[2024] UKUT 00281 (IAC)

On the one hand, I accept Mr Skinner’s submission that the Applicant did not address the concerns of the timing of payments from the client to his business, namely that it was running short of funds and that it was permissible to consider the similarity of names between those two companies. On the other hand, I have accepted that the Respondent erred in failing to consider its discretion in relation to the factors set out in Paragraph 245DD(l). This may or may not prompt further questions, depending on whether the material before the Respondent is sufficient in light of the exercise of that discretion. Moreover, the Respondent’s stated concern about the website, based on a misrecording of the address, was perverse and the process by which the Respondent reached its conclusions was procedurally unfair.

I accept Mr Skinner’s submissions on how Section 31(2A) of the 1981 Act operates. Making my own objective assessment of the decision-making process, I caution myself not to take the role of the decision-maker. Consideration of the exercise of discretion relating to the factors set out in Paragraph 245DD(l) is highly fact sensitive. Whether the Respondent considers, for example, that the genuineness of the jobs which had been created, is relevant, is a matter for it, in the context of the wider evidence and any outstanding concerns about the timing of payments from Level Three Trading FZE to Level Three. However, I do not accept that the Respondent has proven that, had it considered whether to exercise its discretion to consider the factors under Paragraph 245DD(l), it is highly likely that the outcome would not have been substantially different. This because the Respondent’s failure to consider the exercise of discretion is fundamental and would otherwise require this Tribunal to trespass into taking the role of the decision-maker, in such fact-sensitive circumstances.