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Section 1
This Appeal concerns a decision made by the First-tier Tribunal (‘FTT’) on 5 January 2023 about tax credits relating to two tax years, the 2017–2018 tax year, and the 2018–2019 tax year. The appellant had appealed to the First-tier Tribunal in relation to two decisions made by SSWP pursuant to section 18 of the Tax Credits Act 2002:
The first decision was made on 23 August 2018 and related to entitlement to tax credits for the tax year 2017–2018.
The second decision was made on 19 August 2020, and related to entitlement tax credits for the tax year 2018–2019.
The appellant had initially received a single award of tax credits for the 2017-2018 tax year. On 23 August 2018 HMRC determined that she should not be in receipt of a single tax credits award because she was living together with a man called IT who she had married in 2011. The appellant’s position at the FTT was that the relationship had ended around 2015 but IT had stayed living at the same address intermittently and used the former marital home as his address for financial products. Her position at FTT was that she should have been entitled to a single award of tax credits for 2017-2018 and also 2018-2019.
There is a requirement under section 21 Tax Credits Act 2002 for any prospective appellant to apply in writing for mandatory reconsideration by HMRC about a tax credit decision before any appeal can be made. There is a time limit of 30 days of the date of notification, although HMRC has a discretion under section 21B to extend the time limit if certain conditions are met, including that the application for extension is made within 13 months of the date of notification.
The FTT conducted the case via a telephone link and heard evidence from the appellant. The FTT found that the appellant had not requested mandatory reconsideration of the first decision within the required time scale and therefore that it did not have jurisdiction to hear an appeal against that decision. The FTT rejected the appeal in relation to the second decision on the simple basis that the appellant had made a joint claim to tax credits for the 2018-2019 year, which is what she received.
The appellant appealed to the Upper Tribunal. In appeal correspondence she said that HMRC had sent a 579 page bundle on the day before the hearing and that she had informed the judge of that. She says she was prejudiced as a result of not having sufficient time to examine the new material. It is difficult to identify the 579 page bundle as the index I have is not clear, but it appears to include material which is now paginated from p204 (top right) in the FTT papers, which is marked ‘submission’ in the index, with no date. Those papers include a detailed chronology, screenprints from HMRC’s database, logs of telephone calls and the like. To put that new bundle in context, it is of note that the original appeal bundle was 193 pages.
Upper Tribunal Judge Scolding KC gave permission to appeal on 22 March 2024, following an oral hearing, on four grounds which were in paraphrase:
Grounds 1 & 2: that it was arguably unfair not to give the appellant the opportunity to read the 579 page bundle submitted by HMRC shortly before the hearing and arguably because of the lateness of that documentation the appellant did not raise arguments which she could have raised;
Ground 3: that the FTT’s conclusion that the appellant was not single at the time of the 2017–18 submission because of what was said about the 2018–19 claim arguably did not take into account relevant matters, particularly the nature of the relationship between the appellant and IT, and arguably did not follow case law which identifies that sharing a roof is not the same as being in a relationship;
Ground 4: that arguably some of the notes on the system from October and November 2018 do show some form of mandatory consideration.
Judge Scolding KC set out directions including a requirement for HMRC to respond to the appeal, and to respond to directions about evidence. HMRC made brief submissions dated 7 June 2024. In the submissions, HMRC asserts that the appellant did not ask for mandatory reconsideration of the first decision under appeal. In response to directions, the submissions say:
‘HMRC confirms that the bundle of correspondence filed with the FTT is the exhaustive bundle of interaction with the appellant. I have attached a copy of telephone records between the appellant and the Tax Credit Office during the period from 24 August 2018 to 30 September 2019 as these are not all covered in the bundle. It is observed that all of these telephone call records are in relation to a joint claim that the appellant submitted with IT on 10 October 2018’.
Those sentences do not sit well together. I do not follow how HMRC can assert that it has previously provided all evidence of interaction with the appellant, and at the same time produce new material. The HMRC submission does not address in any way the other grounds of appeal.
The appellant has made further submissions dated 18 July 2024, drawing my attention to some parts of the evidence. The appellant says she has recordings of conversations with HMRC officers confirming that a HMRC note made on 12 November 2018 relates to the single claim. That note was part of the 579 page bundle. The appellant says that HMRC was confused in 2018 and treated an application for mandatory reconsideration of one claim as an application for reconsideration of a different claim.
Neither party asks for a further oral hearing at this stage, and an oral hearing is not in the interest of justice.