TC09644 ****** - [2025] UKFTT 01121 (TC)

We make the following findings with regard to PO’s capacity.

The appellant has a long history of mental-health difficulties. We have had the benefit of the reports outlined at [25(4)] above, in addition to the witness testimony of CD.

We consider it unfortunate that full GP records were not provided to the Tribunal that would have allowed a more granular assessment of his health: see HA (expert evidence, mental health) [2022] UKUT 111 (IAC).

It is clear beyond doubt to us that if the relevant date, as Mr McNamee submits, is 1 April 2018 the appellant must succeed, as the general trajectory of his mental state was downwards and he was held as not fit to plead in March 2017.

If the relevant date is, as HMRC assert and we find, in 2013/14 the situation is less free from doubt. However, looking at the evidence in the round we find, on the balance of probabilities, that PO was not involved in the management of the farm then as he lacked capacity and he also lacked capacity to (i) make the disposal of the waste, or (ii) knowingly cause or knowingly permit the disposal to be made.

We find that the present decline in the appellant’s mental state was brought about by his wife’s death in 2008. We consider it likely that by 2013/14 his mental health had declined to such a degree that he lacked capacity to (i) make the disposal of the waste, or (ii) knowingly cause or knowingly permit the disposal to be made. We expand on this below by reference to the evidence.

We note that the medical evidence was not prepared for this hearing, but for the criminal trial. Therefore the focus of the evidence is PO’s mental state when the trial was due to take place (2017). This is in some ways less helpful for our purposes – as it is less informative of his mental state in 2013/14. However, to the extent that it is informative of his mental health in 2013/14 we regard it as particularly reliable as the likelihood of feigning (reported) symptoms is low, as the tax investigation was not in contemplation and so there would have been no incentive to mis-report his mental state in 2013/14.