[2024] UKUT 342 (AAC)

At paragraph 44 of its decision the FTT states “Whilst having every sympathy for Mr O’s difficulty, with the apparent error in his tax records. The Tribunal concludes that it is required to use the provided HMRC figure, subject to the allowance for relievable pension contributions only.”

As the first respondent has highlighted in its submission, there was material before the FTT indicating that a different HMRC figure might have been provided, had it been requested. The FTT itself appeared to suggest in its written reasons at paragraph 44 referred to above, some doubt attached to the reliability of the HMRC figure which had been provided. In this case, the FTT adjourned the hearing and required the Secretary of State to obtain Real Time Information (“RTI”) from HMRC for the period of 1 April 2020 to 8 February 2022 [FTT/48]. The RTI provided by HMRC indicated that the Appellant’s taxable income in the 2020-21 tax year was in fact £77,947.24 [FTT/58-59]. However, RTI from HMRC is not an HMRC figure within the meaning of reg.36(1) of the 2012 Regulations: AR v Secretary of State for Work and Pensions [2019] UKUT 151 (AAC) per UTJ Wikeley at §45.

The SSWP in her submission argues the FTT, insofar as it found that it was bound by the HMRC figure of £89,985.24, was in error of law. As there was a serious possibility that a new HMRC figure would be different to that figure, the FTT should have adjourned the hearing and required the Secretary of State to request a new HMRC figure, rather than RTI: BK v Secretary of State for Work and Pensions [2022] UKUT 283 (AAC) per Deputy UTJ Rowland at §12. I agree. In my respectful view the FTT failed in its inquisitorial duty to fully investigate, consider and make findings of fact on this issue, particularly in circumstances where it had reservations regarding the reliability of the HMRC figure provided which it explicitly referred to in its written reasons. If necessary, it should have considered adjourning the case to obtain this information. On this basis the FTT was in error of law.

For the sake of completeness I also note the observations of UTJ Mitchell at paragraph 38 of SB v (1) Secretary of State for Work and Pensions, (2) TB (CSM) [2016] UKUT 0084 (AAC) where he states “it would be absurd if [he] had to rely on income data that was clearly wrong, artificially inflating or deflating a parent’s child support maintenance liability. I see nothing in the 2012 Regulations to prevent subsequent requests for a HMRC figure from being made if there is a reasonable doubt as to the accuracy of the information initially supplied.”

I note, equally, the FTT are not obliged to accept figures provided by the appellant. As Judge Rowland stated in BK v Secretary of State for Work and Pensions (CSM) [2022] UKUT 283 (AAC) at paragraph 12;