R (Wilkinson) v Commissioners of Inland Revenue

JurisdictionEngland & Wales
JudgeLord Phillips
Judgment Date18 June 2003
Neutral Citation[2003] EWCA Civ 814
Docket NumberCase No: 2002/0648
CourtCourt of Appeal (Civil Division)
Date18 June 2003

[2003] EWCA Civ 814

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

The Hon Mr Justice Moses

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Phillips of Worth Matravers, Mr

Lord Justice Mantell and

Lord Justice Rix

Case No: 2002/0648

The Queen on the Application of Adrian John Wilkinson
Appellant
and
The Commissioners of Inland Revenue
Respondents

Ms Dinah Rose (instructed by Liberty for the Appellant) Mr Timothy Brennan, QC and Ms Ingrid Simler (instructed by The Solicitor of the Inland Revenue for The Commissioners of Inland Revenue)

Lord Phillips, MR :

This is the judgment of the Court.

1

This is an appeal against the second judgment delivered by Moses J on 14 February 2002 [2002] EWHC Admin. 182; [2002] STC 347. The issues raised are, to a degree, similar to some of the issues that we have addressed in the appeal of Hooper and Others. They arise in the context of taxation. They concern a legislative provision that granted to widows a tax allowance that was not granted to widowers. The respondents, the Commissioners of Inland Revenue, now concede and contend that this provision infringed Article 14, when read in conjunction with Article 1 of the First Protocol of the Human Rights Convention. Moses J so found and made a 'declaration of incompatibility' pursuant to section 4 of the Human Rights Act 1998 ('the HRA'). Mr Wilkinson, who is supported in this litigation by Liberty, contends that the legislation was not incompatible with Convention rights inasmuch as it lay within the statutory powers of the Commissioners to apply the legislation in a manner which would not involve any discrimination. He claims that the Commissioners are obliged by section 6(1) of the HRA to exercise those powers in his favour by making a money payment to him which will place him in the same position as if he had been granted the tax allowance made to widows.

2

Mr Wilkinson has been represented by Miss Dinah Rose. Her skeleton argument sets out the background facts and the legislative framework with admirable lucidity and we shall draw upon it in our judgment.

The background facts

3

By section 262 of the Income and Corporation Taxes Act 1988 (' ICTA') an income tax reduction known as widow's bereavement allowance ('WBA') was available to a widow for the year of assessment in which her husband died and the following year. ICTA makes no express provision for any equivalent income tax reduction for widowers. By section 34 of the Finance Act 1999, WBA has been abolished in relation to deaths occurring on or after 6 April 2000.

4

In 1997, Christopher Crossland, a widower who had been refused an allowance equivalent to WBA on the grounds of his sex, brought a complaint before the European Commission of Human Rights, alleging that the lack of any provision for a bereavement tax allowance for widowers under United Kingdom law discriminated against him on the grounds of his sex, in breach of Article 14 read with Article 8 and Article 1 of the First Protocol of the Convention.

The UK Government did not contest the admissibility of Mr Crossland's claim, which was referred to the Court, and declared admissible on 8 June 1999.

5

In September 1999, the Government, having never at any stage contested the merits of Mr Crossland's claim, reached a friendly settlement with him. Under the settlement, the Respondents paid to Mr Crossland the sum of £575, representing the full amount that he would have been paid had WBA been available to men at the date of his wife's death, and the sum of £3,962.48, representing his reasonable legal costs. As a result, Mr Crossland's case was struck out of the Court's list on 9 November 1999.

6

A similar sequence of events occurred in the case of Fielding v UK 29 January 2002 (unreported), The Times 25 February 2002.

7

Mr Wilkinson, the Claimant in these proceedings, is a widower whose wife died on 23 June 1999. After his wife's death, Mr Wilkinson became aware of Mr Crossland's case, and the settlement that the Respondents had reached with him. By a letter dated 13 November 2000, Mr Wilkinson claimed from the Inland Revenue the equivalent of WBA (he requested a "widower's bereavement payment"), referring to Mr Crossland's case.

8

By a letter dated 11 December 2000 (the decision challenged in these proceedings), the Respondents replied as follows:

"You have made a claim for a Widow's Bereavement payment for the year ended 5 April 2000. This was on the basis of the Crossland case which our Head Office have considered carefully. I can confirm that the allowance was challenged by Mr Crossland under the European Convention on Human Rights (ECHR) because it was only available to Women, and that the challenge was resolved through a friendly settlement.

However, there is still no basis in UK law for allowing Widowers to claim the Widow's Bereavement Allowance, I am therefore unable to accept your claim for the year in question."

9

On 27 February 2001, Liberty wrote to the Respondents on Mr Wilkinson's behalf, inviting them to allow his claim for WBA, or an extra-statutory equivalent. By a letter dated 5 March 2001, the Respondents denied that they had any power to grant an allowance to Mr Wilkinson, stating:

"The Board's care and management powers allow us to make relaxations which give taxpayers a reduction in liability to which they are not entitled under the strict letter of the law. Most concessions are made to deal with what are, on the whole, minor or transitory anomalies under the legislation and to meet cases of hardship at the margins of the code where a statutory remedy would be difficult to devise or would run to a length out of proportion to the intrinsic importance of the matter.

The care and management powers do not allow the Inland Revenue to contradict unambiguous, primary legislation such as the provisions that govern entitlement to WBA. The Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with a Convention right unless it is required to do so by primary legislation. In applying the rules of the WBA legislation, the Inland Revenue was applying a provision of primary legislation, Section 262 Income and Corporation Taxes Act 1988. The intention of the legislation was clear: to help widows, not widowers. If the effect of the Human Rights Act was to require us to grant WBA to widowers under our care and management powers, notwithstanding the clear terms of the legislation, that would effectively undermine Parliamentary sovereignty which the Human Rights Act was careful to preserve."

10

An application for judicial review was lodged on 9 March 2001. On 14 February 2002, Moses J granted a declaration that section 262 of ICTA was incompatible with the Convention, but otherwise dismissed the application.

The tax legislation

Widows' Bereavement Allowance

11

Section 262(1) of ICTA (as amended) provided as follows:

"Where a married man whose wife is living with him dies, his widow shall be entitled -

(a) for the year of assessment in which the death occurs, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year; and

(b) (unless she married again before the beginning of it) for the next following year of assessment, to an income tax reduction calculated by reference to an amount equal to the amount specified in section 257A(1) for that year."

12

The amount specified for the tax year 1999–2000 was £1,970, restricted to a 10% reduction of tax liability. The amount specified for the tax year 2000–2001 was £2,000, restricted to a 10% reduction of tax liability. Mr Wilkinson restricts his claim to the tax year 1999–2000

13

By section 34 of the Finance Act 1999, section 262 of ICTA ceased to have effect in relation to deaths occurring on or after 6 April 2000.

Duties and powers of the Commissioners of Inland Revenue

14

By section 1(1) of the Inland Revenue Regulation Act 1890 ('the 1890 Act'), it is lawful for the Crown to appoint persons to be Commissioners for the collection and management of inland revenue.

15

Section 13(1) of the 1890 Act provides:

"The Commissioners shall collect and cause to be collected every part of inland revenue, and all money under their care and management, and shall keep distinct accounts thereof at their chief office."

16

Section 1(1) of the Taxes Management Act 1970 ('the TMA') provides (as far as material):

"Income tax, corporation tax and capital gains tax shall be under the care and management of the Commissioners of Inland Revenue …"

The Human Rights Act

17

By section 6(1) of the HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is not disputed that the Commissioners are a public authority within the meaning of this provision.

18

Section 6(2) of the HRA provides:

"Subsection (1) does not apply to an act if —

(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

19

By section 3(1) of the HRA, primary legislation and subordinate legislation much be read and given effect in a way which is compatible with the Convention rights, so far as it is possible to do so. By section 3(2)(a), this provision applies to legislation whenever enacted.

The Human Rights Convention

20

Article 14 of the Convention...

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