[2025] UKUT 00367 (TCC)

The second and third grounds of appeal are not arguable. There is no arguable error of law by the FTT in its construction of the Schedule to the First Direction. A purposive reading of paragraph 8 does not require disapplying paragraph 5. The requirements of each paragraph are logically distinct and for good reason – to separate eligibility and the amount of any payment. I do not disagree with any of the Applicant’s arguments that the CJRS Treasury Directions must be interpreted as a unified and purposive scheme in light of the scheme’s overarching objective—to support the retention of employment during the periods of economic disruption caused by the pandemic. I do not disagree that paragraph 8(1) is integral to the scheme’s purpose, which includes the reimbursement of employers for employment costs that are either actually incurred or reasonably expected to be incurred as a result of furlough.

However, paragraph 5 determines eligibility to the payment and requires, that an employer may only be reimbursed in respect of any actual or reasonably expected payments if payments of earning have been made by the employer in respect of employees for the relevant year and declared in a return. Specifically, the purpose of the Schedule to the First Direction includes a requirement that the costs of employment in respect of which an employer may make a claim for payment under CJRS are costs which relate to an employee to whom the employer has made a payment of earnings in the tax year 2019-20 which is shown in a RTI return. A purposive reading of these provisions does not require the disapplication of the eligibility requirement in paragraph 5(a)(i) in order to give proper effect to the legislative intent underpinning the CJRS.

The two FTT decisions on which the Applicant relies do not lend any support for the proposition that paragraph 5(a)(i) should be disapplied. They only concern the interpretation of a what a reasonable expectation of payment for the purposes of paragraph 8 may be on the facts of a given case. Paragraph 5 is plain in its meaning and does not permit of the suggested ‘purposive’ but contrary interpretation by virtue of Regulation 8.