UT/2021/000192 - [2024] UKUT 00242 (TCC)

HMRC submit that given their commitment to make a new decision by 23 August 2024, the claim has become academic and there is no purpose in continuing the judicial review. They argue the mandatory order the Claimant seeks of requiring HMRC to exercise the 7A discretion in UBS’s favour is not something the tribunal has jurisdiction to order (whilst the tribunal could order HMRC to make a decision, it could not compel a specified outcome - the sole authority for making the decision lies with the statutory decision-maker, the HMRC officer). In any case, HMRC say that even if the claim is not academic, public law remedies in a judicial review are a matter of discretion rather than entitlement. The question of whether to grant a remedy usually follows from findings of unlawfulness of the impugned decision, but where the facts have changed in that there is no decision whose lawfulness falls to be determined, it is inappropriate for a remedy to be granted.

UBS disagrees that the claim has become academic in that UBS’s challenge was not simply that HMRC had failed to consider the discretion but was a challenge to HMRC’s refusal to exercise the 7A discretion in UBS’s favour. UBS has not obtained the relief it seeks since HMRC have still not exercised the 7A discretion so as to relieve UBS from its PAYE obligations. UBS argues that given HMRC seek to withdraw their defence, the central plank of which was that it was premature for HMRC to exercise their discretion, that must mean HMRC have conceded that point. The appropriate relief is that sought by UBS in its claim form. In respect of declaratory relief, HMRC have not advanced any defence. As regards the mandatory order, thefact that it is an officer of HMRC that has been given the statutory discretion is no bar to a mandatory order. It follows that if the 7A discretion is exercised pursuant to the mandatory order sought then UBS would be relieved of PAYE liability and that the Regulation 80 determination should be quashed.