Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case Nos.  CTC/2325/2011

ADMINISTRATIVE APPEALS CHAMBER CTC/2326/2011

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellants: Mr Martin Williams, Welfare Rights Worker

Child Poverty Action Group

 

For the Respondent: Mr James Cornwell, Counsel, instructed by Solicitor to HM Revenue and Customs

 

 

Decision: The appeals are allowed.  The decisions of the First‑tier Tribunal sitting at Manchester on 3 May 2011 under references SC946/10/06338 and SC946/11/00924 involve the making of an error of law and are set aside.  Acting under section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007 I substitute the decision which the tribunal ought to have given, namely that, applying section 3(1) of the Human Rights Act 1998, section 14 of the Tax Credits Act 2002 fell to be read so as to confer upon the tribunal jurisdiction to consider the appeals  against the rejection of the appellants’ claims for tax credit to the extent that the appeals were made on the ground that regulation 5(8) of the Tax Credits (Claims and Notification) Regulations 2002/2014 applied; and that, the female appellant being a “person subject to immigration control” within the meaning of section 115(9)(a) of the Immigration and Asylum Act 1999, the claims for tax credit could not lawfully be rejected for failure to comply with any of the requirements of para (4) of regulation 5. 

 

REASONS FOR DECISION

 

What this case concerns

 

1. This case concerns the correct means of adjudicating upon a dispute as to whether certain formalities required as part of a claim for child tax credit have been complied with. 

 

2. The appellants, Mr M and Mrs B were at all material times a “couple” for tax credit purposes.  Mr M is a Bengali speaker, requiring the assistance of an interpreter in his dealings with HMRC and with the First-tier Tribunal.  Although there is no direct evidence before me as to Mrs B’s abilities in the English language, there is no reason to suppose that they are any better.

 

3. Mrs B was (it is now accepted) at the material times a “person subject to immigration control” within section 115(9)(a) of the Immigration and Asylum Act 1999, which provides:

 

(9) “A person subject to immigration control” means a person who is not a national of an EEA State and who—

(a) requires leave to enter or remain in the United Kingdom but does not have it;

…”

 

4. There are only limited circumstances in which a “person subject to immigration control” is entitled to tax credits.  Particulars can be found in regulation 3 of the Tax Credits (Immigration) Regulations 2003/653 and need not be set out here, but it is not in dispute that Mrs B, if otherwise entitled to tax credits, fell within their ambit.

 

5. Entitlement to a tax credit is dependent on the making of a claim for it:  Tax Credits Act 2002 (“TCA”), section 3(1).  Members of a “couple” are required to make a joint claim:  TCA section 3(3) and (5A). 

 

The decision-taking process

 

6. When they did so, their claim was refused by decisions dated 13 January 2010 and 19 May 2010.  The circumstances in which this happened are a little unclear, not least because, as recorded, those decisions did not fully address the decision which it appears the HMRC in fact took.

 

7. As recorded , the decision of 13 January 2010 stated that:

 

“On 14 September 2009 HMRC decided [Mr M] had not made a claim for tax credits in accordance with the regulations. This was because [Mrs B], his partner, did not have a National Insurance number (NINo), it was not possible to allocate one and HMRC has not waived the requirement for a NINo in this case.”

 

8. Quite why the decision of 13 January 2010 took the form of recording what HMRC had apparently already decided on 14 September 2009 is unclear to me, but I do not think anything turns on it.

 

9. The decision of 19 May 2010 was (apart from the reference to the September 2009 decision) in similar form.

 

10. The decision notices were referring to the requirement, discussed further below,  that a person applying for tax credit is required either to have a National Insurance number (“NINO”) or to meet any of the alternative requirements in respect of a NINO prescribed by reg 5(4) of the Tax Credits (Claims and Notification) Regulations 2002/2014  (“the Claims and Notification Regulations”) before their  claim for tax credit can be valid.  That requirement does not, however, apply to any person who is subject to immigration control within the meaning set out in section 115(9)(a) of the Immigration and Asylum Act 1999 and to whom a national insurance number has not been allocated: reg 5(8), introduced with effect from 6 April 2009.

 

11. The appellants sought to appeal against the refusals to the First‑tier Tribunal.  The tribunal’s decisions on 3 May 2010 were that it did not have jurisdiction to entertain the appeals.  Against those decisions, the appellants now appeal to the Upper Tribunal with my permission, given on 21 September 2011.  The respondent has since conceded, in a submission dated 19 January 2012, that the claims were not invalid because of Mrs B’s inability to provide a NINO or otherwise meet the NINO requirements and has agreed to make an award of tax credit, the calculation of which was still pending at the time of the oral hearing before me (and would carry (or would have carried) fresh appeal rights if there proved to be a dispute about it.)  However, together with Child Poverty Action Group, who are representing them, the appellants wish to continue with the present appeal, so that the issue of whether the First‑tier Tribunal has jurisdiction to entertain an appeal of the type in issue in this case can be clarified for the benefit of others in a similar position. 

 

12. I held an oral hearing on 26 November 2012 and am grateful to both representatives for their submissions. In January 2013 I issued a draft decision, inviting submissions limited to matters arising from identified paragraphs in the draft decision, which in essence concerned the steps which I considered were needed in order to comply with the duty imposed by section 3 of the Human Rights Act 1998.  The submission on behalf of the respondent took a view of the extent of the topic on which a submission was being invited that may fairly be described as generous,  to the extent that to a degree it ended up revisiting old ground.  This led the submission for the appellants to do likewise.  Not without hesitation, I have taken them fully into account.

 

What was the subject-matter of the dispute?

 

13. It is important, and by no means easy, to identify exactly what was in dispute.  If Mrs B fell within reg 5(8), then it was irrelevant whether or not she was caught by reg 5(4) or not, because it did not apply to her.  HMRC had recorded, some four months prior to the decision of 13 January 2010 that Mrs B did not have leave to remain in the UK.  If one reads the decision as recorded, standing alone, one might infer either that the existence of reg 5(8) had simply been overlooked and so the provision not applied (an error of law) or that, if HMRC had sought to apply it, it had overlooked the consideration (a material one unless her circumstances had meanwhile changed, of which there is no suggestion) that Mrs B was indeed, as HMRC had previously recorded, a “person subject to immigration control” (also an error of law.)

 

14. However, it is clear from material before the First-Tier Tribunal that on 11 January 2010, Ms B had an interview with the DWP in connection with her application for a NINO.  The application was unsuccessful, in that she was unable to prove her identity, and that it was this that was the catalyst for the decision by HMRC on 13 January 2010. 

 

15. As noted above, in a submission to the Upper Tribunal dated 19 January 2012, HMRC conceded that the claim should be accepted.  Part of that submission read as follows:

 

“10. In this particular case the position was that the immigration status in this case was not known because HMRC were unable to establish the claimant’s identity.  The only way HMRC can decide whether the provisions of reg 5(8) come into play is if they can confirm the identity of the claimant and so establish whether or not their immigration status brings that regulation into play.  If the claimant fails to establish their identity, then the question cannot be decided.

 

11. However, having reviewed the whole bundle it is clear that [Mrs B’s] immigration status did bring into play reg 5(8) and the requirement to have a NINO should have been waived.

 

…

 

13. It is clear that [Mrs B] had a reasonable excuse for not producing the documents requested and clear that both [Mr M and Mrs B] have not understood the request from DWP in what documents they should have produced at the interview.” “

 

16. I accept, as does Mr Williams, that it was for Mrs B to prove that she fell within reg 5(8). If she could not prove her identity, it was unlikely that she would be able to.  I do not agree with the submission that “if the claimant fails to establish their identity, then the question cannot be decided”: it can – against the claimant.  Post First-tier Tribunal evidence suggests that Mrs B attended the interview without any relevant documents and that the Home Office told the DWP it had no record of any application by her which would have accounted for where her identity documents might be.  In those circumstances, one can understand why the DWP (and, adopting a similar position, HMRC) were not satisfied as to Mrs B’s identity.  It would have been helpful in avoiding much of the confusion that has affected this case if HMRC had done so and added to its formal decision words along the lines of “and the claimant Mrs B has failed to establish that she is entitled to the benefit of para 5(6) or 5(8)” or some such.

 

17. Strictly speaking, it was also not a question of “waiving” the requirement for a NINO: there is, under reg 5(8) without more, no such requirement in respect of a  person to whom reg 5(8) applies.

 

18. However, the key point emerging from the submission is that it is now clear what was the basis of HMRC’s decision-taking.  The issue was not one of law alone, but of fact.  Regulation 5(8) had not been overlooked, but the conditions for its application were considered not to have been made out.  Whether the person applying for tax credit and a NINO was or was not Mrs B was a question of fact.  So, at least in substantial measure, was whether the person concerned, subsequently accepted as Mrs B, was indeed a “person subject to immigration control”.

 

19. Against that background, I now turn to the law.

 

Tax credits – the relevant legal framework

 

20. The manner in which a claim for tax credit is to be made is set out in regulation 5 of the Claims and Notification Regulations: 

 

“5.— Manner in which claims to be made

 

(1) This regulation prescribes the manner in which a claim for a tax credit is to be made.

 

(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).

 

(4) In particular, a claim must include in respect of every person by whom the claim is made—

(a) a statement of the person's national insurance number and information or evidence establishing that that number has been allocated to the person; or

(b) information or evidence enabling the national insurance number that has been allocated to the person to be ascertained; or

(c) an application for a national insurance number to be allocated to the person which is accompanied by information or evidence enabling such a number to be so allocated.

This paragraph is subject to paragraphs (6) and (8).  

 

(5) “National insurance number” means the national insurance number allocated within the meaning of regulation 9 of the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001.

 

(6) Paragraph (4) does not apply if the Board are satisfied that the person or persons by whom the claim was made had a reasonable excuse for making a claim which did not comply with the requirements of that paragraph.

 

(7) At any time after a claim has been made but before the Board have given notice of their decision under section 14(1) of the Act in relation to the claim, the person or persons by whom the claim was made may amend the claim by giving notice orally or in writing to a relevant authority at an appropriate office.

 

(8) Paragraph (4) does not apply to any person who is subject to immigration control within the meaning set out in section 115(9)(a) of the Immigration and Asylum Act 1999 and to whom a national insurance number has not been allocated.”

 

21. I interpret this as saying that while it is for the Board (now HMRC, the present Respondent) to determine the content of the form (para (2)) and to sanction the incomplete provision of the information required by the form (para (3)), there is a mandatory requirement to provide one of the matters listed in sub‑paras (a) to (c) of para (4), subject only to paras (6) to (8).  The source of that obligation is not HM Revenue and Customs, but the legislator of the Claims and Notification Regulations.  The words “in particular” at the start of para (4) are somewhat odd, but it is clear in my view, and Mr Cornwell does not suggest otherwise, that the requirements with respect to NINOs are intended, subject as above, to be mandatory.

 

22. A person who can establish that he or she falls within para (8) and in respect of whose claim there was no complaint otherwise than in respect of non-compliance with para (4) would be entitled to have the claim determined.  Section 14 of the TCA provides:

 

“14 Initial decisions

 

(1) 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.”

 

23. Conversely, failure to bring oneself within para (8), or para (6), or to comply with the requirements of para (4) would mean that the duty on the respondents under section 14 was not triggered. 

 

24. I was told by Mr Cornwell that in its decision taking to determine whether there is a valid claim under regulation 5, the respondent is not subject to any statutory procedure; and its internal procedures allow for a review by the same section, which may or may not fall to be undertaken by the same officer who took the original decision, or by another one, depending on who is available at the relevant time.

 

25. If, following such a process, there remains a dispute, how does it fall to be dealt with?  TCA section 38 provides:

 

“38 Appeals

 

(1) An appeal may be brought against—

(a) a decision under section 14(1), 15(1), 16(1), 19(3) or 20(1) or (4) or regulations under section 21,

(b) the relevant section 18 decision in relation to a person or persons and a tax credit for a tax year and any revision of that decision under that section,

(c) a determination of a penalty under paragraph 1 of Schedule 2, and

(d) a decision under section 37(1).

 

(2) “The relevant section 18 decision” means—

(a) in a case in which a decision must be made under subsection (6) of section 18 in relation to the person or persons and the tax credit for the tax year, that decision, and

(b) in any other case, the decision under subsection (1) of that section in relation to the person or persons and the tax credit for the tax year.”

 

26. Mr Williams submits first that, although it does not say so in terms, there is nonetheless a right of appeal under domestic law against decisions that an attempted claim is non‑compliant with regulation 5. 

 

27. He bases this on a comparison between sections 8 and 12 of the Social Security Act 1998 on the one hand and sections 14 and 38 of the TCA on the other.  Just as section 38 confers a right of appeal in respect of decisions taken by HMRC under section 14 “on a claim for tax credit”, he says, section 12 of the 1998 Act confers a right of appeal inter alia on decisions made “on a claim for … a relevant benefit.”  He relies on the decision of Mr Commissioner Howell QC in R(IS) 6/04:

 

“13. It is inherent in the Secretary of State’s case that decisions of the kind in point here (namely whether on the facts the prescribed requirements to constitute a valid claim have been complied with and if so the date at which that was so) fall within the general class of decisions “made on a claim for … a relevant benefit” within section 12(1)(a) above. That is necessarily implicit in his reliance on the regulations referred to below as excluding such decisions from the right of appeal under Schedule 2 to the Act or directly under section 12(2); but in any event, insofar as there may be thought to be any doubt about the point, I am satisfied that decisions on such questions concerning claims do, as a matter of ordinary construction, fall within the class of those made “on a claim” for the purposes of section 12(1)(a). To hold otherwise would involve saying that Parliament itself intended to legislate away the pre-existing appeal rights consistently upheld under the previous law, and leave it to the discretion of the Secretary of State alone to legislate them back in again if he chose, by regulations under section 12(1)(b) and Schedule 3. In my judgment that is not the effect of section 12, and the Secretary of State did not so argue.”

 

28. I am unable to infer that Parliament in passing the TCA intended to carry across the approach of section 12 of the 1998 Act and its associated case law to sections 14 and 38 of the TCA.  The introduction of tax credits was a significant change of approach, reflected not only in the allocation of responsibility to HMRC rather than to the Department for Work and Pensions, but in the adoption of a host of techniques with their origins in tax law and administration rather than those of social security.  Rather than a rigorous decision-taking process in which benefit is awarded on a weekly basis, tax credit awards are typically made for a year at a time.  They are made on effectively an interim basis, with ensuing adjustment, using different techniques from the tightly circumscribed techniques of revision and supersession which lie at the heart of social security decision-taking.  Where section 12(1)(a) of the 1998 Act adopts for benefit claims the approach that an appeal lies against any decision on a claim for benefit unless excluded, section 38 proceeds by way of conferring a right in respect of a specific list of types of decision.  If an appeal is made, HMRC has the power to settle it acting under section 54 of the Taxes Management Act 1970, whereas the Department for Work and Pensions has no such power.

 

29. In my view the overall scheme of the tax credit legislation is such that it is impossible to infer on a general level any continuity of approach between social security and tax credits and any similarity of language there may be is only a reflection of the need to use ordinary English words to describe processes of claiming and deciding which are necessarily common to any situation where an individual is seeking payment of a cash sum from the State.  The structure of sections 14 and 38 was adopted by Parliament deliberately.

 

30. Mr Williams also prays in aid the housing benefit scheme, although I do not think that this adds materially to his argument based on the 1998 Act.  I derive little assistance from R(H)3/05, whose statutory context was a different one from that with which I am now concerned.

 

31. Mr Williams argues that these decisions show that it is possible to read language in the tax credit legislation concerned with making decisions “on a claim” as including making a decision about whether there has been a claim.  I accept that it may be arguable, as obiter remarks in SG v HMRC (TC) [2011] UKUT 199 (AAC) and more recently JI v HMRC (TC) [2013] UKUT 199 (AAC) suggest, but the task for me is to apply the words in their particular legislative context and for the reasons above I am not persuaded that there they do bear the meaning claimed.

 

Domestic law – conclusion

 

32. I therefore conclude that there is no reason to apply R(IS) 6/04 to section 14 of the TCA or otherwise to conclude that the ambit of that section, using conventional domestic techniques of interpretation, extends to confer a right of appeal against a decision that a claim is incomplete.  I reject Mr Williams’ submission that SG v HMRC (TC) [2011] UKUT 199(AAC) and CTC/31/2006 (both of which I consider further below in relation to human rights arguments) were, in the ratio of their conclusions as to UK domestic legislation, wrongly decided.  ( I am using “domestic” as shorthand  meaning “other than human rights legislation”, though it is of course an Act of the UK Parliament which I am applying in the next section also.)  The conclusion in this paragraph is, however, subject to the effect of the Human Rights Act 1998 (“HRA”), to which I now turn.

 

Human Rights Law

 

33. The following provisions of the HRA are relevant: 

 

“3.— Interpretation of legislation.

 

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

 

(2) This section—

(a) applies to primary legislation and subordinate legislation whenever enacted;

(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

 

6.— Acts of public authorities.

 

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

 

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

 

(3) In this section “public authority” includes—

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

…

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

 

(6) “An act” includes a failure to act but does not include a failure to—

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.

 

Article 6

 

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

…”

 

34. There was no dispute before me that a determination which bore directly on a person’s entitlement to tax credit amounted to a “determination of his civil rights”.  As the amount of tax credit is a cash payment capable of arithmetical calculation in accordance with statutory rules, that must be correct on the authorities reviewed in Tomlinson and Others v Birmingham City Council [2010] UKSC 8.

 

35. The particular question with which we are concerned is that which arises under regulation 5(8) of the Claims and Notification Regulations.  UK domestic law, as has been seen, provides only for it to be determined by the respondent.  There is no statutory mechanism for review such as there was in, for instance, the homelessness case of Runa Begum v LB Tower Hamlets [2003] UKHL 5.  There is under domestic law no statutory appeal.  There is, however judicial review. 

 

36. The decision in Albert and Le Compte v Belgium (1983) 5 EHRR 533 made clear that even if the body taking the decision did not itself meet the requirements of Article 6, it was sufficient if it was “subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6(1).”  Lord Hoffmann noted in R v Secretary of State for the Environment Ex parte Alconbury Developments Ltd., [2001] UK HL 23 that, in the phrase quoted above:

 

““full jurisdiction” does not mean full decision‑making power.  It means full jurisdiction to deal with the case as the nature of the decision requires.” 

 

37. Several of the issues arising under regulation 5 are clearly matters of discretion for the respondent, such as when something may be accepted as a claim when not made on the relevant form: see CTC/31/2006, or, as Mr Williams in this case concedes, whether HMRC is satisfied under regulation 5(6) that a claimant had a reasonable excuse for making a claim non-compliant with regulation 5(4).  Whether regulation 5(8) is met is, however, not one of them.  It will typically raise questions of fact about people’s nationality, about the circumstances in which they entered the UK, whether and when they made applications for leave to enter or remain and the status and outcome of those applications and possibly (as in this case) about whether people can satisfactorily establish that they are who they claim to be.  Questions of law may also arise.  These are not matters in which HMRC can be presumed to have any special expertise and there is no role for HMRC to exercise any discretion in answering them.

 

38. Alconbury had been considering whether Article 6 required an appellate tribunal to be able to review decisions based on policy.  The position where the question was one of fact was examined in Runa Begum v LB Tower Hamlets [2003] UKHL 5.  Lord Hoffman there drew a distinction based on the context in which a decision on the facts arose.  He contrasted the earlier case of Bryan v United Kingdom (1995) 21 EHRR  342, which had concerned a determination whether a person had breached planning control, a determination which would be binding against him in any subsequent criminal proceedings for failure to comply with the enforcement notice served in respect of the breach.  Lord Hoffmann explained at [42] that:

 

“42. A finding of fact in this context seems to me very different from the findings of fact which have to be made by central or local government officials in the course of carrying out regulatory functions (such as licensing or granting planning permission) or administering schemes of social welfare such as Part VII.”

 

“Schemes of social welfare” is a broad and non-technical phrase.  There are many measures that could be viewed as such that were not before the House of Lords in Runa Begum.  The use of “such as” suggests that Lord Hoffman  was concerned not only with the scheme of homelessness which was before him in that case but also intended his remarks to be applicable to other schemes which had similar attributes, an indication of what those attributes might be being available from [56] of Runa Begum, discussed at [39] below.

 

39. He went on to comment at [43] that “utilitarian considerations have their place when it comes to setting up, for example, schemes of regulation or social welfare.”  At [44] he cited with approval the dissenting opinion in Feldbrugge v the Netherlands (1986) 8 EHRR 425, which expressed the concern that:

 

“Judicialisation of procedures for allocation of public welfare benefits would in many cases necessitate recourse by claimants to lawyers and medical experts and hence lead to an increase in expense and the length of the proceedings.”

 

40.The central part of Lord Hoffman’s review of the authorities appears in Runa Begum at [56]:

 

“56. The key phrases in the judgments of the Strasbourg court which describe the cases in which a limited review of the facts is sufficient are "specialised areas of the law" (Bryan's case, at p 361, para 47) and "classic exercise of administrative discretion" (Kingsley's case, at p 302, para 53)…. It seems to me that what the court had in mind was those areas of the law such as regulatory and welfare schemes in which decision-making is customarily entrusted to administrators.  And when the court in Kingsley spoke of the classic exercise of administrative discretion, it was referring to the ultimate decision as to whether Kingsley was a fit and proper person and not to the particular findings of fact which had to be made on the way to arriving at that decision. In the same way, the decision as to whether the accommodation was suitable for Runa Begum was a classic exercise of administrative discretion, even though it involved preliminary findings of fact.”

 

(Kingsley v United Kingdom (2002) 35 EHRR 177 concerned whether Kingsley was a fit and proper person to hold a management position in the gaming industry.  The court indicated that it rejected Kingsley’s contentions that, because of what was at stake for him, he should have had the benefit of a full court hearing on both the facts and the law.)

 

41. I accept that making the findings of fact needed to determine that a person is a “person subject to immigration control” and so that their application for tax credit is not invalidated by virtue of their failure to provide a NINO or otherwise to meet the requirements of regulation 5(4) is not an end in itself but something which had to be done along the way.  The question is, on the way to what?  The answer is that it is on the way not to something which required an administrative weighing up of something as complex as whether someone is a fit and proper person, or whether, given the available housing stock and conflicting demands upon it, accommodation is suitable, but to determining whether a person was entitled to a benefit calculated in accordance with prescribed rates.  Determining eligibility for such a cash benefit is not a matter which is customarily “entrusted to administrators” (to use the phrase used in Runa Begum).  The roles in such a regard of the DWP, local authorities and (in relation to child benefit) HMRC themselves are all subject to provisions conferring a statutory right to have decisions looked at by an independent tribunal, not merely entrusted to administrators.  (As already noted, in the social security field generally, this extends to adjudication specifically on whether a claim form is complete.)  While I note and respectfully agree with the caution expressed by Lord Hoffman in Runa Begum at [59] that courts should be slow to conclude that Parliament has produced an administrative scheme which does not comply with constitutional principles, in my view, therefore, applying the guidance in Runa Begum nonetheless leads to the conclusion that, if I am in a position to do so, I should interpret the relevant legislation in a way which is compatible with what I consider Article 6 requires, namely a right of appeal against a decision based on reg 5(8).

 

42. Such an approach appears consistent with the decision of the European Court of Human Rights in Tsfayo v United Kingdom (2006) 48 EHRR 457.  In that case, the issue was whether the claimant had “good cause” for not having claimed earlier.  The statutory test did not express it in terms of the subjective opinion of the decision maker.  The Court held that Article 6 required an appeal to a tribunal with full-fact finding jurisdiction and that judicial review would not provide a sufficient alternative.  At para 45 the Court indicated that

 

“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……”

 

43. The issue in Tsfayo was not the same but I take the view that, as in that case, what is involved here is a “simple question of fact”.  For the reasons below I also take the view that in the present case, as in Tsfayo, judicial review would not provide an adequate process.

 

44. In considering what article 6 requires in relation to the dispute in this case, I gratefully adopt the summary of principle from the Judicial Review Handbook, by Michael Fordham QC, 6^th Edition at para 17.3:

 

“Judicial review has often been said to be unsuitable for  deciding disputed facts.  Put simplistically, that is an overstatement.  Undeniably, in general: (1) questions of fact are for the defendant body; (2) a fact-adjudication alternative remedy will be preferable; and (3) judicial review claims with factual disputes can be transferred out of CPR 54.  Importantly, however, the judicial review Court may need to make findings of fact (with or without oral evidence), especially if crucial to whether a ground for intervention is made out.  Where necessary, judicial review can and must be a suitable forum for deciding questions of fact, and must adopt the necessary means to do so.”

 

I accept that for the purposes of this decision that if an individual claimant of tax credit were able to get an application for judicial review off the ground (and I do not underestimate the difficulties in getting even that far), the Administrative Court (rather than the Upper Tribunal, as the matter does not fall within the terms of the Lord Chief Justice’s Direction on Classes of Cases Specified under Section 18(6) of the Tribunals, Courts and Enforcement Act 2007) would have the tools necessary to enable it to make factual enquiry on a judicial review application, unusual though such a step might be.  R(Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419, cited by Mr Cornwell in submissions does, I accept, provide an illustration of such an approach.  However, the context (an important factor: see Wilkinson at [23]) in which the Court of Appeal was wiling to order cross-examination in judicial review proceedings (and so by implication to countenance resolving a dispute of fact) was a very different one, concerning the treatment of a psychiatric patient without his consent, with a potential risk even of death.  There, the “prospective Convention breaches alleged are either fundamental (those now asserted under article 2 and 3) or such as obviously raise questions of necessity and proportionality (those asserted under articles 8 and 14)” (see Wilkinson at [25]).  Although as Mr Cornwell points out the Administrative Court would have to do what was necessary in order to comply with article 6 (and I note the obiter observations in that regard of Simon Brown LJ in R(Mullen) v Home Secretary [2002] 1 WLR 1865) at [30], it might be thought that given the conventional approach to fact-finding in judicial review, a claimant in this less than extreme situation than was the patient in Wilkinson might face some difficulties in persuading the court that such steps were necessary.

 

45. Nor am I helped by the “precedent fact” cases such as R(A) v Croydon LBC [2009] UKSC 8; [2009] 1 WLR 2557.  The present case is not concerned with whether a condition is fulfilled which requires to be satisfied before a statutory discretion can be exercised.  If a decision under regulation 5(8) goes in favour of a claimant, unless there is something else wrong with their claim (i.e. other than by virtue of the inapplicable regulation 5(4)) their claim will fall to be determined in accordance with the relevant legislation as a matter of entitlement.

 

46. However, it is not on the above point that I base my decision.  Rather, the reason why I do not consider that the judicial review provides an Article 6 compliant remedy in this class of case is because it generally concerns itself with the decision-taking by the public body on the evidence that was before it at the time.  As I remarked in my draft decision, that principle is subject to a small number of exceptions, none of which appears to be material here.  Mr Cornwell has taken up the opportunity provided by my Direction for limited further submissions in an attempt to persuade me otherwise, but unsuccessfully.

 

47. He first points out that a court which considers that relevant considerations have not been taken into account may end up looking at the evidence behind those considerations.  However, it is not easy to see how, in relation to a provision which asks what is essentially a question of fact, rather than providing a discretion to which a number of factors are relevant, the doctrine could be relied upon so as to require a court to go behind the evidence that had been available to the decision maker, rather than confining itself to examining what regard the decision-maker did or did not have to it.

 

48. Mr Cornwell then seeks to rely on the jurisdiction of a court in judicial review over certain mistakes of fact sufficient to constitute a mistake of law: see E v Secretary of State for the Home Department [2004] EWCA Civ 49.  I accept that a party seeking to establish an error of fact may be pointing to evidence that the decision-maker was unaware of; however, the ability successfully to assert such an error as amounting to an error of law is carefully circumscribed by the decision in E, including by the requirements that the evidence be uncontentious and objectively verifiable and that the claimant and his advisers must not have been responsible for the mistake.

 

49. Then, reliance is placed on Secretary of State for Education v Tameside MBC [1977] AC 1014 at 1065B as imposing a duty on the decision-maker, with the consequence that asking whether the duty had been discharged would often involve looking beyond the material before the decision-maker.  However, the passage to which Mr Cornwell refers relates to the exercise of a discretion, asking in Lord Diplock’s words (after reciting the Wednesbury test):

 

“Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”

 

Even in the context in which it is asked, it is concerned only with whether the decision-maker undertook reasonable investigation.  If he had, there would be no room for further evidence.

 

50. I accept, turning to the next category, that in human rights cases a court has to consider the substance, but that is looking at when the facts might determine whether there was infringement, including associated issues of proportionality and justification.

 

51. Thus I remain of the view previously expressed. I do not dispute that there are types of case where a court exercising judicial review powers may look at evidence other than that which was before the decision-taker, but that is the exception rather than the rule and the exceptions do not appear likely to apply in this type of case.  I accept of course that judicial review is both a flexible remedy and an evolving one but in my view it is right to examine the adequacy of judicial review for article 6 purposes in relation to a clamant , likely to be of modest resources, not by reference to what might theoretically be achievable in judicial review by pushing the boundaries somewhat, but by the mainstream of how it is applied in practice.

 

52. By contrast, an appeal to the First-tier Tribunal operates as a full rehearing on facts and law.  It remains a matter of some doubt whether the general principle that the First-tier Tribunal is restricted to the “circumstances obtaining” at the date of the decision under appeal (see Social Security Act 1998, section 12(8)(b)) applies to tax credit appeals.  If it does not, what can be argued on an appeal to the First-tier Tribunal in such a case is wider still, in that the tribunal could take account of post-decision developments.  Even if the principle does apply, the decisions in R(DLA)2/01 and R(DLA)3/01 establish that the tribunal is not limited to evidence that was before the officer making the decision under appeal or that was in existence at the date of that decision providing the evidence related to the period within the tribunal’s jurisdiction.  That goes significantly further than the approach allowed on judicial review, at any rate other than in the various categories of circumstances referred to above.

 

53. To those with experience of social security adjudication, it is a common occurrence that a claimant may submit additional evidence to the tribunal, perhaps further medical reports, or through his or her own description of their circumstances in writing or orally, that was not before the original decision taker.  The ability to do so is of considerable importance to those who for a variety of reasons may not have understood what was required of them at the time leading up to the original decision, or who had not been in a position to provide it.  Such indeed appears to have been the position in the present case.

 

54. By contrast, judicial review would in a case such as this would be likely  to look only at the evidence before the officer taking the decision, a decision taken moreover with the benefit only of non-statutory and ill-defined review procedures and thus with fewer alternative mechanisms in place to help secure that the appropriate evidence is before the decision-taking authority than may be found in, for instance, a  homelessness case.

 

55. There are of course other differences, such as the differing abilities of the court or tribunal to substitute a decision, but for present purposes it is the point above that in my view is critical as to why judicial review is not an adequate alternative and why the judicial review jurisdiction is not sufficient to “deal with the case as the nature of the decision requires”.

 

56. Mr Cornwell submits that such an approach would lead to an unsatisfactory result in that within the same regulation, disputes about some parts would have to go to  the tribunal while judicial review would be adequate for the parts based on the discretion of HMRC.

 

57. In SG v HMRC (TC) [2011] UKUT 199 (AAC), Judge Turnbull dealt with an argument that it might be unsatisfactory from a claimant's viewpoint if certain decisions were capable of challenge only by way of judicial review but that others could be determined on appeal.  It is important to understand that that was the context for his remarks when he observed that:

 

“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.” (Emphasis added).

 

It seems to me that, just as questions of convenience would not operate to create a right to an appeal on matters where Article 6 did not require one, then equally where Article 6 does require one, it is not to be defeated by questions of convenience, such as the patchwork of remedies which would arise in relation to the variety of issues under regulation 5 which may require to be decided upon.

 

58. I further note that in CTC/31/2006 Mr Commissioner Levenson (as he then was) was clearly prepared to contemplate that the answer might not be the same under all limbs of reg 5.

 

59. More generally, I consider that my decision on the impact of Article 6 is consistent with both those decisions.  In neither of them was the same paragraph of Reg 5 of the Claims and Notification Regulations in play.  In CTC/31/2006, the dispute concerned whether a claimant’s income tax return should have been accepted as a claim under reg 5(2)(b).  Judge Levenson accepted that as a matter of domestic law the right of appeal under section 38 against a decision under section 14 does not extend to a right of appeal against a determination under reg 5(2)(a) or (b).  As to the human rights aspect, he noted that:

 

“27. The acceptance of a “manner” of claiming is, on the face of it, an administrative act involving the exercise of discretion (even though it does not necessarily require “a measure of professional knowledge or experience”). If that discretion is exercised so unreasonably that no reasonable administrator could have exercised it in that way, judicial review is available and is an adequate remedy. As far as the merits of the way in which the exercise of discretion are concerned, there is no guidance in the legislation or regulations as to how the discretion is to be exercised. That seems to make it a non- justiciable determination in the sense of R(H) 3/04 and C(H) 4234/2004. On that basis the tribunal would in any event be limited to considering the equivalent of the grounds that are available for obtaining judicial review. Accordingly, judicial review is an adequate remedy and there is no basis for reading into Section 38 of the Tax Credits Act 2002 a right of appeal to the tribunal in respect of determination made under the provisions of regulation 5(2)(b).”

 

He was however at pains to limit the ambit of his decision, indicating that:

 

“29. I emphasise that my decision is limited to matters arising under regulation 5(2)(b). I do not necessarily take the same view in respect of issues relating to whether a claim has been made to a relevant authority or at an appropriate office or in writing or on an approved or authorised form. All these seem to be questions of fact rather than of administrative discretion, but they do not arise in the present case.”

 

60. In SG v HMRC (TC), the claimant had failed to return the annual declaration required by HMRC under s17 of the TCA.  Such a declaration may be made in writing on an approved form, orally, or in such other manner as the Board may accept as sufficient in the circumstances of any particular case”: see reg 34 of the Claims and Notification Regulations.  The Citizens Advice Bureau had subsequently written on the claimant’s behalf and, if that letter was itself, or if it contained, such a  declaration, then subject also to consideration of whether ”in the opinion of the Board the claimant had good cause” for not having made the declaration earlier, it was capable of constituting a claim.

 

61. The case was decided on the ground (at [70])  that the First-tier Tribunal did not err in law in exercising such jurisdiction as it had and  that the First-tier Tribunal “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.”  Judge Turnbull’s observations about what the position would be on pure matters of fact were accordingly obiter.  I do however note his view at [66] that to deprive the claimant of the possibility of appealing  to an independent tribunal even in relation a purely factual dispute as to whether a claim had been made ”would plainly be contrary to Article 6” in the light of the authorities.

 

Giving effect to Article 6

 

62. The Upper Tribunal has no power to make a declaration of incompatibility, thus the only way in which it is possible to give effect to the above views is if it is possible to interpret the legislation in a way which is compliant with Article 6.  The jurisdiction of the First-tier Tribunal is statutory and, moreover, is conferred by primary legislation – in this case the combined effect of sections 14 and 38 of the TCA.  It seems to me that if I can properly do so, section 3(1) of the Human Rights Act requires me to read one or other section in such a way as to confer an Article 6 complaint right in this class of case. 57. Though it is the human rights claim of these particular appellants with which I am concerned, it does seem likely that other cases raising the availability of the reg 5(8) shield might be in a similar position.  One can approach it through a reading of either section.

 

63. Dealing first with section 14, as noted above, section 14(1) 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.”

 

64. It seems to me that it is possible to read and give effect to section 14(1) (and that section 3(1) of the Human Rights Act requires me to do so) as if it said “On a claim for a tax credit or on what would constitute such a claim but for the Board’s view that the person or one of the persons making the claim could not avail themselves of regulation 5(8) of the Tax Credits (Claims and Notification) Regulations 2002 where that provision is in issue)…”  It seems to me that this is the minimum necessary to give effect to what I have found article 6 to require.  When read together with section 38, the proposed reading has the effect that the Board is compelled to take a decision in such a case which then becomes appealable.

 

65. There may of course be other circumstances where the question is likewise one of fact rather than discretion which may require a similar approach to be adopted, but they are not before me and I say no more about them.  While it would be possible to state the effect of section 3 of the Human Rights Act more concisely and less inelegantly, this could only be at the cost of trespassing into other circumstances.  It is for that reason that I am not attracted by Mr Williams’ argument that one can rely as an alternative on the feasibility of reading the phrase ”a decision under section 14(1)” as including a decision that there was no claim to determine under that section.  Such an approach would have the effect of conferring a right of appeal also in cases where the reason for rejection of the purported claim was within the Board’s discretion (and so properly challengeable only by judicial review).

 

66. The respondent has (without prejudice to the primary contention that no such process of interpretation is required) indicated that it would be preferable to apply it so section 38, by giving effect to s.38(1) as if it read:

 

“An appeal may be brought against-

 

(za) the refusal to accept that there has been a claim on the grounds of non- compliance with regulation 5(4) of Tax Credits (Claims and Notification) Regulations 2002 in circumstances where it is in issue whether regulation 5(4)  was disapplied  by regulation 5(8);

 

(a) a decision under section 14(1) etc…”

 

However, it seems to me that the former proposal, which has the effect that a decision must be taken on the point, then leading to the right of appeal is marginally the preferable to facilitate “the determination of his civil rights and obligations” for article 6 purposes, for a person who is unable to secure a decision refusing him may find it difficult to assert a right of appeal.  Mr Cornwell’s reasons for preferring a reading of section 38 to one of section 14 are that “even if there is to be a right of appeal it cannot be assumed that it will be successful (and often it will not be)”. Article 6 though is concerned with mechanisms, so I have difficulty in seeing how questions of the likely outcome can be relevant.  He also submits that “this [i.e. the section 14] proposal would seem to create potential repercussions elsewhere that are not required to make the TCA Article 6 –compliant.  Which repercussions are not identified and I am unable to discern them.

 

67. Consequently, if I am to undertake a process of interpretation in such a way, I prefer to do so in relation to section 14.

 

68. Would such an amendment be straying into (impermissible) legislating, rather than interpreting?  I bear in mind that while the Tax Credits Act 2002 represents the will of Parliament, so also does the Human Rights Act 1998.  And although the TCA creates a more circumscribed set of appeal rights than those to be found in some other legislative schemes, it did not do so when reg 5(8) was in contemplation.  That provision was introduced by the Tax Credits (Miscellaneous Amendments) Regulations 2009 SI 2009 No 697, in response to a change being made in 2009 by the Department for Work and Pensions: see Explanatory Memorandum to SI 2009/697, para 7.12.  Because the statement was subject to negative resolution procedure and does not amend primary legislation, no statement as to the European Convention on Human Rights was required (Explanatory Memorandum, para 6.)

 

69. It seems to me therefore that whether the Convention required a remedy to be given may have passed sub silentio.  Neither in the TCA nor anywhere else can I find an indication of Parliament’s wish to deny an ECHR-compliant remedy in this category of case, thus I do not consider that what I am proposing is to “[depart] substantially from a fundamental feature of an Act of Parliament” (see In re S (Care Order: Implementation of Care Plan) [2002] UKHL 10; [2002] 2 AC 291 at [40]).  I therefore view what I am proposing as a process of interpretation rather than of legislation.  It does not seem to me that such a dispute would be likely to have important practical repercussions which a tribunal is not equipped to evaluate and Mr Cornwell does not suggest that it does.  Moreover, experience shows that the fact that a dispute over whether a claim has been made is justiciable in other contexts has not proved to be the source of undue difficulty.  In the light of principles in cases such as Poplar HARCA v Donoghue [2002] QB 48; R v A (Complainant’s Sexual History)(No 2) [2002] AC 45; Re S(FC) [2002] 2 All ER 192 and Ghaidan v Godin-Mendoza [2004] UKHL 30, the above interpretation is one which it is open to me (and, by virtue of section 3, required of me) to undertake.

 

Discretion to set aside

 

70. Even where the Upper Tribunal considers there is an error of law, it has a discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 whether to set the tribunal’s decision aside.  Although Mr Cornwell has rightly pointed out that, following HMRC’s change of heart, the appellants do not themselves stand to gain from this appeal, they have chosen not to withdraw it, and that is their right.  While it is true that the appellants do not need me to set the tribunal’s decisions aside given the position which HMRC is now adopting, no more is there any reason not to do so.  Having decided upon what I believe the law to be and, since, if I were to proceed to set the tribunal’s decisions aside, it would be possible to re-make its decisions under section 12(2)(b)(ii), I conclude that it is preferable in the interests of clarity not to leave incorrect decisions standing  and so I set them aside and remake them in accordance with the view of the law I have taken.

 

 

 

 

C G Ward

Judge of the Upper Tribunal

5 November 2013