[2025] UKUT 00367 (TCC)

The first ground of appeal is not arguable. The FTT did not arguably err in law by misinterpreting paragraph 8(1) of the Schedule to the First Direction and the meaning of the phrase “reasonably expected to be paid”. There is nothing within the CJRS Treasury Directions that requires paragraphs 5, on entitlement, and paragraph 8, on the amount of payment to be paid, to be elided. The provisions are logically discrete and rationally sustainable.

The FTT did not arguably err at [34]-[36] of the Decision in finding that whatever the Applicant’s reasonable expectation of payment to be received, he did not satisfy the gateway condition in paragraph 5:

“34.

Mr Mahmood submitted that the words “reasonably expected to be paid” allowed CMC to make a claim for the amount of money which he reasonably expected to be paid on a monthly basis, given his previous employment by Ocean Network.

35.

We disagree. As Mr McCabe said, it is paragraph 5 which sets out “The costs of employment in respect of which an employer may make a claim for payment”, in other words, this is the paragraph which prescribes gateway conditions for a CJRS claim to be made.

36.

The purpose of paragraph 8 is to set out the money to be reimbursed to employers who have already met the gateway conditions in the Direction. This can be seen from the following (our emphasis):

(1)

Paragraph 5 begins “The costs of employment in respect of which an employer may make a claim for payment under CJRS” are those defined in that section. The conditions in that paragraph therefore have to be met for a valid claim to be made.

(2)

Paragraph 8 begins “…on a claim by an employer for a payment under CJRS, the payment may reimburse”. This paragraph therefore set out the amount which can be claimed once the conditions in paragraph 5 have been met.”

It is noteworthy that in his submissions to the UT Mr Mahmood focussed on his reasonable expectation of the Applicant receiving payment of invoices from BT Group Plc (due to an ongoing legal dispute). This was in contrast to the expectation of relying on £40,000 from his previously employment with Ocean Network which the FTT recorded at [4] and [34]. He accepted that the evidence he put forward to the UT regarding the dispute with BT had not been placed before the FTT so was new evidence on appeal. However, he submitted that he had always relied on the BT dispute as the basis of the Applicant’s reasonable expectation of payment in his discussions with HMRC prior to his appeal to the FTT and this basis was mentioned during the FTT hearing. However, he also did accept that the FTT had correctly recorded that he had also relied on the reasonable expectation of payment from his previous employment. Regardless of whether there has been any change of approach by the Applicant between the FTT and UT, the basis of the expectation is all immaterial to the question of whether the FTT arguably erred in construing paragraph 8(1). I am satisfied that it did not because the provision regarding expectation of payment in paragraph 8 only relates to the amount of the payment to be reimbursed and not the eligibility to the payment.