LJ-v-HM Revenue & Customs (TC) [2015] NICom 10
Decision No:  C2/14-15(TC)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

TAX CREDIT

Appeal to a Social Security Commissioner
on a question of law from a Tribunal's decision
dated 13 December 2013

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	The decision of the appeal tribunal dated 13 December 2013 is in error of law.  The error of law identified will be explained in more detail below.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

2.	For further reasons set out below, I am unable to exercise the power conferred on me by Article 15(8)(a) of the Social Security (Northern Ireland) Order 1998 to give the decision which the appeal tribunal should have given.  This is because there may be further findings of fact which require to be made and I do not consider it expedient to make such findings, at this stage of the proceedings.  Accordingly, I refer the case to a differently constituted appeal tribunal for re-determination.

	Background

3.	On 13 September 2011 a decision-maker in HMRC awarded the appellant entitlement to working tax credit (WTC) at a nil rate and child tax credit (CTC) amounting to £5957.78 for the period from 6 April 2011 to 5 April 2012.  On 27 July 2012 another decision-maker in HMRC decided that the appellant remained entitled to an award of WTC at a nil rate from 6 April 2011 and CTC of £18.97 for the period from 6 April 2011 to 5 April 2012.  The award of CTC of £18.97 represented an award for the period of one day that is 6 April 2011.

4.	An appeal against the decision dated 27 July 2012 was received in HMRC on 30 August 2012.  In the original appeal submission, at paragraph 15 of section 5, the Appeals Writer makes reference to a document at page 49 of the appeal submission and indicates that:

‘The Appeal Officer decided the information and evidence available confirmed that the decision of 27 July 2012 to remove the elements in respect of (the appellant’s children) from (the appellant’s) tax credit assessment for the period 06 April 2011 to 05 April 2012, with effect from 07 April 2011, was correct.’

5.	It would appear, therefore, although it is nowhere specifically stated, that the Appeals Officer, after further investigation, had reconsidered the decision dated 27 July 2012.  The document at page 49 of the appeal submission is undated and is not signed.  It is headed ‘Brief summary of decision you have made and reason why’.

6.	The appeal tribunal hearing took place on 13 December 2013.  The appellant was present and was represented. HMRC were represented by a presenting officer.  The appeal tribunal disallowed the appeal and confirmed the decision dated 27 July 2012.  The decision notice for the appeal tribunal’s decision had, originally, set out the terms of the award of entitlement to CTC for the one-day period of 6 April 2011 at £16.29.  This figure was amended by the legally qualified panel member (LQPM) of the appeal tribunal, on 14 January 2014, to £18.97.  I have noted that at paragraph 8 of Section 5 of the original appeal submission, the figure of £16.29 is mentioned which may have been the source of the appeal tribunal’s initial recording error.

7.	On 25 March 2014 an application for leave to appeal to the Social Security Commissioner was received in the Appeals Service (TAS).  On 4 April 2014 the application for leave to appeal was refused by the LQPM.  In the file of papers which is before me is a copy of a further application for leave to appeal to the Social Security Commissioner which is signed and dated by the appellant on 2 April 2014 and is date-stamped as having been received in TAS on 8 April 2014.

	Proceedings before the Social Security Commissioner

8.	On 12 May 2014 a further application for leave to appeal was received in the Office of the Social Security Commissioners.  On 16 June 2014 observations on the application for leave to appeal were sought from HMRC.  In written observations received on 9 July 2014, Mr E, on behalf of HMRC, supported the application for leave to appeal.  Written observations were shared with the appellant on 11 July 2014.

9.	On 22 September 2014 I accepted the late application for leave to appeal and granted leave to appeal.  In granting leave to appeal, I gave, as a reason, that it was arguable that the appeal tribunal had failed properly to explain the question of entitlement to CTC for a particular period.  I also directed that, after having considered the papers which were before me, the appeal could properly be determined without an oral hearing.

	Errors of law

10.	A decision of an appeal tribunal may only be set aside by a Social Security Commissioner on the basis that it is in error of law.  What is an error of law?

11.	In R(I) 2/06 and CSDLA/500/2007, Tribunals of Commissioners in Great Britain have referred to the judgment of the Court of Appeal for England and Wales in R(Iran) v Secretary of State for the Home Department ([2005] EWCA Civ 982), outlining examples of commonly encountered errors of law in terms that can apply equally to appellate legal tribunals.  As set out at paragraph 30 of R(I) 2/06 these are:

“(i)	making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);
(ii)	failing to give reasons or any adequate reasons for findings on material matters;
(iii)	failing to take into account and/or resolve conflicts of fact or opinion on material matters;
(iv)	giving weight to immaterial matters;
(v)	making a material misdirection of law on any material matter;
(vi)	committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of proceedings; …

Each of these grounds for detecting any error of law contains the word ‘material’ (or ‘immaterial’).  Errors of law of which it can be said that they would have made no difference to the outcome do not matter.”

	Analysis

12.	In her application for leave to appeal, the appellant has set out two grounds on the basis of which she submits the decision of the appeal tribunal was in error of law.  The first was that throughout the relevant period she had retained legal custody of the children and that at no stage was there sought an emergency order in favour of her former partner.  The second was that the tax credits’ legislation allowed for temporary absences and she was of the view that consideration should have been given to treating a particular period as a temporary absence.

13.	In support of the second ground the appellant made reference to ‘SC048/11/03180’.  In his written observations on the application for leave to appeal, Mr E submits that the applicant’s reference is to the decision of a First-tier Tribunal which was subsequently appealed to the Upper Tribunal and became the decision in GJ v HMRC (TC) [2013] UKUT 561 (AAC).

14.	In his written observations on the application for leave to appeal, Mr E opposed the two grounds set out by the appellant.  In his role as amicus curiae, however, Mr E also submitted that:

‘… the tribunal has failed to properly explain its decision in respect of the period from the end of September 2011.  By that stage it appears that the claimant’s situation had improved and a joint residence order was made, seemingly by consent, which set out the level of input that each party would have in in respect of the children, including a schedule for over-night stays with each claimant.  Whilst the order itself was not, of course, determinative of which claimant had main responsibility for the claimant, it was evidence that the circumstances as they were up until the making of the order no longer obtained.  I submit that although the tribunal were clearly aware of the joint residence order (the tribunal described the division of care and responsibility from that point as being a “50/50 split”), the tribunal went on to determine the whole period by reference to the circumstances as they were from April 2011.  I submit that that was not the correct approach and as a result, the tribunal’s findings and reasons for the period from September 2011 are deficient.’

15.	I accept Mr E’s submission and, for the reasons which he has set out, agree that the decision of the appeal tribunal is in error of law.

16.	As was noted above, Mr E has opposed the two grounds on which the appellant sought leave to appeal to the Social Security Commissioner.  It may be the case that the appellant will wish to renew those arguments to the appeal before the differently constituted appeal tribunal to which the appeal is remitted.  If that is the case then HMRC may wish to rely on Mr E’s firm rebuttal of those arguments as set out in his written observations of 9 July 2014.

	Disposal

17.	The decision of the appeal tribunal dated 13 December 2013 is in error of law.  Pursuant to the powers conferred on me by Article 15(8) of the Social Security (Northern Ireland) Order 1998, I set aside the decision appealed against.

18.	I direct that the parties to the proceedings and the newly constituted appeal tribunal take into account the following:

(i)	the decision under appeal is the decision dated 27 July 2012 in which decision-maker in HMRC decided that the appellant remained entitled to an award of WTC at a nil rate from 6 April 2011 and CTC of £18.97 for the period from 6 April 2011 to 5 April 2012;

(ii)	HMRC is directed to prepare a new submission for the further oral hearing of the appeal;

(iii)	it will be for both parties to the proceedings to make submissions, and adduce evidence in support of those submissions, on all of the issues relevant to the appeal; and

(iv)	it will be for the appeal tribunal to consider the submissions made by the parties to the proceedings on these issues, and any evidence adduced in support of them, and then to make its determination, in light of all that is before it.

(signed)  K Mullan

Chief Commissioner

26 February 2015