DG v HMRC and Anor

A tribunal has no jurisdiction to determine a tax-credit appeal unless the notice challenged is a decision to which Tax Credits Act 2002 section 38 gives a right of appeal. A non-statutory Statement Like an Award Notice, issued during the provisional period between tax-credit years, is not such a decision even if HMRC’s conduct causes a claimant to believe otherwise.

Where no appealable decision was before the First-tier Tribunal, its decision must be set aside and replaced by a determination that the appeal could not be made. HMRC must provide the written decision under challenge, or relevant documents showing that no appealable decision exists, in its tribunal response.

The father appealed a notice dated 12 April 2012 concerning which parent had main responsibility for their daughter for child tax credit in the 2011/2012 tax year. HMRC and the First-tier Tribunal treated the notice as appealable. The First-tier Tribunal decided that the father had main responsibility until 23 January 2012.

Before the Upper Tribunal, HMRC established that the notice was a Statement Like an Award Notice issued after the tax year. It was not a statutory decision. A later end-of-year decision under section 18 of the Tax Credits Act 2002 was potentially appealable, but was not the decision appealed to the First-tier Tribunal.

The central issue was whether the First-tier Tribunal had jurisdiction to decide an appeal against the April 2012 notice.

1. Appeal allowed in part. The First-tier Tribunal’s decision was set aside because it had no jurisdiction. The Upper Tribunal remade the decision which the First-tier Tribunal should have made: the notice under appeal was not, in law, appealable.

2. Section 38 of the Tax Credits Act 2002 confines appeals to the specified statutory decisions. The 12 April 2012 notice was not a decision under sections 14, 15, 16 or 18. A section 15 decision could only concern a notified change increasing the maximum rate. Section 16 operated only during the period for which the award was made. A section 18 decision could follow only the section 17 final-notice process, and the relevant final notice was issued later.

3. The notice was instead a SLAN: a non-statutory notice informing the father of HMRC’s view about provisional payments. It did not itself decide entitlement and could not create a right of appeal. The parties’ understandable reliance on HMRC’s erroneous treatment of it could not confer jurisdiction on the tribunal.

4. The judge applied R(I) 17/94: where no appealable decision is before it, the First-tier Tribunal can do no more than determine that it lacks jurisdiction. The court also stated that HMRC was obliged by rule 24(4) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 to provide the decision under challenge, or, where relevant, the SLAN and material explaining the decision-making history.

5. As HMRC had written off any overpayment and made further payments, no practical substantive issue remained requiring a remittal.

• Upper Tribunal (Administrative Appeals Chamber): allowed the father’s appeal only to set aside the First-tier Tribunal’s decision and determine that the April 2012 notice was not appealable.
• First-tier Tribunal, Social Entitlement Chamber, Kidderminster: on 14 November 2014, under reference SC014/11/00974, determined the father’s appeal on its merits. Its decision was later set aside because no appealable decision had been before it.