[2024] UKUT 342 (AAC)

I find that the First-tier Tribunal erred in law as set out above. The First-tier Tribunal’s decision is set aside.

The Secretary of State has suggested the Upper Tribunal remit this case to the First-tier Tribunal for re-hearing and, given further findings of fact are required, it is appropriate to remit the case back to the FTT. As a matter of law, the next tribunal cannot, in its reasoning, take into account the findings of fact or conclusions of the tribunal whose decision I have set aside. The undetermined grounds of appeal are just that – undetermined.

Although I am setting aside the previous Tribunal’s decision, I am making no finding, nor indeed expressing any view on this case. That is a matter for the judgment of the new Tribunal. That new Tribunal must review all the relevant evidence and make its own findings of fact.

The appeal against the Secretary of State’s decision of 8th February 2022 is remitted to the First-tier Tribunal for re-determination.

The FTT is directed to require the Secretary of State to request a further HMRC figure in relation to the relevant tax year.

The composition of the Tribunal panel that re-determines the appeal must not include any member of the panel whose decision I have set aside.

If the claimant wishes the First-tier Tribunal to hold an oral hearing before his remitted appeal is determined he must make a written request to the First-tier Tribunal to be received by that Tribunal within one month of the date on which this decision is issued.

If the claimant wishes to rely on any further written evidence or argument, it is to be supplied to the First-tier Tribunal so that it is received by that Tribunal within one month of the date on which this decision is issued.

Apart from directions 1 and 2, these directions are subject to any case management directions given by the First-tier Tribunal.

The parties are reminded that the law prevents the First-tier Tribunal from taking into account circumstances not applying at the date of decision (section 12(8) of the Social Security Act 1998). This does not prevent the tribunal from taking into account evidence that came into existence after that date if it says something relevant about the circumstances at the date of decision.