ZM and AB CTC 2325 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 05 November 2013 |
| Neutral Citation | 2013 UKUT 547 AAC |
| Subject Matter | Tax credits and family credit |
| Respondent | HMRC (TC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CTC 2325 2011 |
| Appellant | ZM and AB |
[2014] AACR 17
(ZM v Her Majesty’s Revenue and Customs (TC)
[2013] UKUT 547 (AAC))
Judge Ward CTC/2325/2011
5 November 2013 CTC/2326/2011
Human rights – Article 6 – tax credits claims and payments – how regulation 5(4) and (8) of Tax Credits (Claims and Notification) Regulations to be applied
Mr M’s wife, Mrs B, was subject to immigration control under the Immigration and Asylum Act 1999. They submitted a joint claim to Her Majesty’s Revenue and Customs (HMRC) for tax credits. Their claim was refused apparently on the grounds that Mrs B had no national insurance number (NINO). However, under the Tax Credits (Claims and Notification) Regulations this requirement did not apply to anyone subject to immigration control. HMRC later confirmed that the claim had been refused because Mrs B had failed to provide proof of her identity. The particular regulation, whereby a NINO was not required, had not been overlooked but the condition for its application had not been established. The First-tier Tribunal (F-tT) considered that it had no jurisdiction in these circumstances. The appellants appealed to the Upper Tribunal (UT) but, before the appeal could proceed, the HMRC awarded tax credits to the appellants – it accepted Mrs B had not understood what proof was needed to confirm her identity (neither she nor Mr M understood English). The appellants continued with their appeal so as to establish whether the F-tT had acted correctly. The issue before the UT was how regulation 5(4) and (8) fell to be adjudicated upon.
Held, allowing the appeal, that:
- section 14 of the Tax Credits Act 2002 (TCA) did not extend to disputes about whether a valid claim had been made. The adjudication structure for tax credits was different from that under social security law and had been adopted advisedly. Investigation of facts was not always precluded in judicial review (even if not the norm), but the starting point for a court in judicial review of confining itself to facts before the decision-maker, subject to exceptions none of which applied in the instant case, meant that it was not a sufficient remedy for the purposes of Article 6 of the Human Rights Act 1998 in this class of case (paragraphs 28 to 32)
- the F-tT erred in law in not applying section 3(1) of the Human Rights Act 1998. It was appropriate to do so in such a way that it was possible to read and give effect to section 14(1) of the TCA, read together with section 38 of the same Act, so as to have the effect that HMRC was to be viewed as having taken a decision which then became appealable (paragraphs 62 to 67)
- the claim for tax credit could not lawfully be rejected for failure to comply with any of the requirements of paragraph (4) of regulation 5 (paragraph 70).
The F-tT’s decision was set aside by the judge and re-made.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Martin Williams, Welfare Rights Worker, Child Poverty Action Group, appeared for the appellants.
Mr James Cornwell of counsel, instructed by the Solicitor to Her Majesty’s Revenue and Customs (HMRC), appeared for the respondent.
Decision: The appeals are allowed. The decisions of the First-tier Tribunal sitting at Manchester on 3 May 2011 under references SC946/10/06338 and SC946/11/00924 involve the making of an error of law and are set aside. Acting under section 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007 I substitute the decision which the tribunal ought to have given, namely that, applying section 3(1) of the Human Rights Act 1998, section 14 of the Tax Credits Act 2002 fell to be read so as to confer upon the tribunal jurisdiction to consider the appeals against the rejection of the appellants’ claims for tax credit to the extent that the appeals were made on the ground that regulation 5(8) of the Tax Credits (Claims and Notification) Regulations 2002/2014 applied; and that, the female appellant being a “person subject to immigration control” within the meaning of section 115(9)(a) of the Immigration and Asylum Act 1999, the claims for tax credit could not lawfully be rejected for failure to comply with any of the requirements of paragraph (4) of regulation 5.
REASONS FOR DECISION
What this case concerns
1. This case concerns the correct means of adjudicating upon a dispute as to whether certain formalities required as part of a claim for child tax credit have been complied with.
2. The appellants, Mr M and Mrs B were at all material times a “couple” for tax credit purposes. Mr M is a Bengali speaker, requiring the assistance of an interpreter in his dealings with HMRC and with the First-tier Tribunal. Although there is no direct evidence before me as to Mrs B’s abilities in the English language, there is no reason to suppose that they are any better.
3. Mrs B was (it is now accepted) at the material times a “person subject to immigration control” within section 115(9)(a) of the Immigration and Asylum Act 1999, which provides:
“(9) ‘A person subject to immigration control’ means a person who is not a national of an EEA State and who –
(a) requires leave to enter or remain in the United Kingdom but does not have it;
…”
4. There are only limited circumstances in which a “person subject to immigration control” is entitled to tax credits. Particulars can be found in regulation 3 of the Tax Credits (Immigration) Regulations (SI 2003/653) and need not be set out here, but it is not in dispute that Mrs B, if otherwise entitled to tax credits, fell within their ambit.
5. Entitlement to a tax credit is dependent on the making of a claim for it: Tax Credits Act 2002 (TCA), section 3(1). Members of a “couple” are required to make a joint claim: TCA section 3(3) and (5A).
The decision-taking process
6. When they did so, their claim was refused by decisions dated 13 January 2010 and 19 May 2010. The circumstances in which this happened are a little unclear, not least because, as recorded, those decisions did not fully address the decision which it appears the HMRC in fact took.
7. As recorded, the decision of 13 January 2010 stated that:
“On 14 September 2009 HMRC decided [Mr M] had not made a claim for tax credits in accordance with the regulations. This was because [Mrs B], his partner, did not have a National Insurance number (NINo), it was not possible to allocate one and HMRC has not waived the requirement for a NINo in this case.”
8. Quite why the decision of 13 January 2010 took the form of recording what HMRC had apparently already decided on 14 September 2009 is unclear to me, but I do not think anything turns on it.
9. The decision of 19 May 2010 was (apart from the reference to the September 2009 decision) in similar form.
10. The decision notices were referring to the requirement, discussed further below, that a person applying for tax credit is required either to have a National Insurance number (NINO) or to meet any of the alternative requirements in respect of a NINO prescribed by regulation 5(4) of the Tax Credits (Claims and Notification) Regulations (SI 2002/2014) (the Claims and Notification Regulations) before their claim for tax credit can be valid. That requirement does not, however, apply to any person who is subject to immigration control within the meaning set out in section 115(9)(a) of the Immigration and Asylum Act 1999 and to whom a national insurance number has not been allocated: regulation 5(8), introduced with effect from 6 April 2009.
11. The appellants sought to appeal against the refusals to the First-tier Tribunal. The tribunal’s decisions on 3 May 2010 were that it did not have jurisdiction to entertain the appeals. Against those decisions, the appellants now appeal to the Upper Tribunal with my permission, given on 21 September 2011. The respondent has since conceded, in a submission dated 19 January 2012, that the claims were not invalid because of Mrs B’s inability to provide a NINO or otherwise meet the NINO requirements and has agreed to make an award of tax credit, the calculation of which was still pending at the time of the oral hearing before me (and would carry (or would have carried) fresh appeal rights if there proved to be a dispute about it). However, together with Child Poverty Action Group, who are representing them, the appellants wish to continue with the present appeal, so that the issue of whether the First-tier Tribunal has jurisdiction to entertain an appeal of the type in issue in this case can be clarified for the benefit of others in a similar position.
12. I held an oral hearing on...
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