VK v Commissioners for HMRC

Tribunal Procedure Rules may authorise the extension of a statutory time limit where their enabling Act permits that result. The necessary authority need not be contained in the enactment which imposed the primary limit.

Paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 authorised rules providing for judicial extension of time limits for commencing tribunal proceedings. The Social Entitlement Chamber Rules 2008, read as a whole, conferred that power in tax credits appeals. A rule incorporating an externally prescribed time limit may be read with the general power to extend time, provided the rules and their enabling Act support that construction.

HMRC decided that Ms K was not entitled to tax credits for 2010/11. HMRC maintained that her appeal, made in January 2013, was outside the 30-day limit in section 39(1) of the Tax Credits Act 2002.

The First-tier Tribunal, following JI v Commissioners for Her Majesty's Revenue and Customs, held that it lacked power to extend time and refused to admit the appeal. Ms K appealed to the Upper Tribunal.

The central issues were whether the Tribunals, Courts and Enforcement Act 2007 permitted Tribunal Procedure Rules to extend a statutory appeal limit, and whether the applicable Social Entitlement Chamber Rules in fact did so.

1. Appeal allowed. The First-tier Tribunal erred in proceeding on the basis that it had no power to extend time. Its decision was set aside and the case remitted to a differently constituted tribunal.

2. A statutory time limit can be extended only if legislation confers authority to do so. That authority may be supplied by the Act imposing the limit, another Act, or valid secondary legislation made under sufficiently broad enabling powers. Mucelli v Government of Albania did not establish that procedure rules can never provide for extension of a statutory time limit. It required a statutory basis for the power.

3. Paragraph 4 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 authorised rules making provision for time limits for initiating proceedings. Construed in the context and purposes of that Act, the power extended to provision for case-by-case judicial extensions of time limits set by other enactments. It did not authorise procedural rules effectively to rewrite a statutory primary time limit as a matter of general policy.

4. Rule 23 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 incorporated the tax credits appeal limit imposed by section 39(1) of the Tax Credits Act 2002. Read with rule 5(3)(a), which permitted extension of time for complying with a rule, it empowered the Tribunal to extend that incorporated limit. The referral machinery for disputed late appeals necessarily required the Tribunal to determine whether time should be extended and the appeal admitted.

5. The remitted tribunal was directed first to determine whether the appeal was late. If it was, it must decide whether to extend time and admit it. If admitted, it must reconsider all issues raised by the appeal.

The Tribunal also expressed non-dispositive views on the alternative human-rights arguments. Those issues did not arise because the appeal succeeded on the construction of the statutory rule-making powers and Rules.

• Upper Tribunal (Administrative Appeals Chamber): Allowed Ms K’s appeal, set aside the First-tier Tribunal’s decision for error of law, and remitted the case for rehearing.
• First-tier Tribunal (Social Entitlement Chamber): On 14 July 2014, following JI v Commissioners for Her Majesty's Revenue and Customs [2013] UKUT 0199 (AAC), held that it had no power to extend time and refused to admit the appeal.