United Kingdom VAT & Duties Tribunals (Excise) Decisions

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URL: http://www.bailii.org/uk/cases/UKVAT/Excise/2009/E01172.html
Cite as: [2009] UKVAT(Excise) E01172, [2009] UKVAT(Excise) E1172

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Alan Knowles v Revenue & Customs [2009] UKVAT(Excise) E01172 (13 March 2009)

E01172

Restoration of vehicle - no appeal for restoration of goods - exceptional hardship claimed - health problems and incapacity of Appellant and wife - financial position - appeal dismissed

MANCHESTER TRIBUNAL CENTRE

ALAN KNOWLES Appellant

- and -

THE COMMISSIONERS FOR

HER MAJESTY'S REVENUE AND CUSTOMS Respondents

Tribunal: Elsie Gilliland (Chairman)

John Lapthorne (Member)

Sitting in public in Birmingham on 15 January 2009

REGAN PEGGS Solicitor for the Appellant

JAMES PUZEY, Counsel, instructed by the General Counsel and Solicitor to Her Majesty's Revenue and Customs for the Respondents

© CROWN COPYRIGHT 2009


 


DECISION

1. The appeal before the Tribunal is against a decision of Customs not to restore to Alan Knowles (the Appellant) his motor car a Ford Focus registration number EK05 XHJ (the vehicle) which was seized from him and forfeited on 5 March 2008. There is no appeal before us in respect of certain excise goods being carried in the vehicle and seized and forfeited at the same time. These comprised 20kgs of mixed brands of hand-rolling tobacco and 1960 cigarettes (the goods). It is claimed on behalf of the Appellant that there has been a misuse of their discretion by Customs in the decision which is set out in the review letter of 18 June 2008 and that the appeal should be allowed by the Tribunal on the grounds of exceptional hardship. Both the Appellant and his wife Vicki Denise Knowles (Mrs. Knowles) gave evidence on oath of their history of poor health and the continuing difficulties including financial ones caused to them through the loss of the vehicle.
2. It is not in dispute that the Appellant and Mrs. Knowles were stopped and questioned by Customs at Dover Eastern Docks on 5 March 2008 driving in the vehicle having travelled from France. They said that they had also been to Belgium and that they had gone abroad for the day to shop for cigarettes and tobacco. The Appellant agreed to stay for further interview. A copy of the manuscript interview notes is in the bundle of documents produced by Customs. They were agreed and signed by the Appellant. Mrs. Knowles was interviewed by another officer and she also agreed and signed the record in that officer's notebook.
3. In his evidence to the Tribunal about the trip the Appellant said that he had been saving and that he had health problems and had concluded that it would be more cost effective to purchase the quantity of tobacco goods that he had done and that this would last some 2 years. He had financed the trip from savings and betting wins. He was then smoking some 20-30 cigarettes daily but because of a cancer scare he was no longer a smoker. He had stopped in May last year having smoked for over 40 years. In her evidence later Mrs. Knowles confirmed that she had given up smoking at the same time as her husband. She gave as the reason for the purchase of 20kgs of hand rolling tobacco "to stock up". The Appellant said that he smoked "rollers" which he made up in a machine but if out socially he smoked ready made cigarettes as did his wife. The reason for the purchase of the different brands was to mix and add moisture to a dry brand. The journey on the day trip had taken 4 or 5 hours each way. The Appellant was questioned as to the frequency of their trips abroad and told the Tribunal that the trip on which they had been stopped had been his 5th trip in 13 months. Of these 3 had been day trips that is in February 2007, in August or October 2007 and then that of 5 March 2008. They had had a holiday in Spain with his son and family in June 2007 and 5 weeks in Spain at Christmas. They had thought at one time of moving to Spain. They had not made any foreign trips since a cheap holiday in Spain in March 2008.
4. On their financial position the Appellant stated that both he and his wife received incapacity benefit and he had a work pension which was paid into the building society. (Both were aged in their mid- fifties). He had a bill account for direct debts of £130 per month. Mrs. Knowles said that their current savings were a few hundred pounds in a safe at home and a £24000 reserve account though she did not know how much of it had been used - £9500 had been used she knew for the purchase of the vehicle and there had also been work on a driveway. The concern of each was health problems; each presented the argument that their position was exacerbated by the seizure of the vehicle with the subsequent need to purchase another car because of their medical problems and this in turn created financial difficulties.
5. The Appellant said that for 4 years in April he had been suffering from an aggressive form of rheumatoid arthritis. He used self-injection and the drug methotrexate. He was registered disabled and mobility disabled and had a blue badge. He had retired from work most of which had been outside 3 years ago. As he could not walk far and used a stick, he got about by driving. A further problem was that he had suffered a double fracture of his leg in July 2008. This had necessitated a 1 week stay in hospital. He produced a hand-written list which he had prepared which he said gave details of the number of medical appointments he and his wife had had to make during the period from 13 March 2008 to 7 January 2009 that is subsequent to the seizure of the vehicle. Counting these the total is 68 and the attendances to be made range from hospital attendances to physiotherapy to the dentists. In her evidence Mrs. Knowles explained that her health was not very good as she had asthma, osteo-arthritis, high blood pressure and glaucoma. She had particular problems in cold weather. She could cope if she went from a carpark to a warm shop. She could not do her journeys by taxi or bus even with a blue badge.
6. In October 2008 the Appellant acquired another motor car. He said that he could not face the winter without one. He told us that this had cost £1600 and he had borrowed £1000 of the amount from his wife's sister whom he would repay. Mrs. Knowles told the Tribunal that her sister would be repaid on the outcome of the hearing as if she and her husband were successful that car would be sold. The Appellant said that he was saving now having stopped smoking. He was still paying off the borrowing on the vehicle which he had bought in November 2007 paying then £9500 of which £8000 was still owed. This debt was secured on the house and funding for this and certain other domestic items had been available as they had a low mortgage and could benefit from a reserve account. The Appellant did the driving though his wife was learning to drive as he was not always up to it. In response to questions from the Tribunal he said that at the moment there was no medical advice that he should not drive. He explained also in connection with mobility there were some garages which would supply a mobility car and take the mobility benefit received though this depended on the car.
7. Mr. Puzey for Customs submitted that in the circumstances of the matter before us the decision taken by the review officer was not out of time and the original decision not thus one "deemed" to have been upheld. The case had been proceeded with in a proper time scale when the legal authority of the Appellant was duly obtained and submitted by his agents. This was accepted by Mr. Peggs without objection. The goods were seized as liable to forfeiture and thus the vehicle used for their carriage was also liable to forfeiture. See s141 of CEMA.
8. Under s14 and s15 of and Schedule 5 of the Finance Act 1994 the review officer has power to confirm withdraw or vary the original decision and under s 152 of the Customs and Excise Management Act 1979 (CEMA) Customs have a wide discretion "as they think fit" to restore any thing seized or forfeited. The Finance Act 1994 provides a mechanism for the exercise of discretions to be subject to judicial control. There is provision for appeal to the Tribunal against the decision of a review officer but such an appeal is against an "ancillary" matter and the Tribunal's jurisdiction is not appellate and thus is limited to considering whether the decision of the review officer was one which could not reasonably have been arrived at. See s.16 (4). This will include considering if the decision was contrary to European law including proportionality and human rights. As to the remedies available to us these are confined under s16 (4) (a) (b) and (c) to action such as quashing the review decision and requiring Customs to conduct a further review in accordance with any directions of the Tribunal. We must look at the reasonableness of the decision to be satisfied that the officer acted on Wednesbury principles and thus took into account all matters he was bound to consider excluded from his consideration irrelevant ones and acted on a correct understanding of the law.
9. The policy of Customs was set out in detail in the review letter. Private vehicles used in the improper importation of excise goods would not normally be restored though there was a discretion. The review officer having considered the factors in the Appellant's case took the view that the Appellant did not qualify and that his case was not one of exceptional hardship. The Appellant's ground for pressing for a restoration of the vehicle was the great hardship caused to his wife and him by the forfeiture. Both the Appellant and Mrs. Knowles gave evidence to us of the extent of their incapacity and the practical difficulties created and from this sought to establish their need for the vehicle to be restored to them. However the medical evidence has been limited. In addition to their oral testimony at the hearing there was in the bundle produced by Customs a copy letter from the general practitioner of both the Appellant and Mrs. Knowles namely Dr. Christopher Leigh of Wychall Lane Surgery at King's Norton dated 18 April 2008 in which it is stated that their notes recorded that " both Mr and Mrs. Knowles are cigarette smokers; this information being recorded on both their medical records in 2008". This letter had been the only independent medical evidence seen by the officer. At the hearing the Appellant produced the appointments list and in addition a copy letter addressed to Dr. Leigh at the practice by Dr. Simon Bowman a Consultant Rheumatologist with University Hospital Birmingham Selly Oak. This had a printed date of 19 May 2008 and a diagnosis heading of rheumatoid arthritis. There had been a clinic appointment with the Appellant on 29 April 2008 and the letter reviewed medication and the current state of his illness. There was to be a follow-up in 4 months time.
10. It has to be noted that no medical correspondence has been produced in respect of the cancer scare which the Appellant said he had mentioned to Customs. In his evidence the Appellant said that the scare had been in March having started at the beginning of the year and he had had a biopsy in April. It has to be observed that with this background the Appellant nevertheless chose to purchase substantial amounts of hand rolling tobacco and a quantity of cigarettes the amount on his own admission being more than he had ever purchased before.
11. In connection with the hardship claim we look also at the evidence given of the Appellant's financial position and his response to questioning as to alternative transport arrangements. The couple live at King's Norton, which they described as being on the outskirts of the city (of Birmingham). The Appellant found the public transport inconvenient to use - it appeared from what he said that there was no direct service to the hospital he attended for his arthritis - and as to the Ambuline service he had not investigated or used this as his sons arranged to take him to hospital. The car purchased in October was an old car and his needs and those of his wife were for the better more comfortable car which had been seized. As to their finances there was the cost to be met of paying the borrowing on two cars on their benefits and savings. It was stated by Mr. Peggs in a letter of 25 April 2008 that "What Car" valued vehicles such as the vehicle of the Appellant at approximately £6000. The information from Customs was that the Appellant had paid £1715 for the goods and the duty lost was £2590.60. The case whilst a first offence was not said to be a "not for profit" one nor could the quantities involved be said to be small. Exceptional hardship has always to be given due consideration. See Lord Phillips in Lindsay v The Commissioners.
12. We are satisfied that the review officer did properly take into account the issue of hardship. We do not consider that the seizure of the vehicle was disproportionate on the figures quoted. This is not a third party car owner and the policy of restoration for a fee is not applicable. It is probable that there will some measure of difficulty, inconvenience and expense in the circumstances described by the Appellant in maintaining their quality of life but there are alternative arrangements which they can and have already been able to make. Nor do we consider that there has been any infringement of the human rights of the Appellant or his wife in respect of their loss of property. Accordingly we are satisfied that the review officer complied with Wednesbury principles and his decision was reasonably arrived at. He has specifically referred in the review letter to the medical evidence of which he was made aware and took it into account along with the financial implications to the Appellant. He showed also an appropriate understanding of the relevant law.
13. The appeal is dismissed.
14. Customs have not sought costs and we make no direction as to costs.

MAN 08/8083

ELSIE GILLILAND

CHAIRMAN
Release Date: 13 March 2009