Convergence Management Consultants Limited v The Commissioners for HMRC

Permission to appeal from the First-tier Tribunal lies only where the proposed appeal has a realistic prospect of success on a point of law, or there is another compelling reason. Under the Coronavirus Job Retention Scheme, eligibility and the amount reimbursable are separate questions. The gateway condition in paragraph 5 of the Schedule to the First CJRS Direction must be satisfied before paragraph 8(1) can operate. The phrase “reasonably expected to be paid” concerns the amount capable of reimbursement. It cannot establish eligibility where the employer did not make the required earnings payment in 2019–20 and report it through RTI. A purposive reading of the scheme does not justify disapplying that express gateway condition.

Convergence Management Consultants Ltd applied for permission to appeal to the Upper Tribunal against the First-tier Tribunal’s dismissal of its appeal concerning repayment of Coronavirus Job Retention Scheme payments totalling £46,619.48.

The First-tier Tribunal had held that the company failed the paragraph 5 gateway condition because it had not made an earnings payment in 2019–20 shown in an RTI return made by a relevant CJRS day. It rejected reliance on paragraph 8(1), which concerns earnings paid or reasonably expected to be paid. The company argued that the scheme required a unified and purposive interpretation and relied on two First-tier Tribunal decisions concerning reasonable expectations of payment. The Upper Tribunal reconsidered permission after an oral hearing and addressed whether the grounds disclosed an arguable material error of law.

1. Permission refused. The proposed grounds had no realistic prospect of success, disclosed no arguably material error of law, and raised no other compelling reason for permission.
2. An appeal from the First-tier Tribunal lies only on a point of law under section 11 of the Tribunals, Courts and Enforcement Act 2007. Applying the approach stated in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538, permission is appropriate where the grounds disclose a realistic, rather than fanciful, prospect of success or another good reason.
3. The First-tier Tribunal correctly treated paragraph 5 of the Schedule to the First CJRS Direction as prescribing the gateway conditions for a claim. The company had not made the required payment of earnings in 2019–20 shown in an RTI return by a relevant CJRS day. Its failure to satisfy that condition was fatal to entitlement.
4. Paragraph 8(1) addresses the amount reimbursable after the gateway conditions have been met. The reference to earnings “reasonably expected to be paid” therefore concerns the amount of reimbursement, not eligibility. The basis of the expectation, whether connected with previous employment or an anticipated payment from BT Group Plc, could not cure the failure to satisfy paragraph 5.
5. A purposive interpretation of the CJRS Directions does not require paragraphs 5 and 8 to be elided or paragraph 5(a)(i) to be disapplied. The provisions are logically distinct and compatible with the scheme’s purpose. The two First-tier Tribunal decisions relied on by the company addressed reasonable expectation under paragraph 8 and did not support disapplication of the paragraph 5 gateway.
6. Permission to appeal to the Upper Tribunal was refused.

1. Upper Tribunal (Tax and Chancery Chamber): permission to appeal was refused on 28 October 2025.
2. First-tier Tribunal (Tax Chamber): the company’s appeal against HMRC’s decisions requiring repayment of Coronavirus Job Retention Scheme payments was dismissed on 9 January 2025.
3. First-tier Tribunal (Tax Chamber): permission to appeal was refused on 3 April 2025. The application for permission to appeal to the Upper Tribunal was then renewed in time and reconsidered at an oral hearing.