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Comity
Comity
The claimant accepted that, if RS (No.2) is followed, then Appeal 2 must fail. HMRC’s position is that the decision must be followed not only because it is right, but also as a matter of comity.
As was explained in Dorset Healthcare NHS Trust v MH [2009] UKUT 4 at [37], as relied upon in the aforementioned DB:
“A single judge in the interests of comity and to avoid confusion on questions of legal principle normally follows the decisions of other single judges. It is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so”.
The Upper Tribunal in RS (No.2) considered the same arguments which are under consideration in Appeal 2 and therefore, in the interests of comity, it should follow that decision.
- Heading
- Section 1
- w as HMRC v RS (No.2) (TC) [2022] UKUT 246 correctly decided in its interpretation of Article 7(6) of the Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order
- SC946/21/00244 (on appeal UA-2023-001612-TC ) dated 9 December 2020 that he had made a valid declaration of eligibility for tax-free childcare and so his entitlement to tax credits was correctly termi
- SC946/19/02420 (on appeal UA-2023-001611-TC ) dated 9 August 2019 that he was not able to make a new claim for tax credits for any period after 19 March 2019
- The Tribunal’s Statement of Reasons
- The Statutory Framework
- The Claimant’s Submissions
- entitlement period and therefore terminated his tax credits award immediately prior to that date following that termination, HMRC issued various decision notices and other notices, which were subject to a previous appeal. The Upper Tribunal in UA-202
- the 2018/2019 tax year. The decision notice was issued to the claimant on 11 December 2020
- Ground 2: The alleged “declaration of eligibility” was not “valid”
- he was in fact an eligible person, because tax credits were not payable in respect of the relevant period
- Issues raised by HMRC
- Ground 3: S.30 of the 2014 Act no longer applies
- UA-2023-001611-TC
- in relation to Appeal SC946/21/00244 (“Appeal 1”): on 14 March 2019, the
- in relation to Appeal SC946/19/02420 (“Appeal 2”): he was not permitted to apply for tax credits in August 2019
- Factual Background
- The TFC Scheme
- Appeal 1
- The Legal Framework
- by s.5(1) the length of the “entitlement period” is 3 months, subject to any regulations altering that length
- the day on which the declaration was made was 14 March 2019. This was the claimant’s first application
- the “relevant day” was 20 March 2019
- The declaration question
- https://webarchive.nationalarchives.gov.uk/ukgwa/20190317223446/https:/www.gov.uk/tax-free-childcare which contained the portal which the claimant would have used to make his application
- ( https://webarchive.nationalarchives.gov.uk/ukgwa/20190321044737/https:/www.gov.uk/apply-30-hours-free-childcare )
- The validity question
- in this regard, the position is similar to that in HMRC v Secretary of State for Work and Pensions and GS [2023] UKUT 9 (AAC) where the Upper Tribunal considered a regulation containing a requirement
- The “other relevant childcare support” question
- HMRC’s non-ministerial position is also clear from the Explanatory Notes to the 2005 Act
- if he is right, a recipient of the childcare element of WTC would necessarily
- The ceasing to have effect argument
- comity: should the Upper Tribunal follow RS (No.2) in the interests of comity?
- The Legal Framework
- RS (No.2)
- Comity
- The “for the next tax year” argument
- Discussion
- The validity question
- The “other relevant childcare support” argument
- The ceasing to have effect argument
- Appeal 2
- Conclusions