Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 14 February 2014 at Cardiff under reference SC188/13/09108) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is: the decisions under appeal as presented to the First-tier Tribunal had so little coherence or connection to legal powers as not to amount to decisions. Whatever decisions were made or were intended to be made are set aside and the case referred back to Commissioners for Her Majesty's Revenue and Customs to redecide in accordance with their submission on this appeal.

Reasons for Decision

1.         This is one of a number of cases that have come before the Upper Tribunal in which the presentation of the case to the First-tier Tribunal has been inadequate.

A.        The appeal to the First-tier Tribunal

2.         The claimant lodged an appeal with the First-tier Tribunal. The Commissioners provided a response, which began with a summary:

[The claimant] is appealing against two decisions: the first is the decision not to backdate her tax credit for her child … Secondly, [the claimant] is appealing against the decision not to backdate their tax credit claim further than 31 days prior to the receipt of their claim.

The section for the decision under appeal was completed as follows:

The decision under appeal

HMRC awarded … £2,622.63 CTC for the period 6 April 2011 to 5 April 2012.

The amended decision

HMRC awarded … £5,560.68 CTC for the period 15 November 2011 to 5 April 2012.

3.         The judge was far from complimentary about the response provided. He wrote:

4. The decision making process as summarised in the response is far from clear and the law on the basis it has been made is not set out. It appears that the decision was on the basis that she notified HM Revenue and Customs on 15/2/12 and was backdated for 3 months.

5. The facts set out in page B of the response are not easy to follow. [The judge then particularises the problems he found.]

8. The Tribunal was not clear whether a revised decision had been made or the law relied on in view of regulation 25. If a revised decision had been made, it still did not dispose of her claim that it should be backdated to 1/3/11.

There was no presenting officer for the Commissioners to assist at the hearing of the appeal.

B.        The appeal to the Upper Tribunal

4.         In giving the claimant permission to appeal to the Upper Tribunal, I wrote:

I would normally have treated the issues raised by the claimant as ones of fact and decided that the tribunal was entitled to make the findings it did on the evidence before it. However, given the judge’s comments on the deficiencies in the evidence as a whole and the failure to identify the legal basis for decision-making, I consider that that approach is unrealistic. The Commissioners for Her Majesty's Revenue and Customs were under a duty to disclose all relevant material for the assistance of the claimant and for the benefit of the tribunal. It is at least arguable that they failed in that approach.

I would be grateful if the Commissioners’ representative on this appeal will ensure that all relevant evidence held by them is adduced and that the legal basis for decision-making is properly identified.

5.         The response from the representative of the Commissioners supported the appeal. Elisa Collins wrote:

2. This case is concerned with two issues. The backdating of the child disability element and the backdating of the claimant’s single claim to tax credits.

3. HMRC submitted a response to the F-tT that was manifestly incomplete.

4. Essentially there were two different decisions, made at two different times yet HMRC only prepared one Response and failed to document correctly the date these decisions were notified. Nor did they correctly document the legal framework behind the decision making process.

After setting out the legal structure of decisions in tax credit cases and the history of the decision-making in the claimant’s case, Ms Collins quoted R(IB) 2/04, in which the Tribunal of Commissioners said:

72. … there may be some decisions made by the Secretary of State which have so little coherence or connection to legal powers that they do not amount to decisions under section 10 [of the Social Security Act 1998] at all.

She continued:

39. I submit that that remark applies to HMRC and the accompanying tax credit legislation.

40. In this case it is not all clear which decisions were under appeal or even if, by the time the appeal was heard, these decisions were still in point.

She concluded by submitting that the First-tier Tribunal’s decision should be set aside and the case remitted to the Commissioners for reconsideration.

6.         The claimant has not commented in reply. What could she say to such an admission?

7.         I am grateful to Ms Collins for her full and frank response. I accept her submission and give a decision to that effect. The claimant’s entitlement will now be considered afresh and the claimant will be able to appeal to the First-tier Tribunal against any outcome decision that is given. I am sure that that is not the result she wanted from this appeal, but realistically it is the most sensible way forward.

C.        What the judge should have done

8.         Finally, I want to say a word to the judge who heard this appeal in the First-tier Tribunal and to other judges who are placed in the same position. The error of law that I have identified is not in any way the fault of the judge. He did his best, faced with a submission that did not identify the law that had to be applied and a statement of facts that shed more confusion than light. The proper course for him to have taken was not to struggle on to make the best sense he could of what was presented to him, it was to remit the case back to the Commissioners with directions on how to remedy the deficiencies in their submission. The purpose of the submission is to inform the claimant of what the case is about legally and to assist the tribunal in making a decision. This submission did neither.