber). 

 

10.            The appellant’s success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether his appeal will succeed on the facts before the First-tier Tribunal, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

 

Dated 6^th September 2013