[2025] UKUT 00278 (TCC)

As noted above, the NICs uplift issue arose in relation to Fluid London for the year 2009/10, for which it was common ground that HMRC had issued a s. 8 decision and county court proceedings. It was also common ground that HMRC could in principle have amended its s. 8 decision under Regulations 5 and 6 of the Social Security Contributions (Decisions and Appeals) Regulations 1999. The only question was therefore whether HMRC’s ability to apply to the county court to amend the amount specified in its original county court claim, to reflect a new s. 8 decision, gave it a “power to recover” for the purposes of DRRS §3.1.27.3 read together with §4.5.2.

As Mr Stone explained, following the expiry of the relevant limitation period for bringing a new claim, CPR r. 17.4(2) permits the court to allow an amendment whose effect is to add or substitute a new claim, if the new claim arises out of the same facts or substantially the same facts as are already in issue on the existing claim. He accepted that this would have required an application by HMRC to amend, and a decision by the county court permitting that amendment. He contended that this did not prevent HMRC from having a “power to recover” the varied amount of tax.

We agree. The same reasoning applies as in the case of the power to recover income tax: HMRC’s ability to make an application to amend its county court claim meant that it was in principle able to take steps that put it in a position to recover the relevant amount. The fact that such an application would then have fallen to be determined by the court does not undermine that conclusion. As in relation to tax, DRRS §3.1.27.3 requires the existence of a power, not that all steps pursuant to the exercise of that power have been completed.

We do not accept Mr Elliott’s submission that CPR r. 17.4(2) would have been inapplicable because a replacement decision issued under Regulations 5 and 6 would have been a new decision. The relevant question is whether the new claim arises out of the same or substantially the same facts as already in issue on the existing claim. We address this on the facts of the NICs claim for London Fluid below.