JD-v-Department for Communities (TC) [2017] NICom 21

Decision No:  C3/16-17(TC)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

TAX CREDIT

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 15 January 2016

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is a claimant’s application for leave to appeal from the decision of an appeal tribunal sitting at Downpatrick on 15 January 2016.

2.	For the reasons I give below, I grant leave to appeal.  However, I disallow the appeal. 

	REASONS

	Background

3.	The applicant claimed tax credits (TC) from 6 April 2011 from HM Revenue and Customs (HMRC) as a single claimant responsible for five children.  HMRC calculated her entitlement on the basis that she was a single claimant.  However, following a checking exercise, HMRC decided that the applicant was living with a Mr AO at the address from which she had made her claim.  Her TC payments were suspended on 8 January 2013.  On 14 January 2013 HMRC decided that the applicant was not entitled to TC for the tax year 2011/12 on the basis that she was not a single claimant. The applicant appealed. 

4.	The appeal was considered by a tribunal consisting of a legally qualified member (LQM) sitting alone.  The tribunal disallowed the appeal. The applicant then requested a statement of reasons for the tribunal’s decision and this was issued on 19 April 2016.  The applicant applied to the LQM for leave to appeal from the decision of the appeal tribunal. Leave to appeal was refused by a determination issued on 1 June 2016. On 17 June 2016 the applicant applied for leave to appeal from a Social Security Commissioner. 

	Grounds

5.	The applicant submits that the tribunal has erred in law on the basis that:

(i)	it irrationally found that the applicant and Mr AO were living together as an unmarried couple for the relevant period;

(ii)	it irrationally found that the applicant’s “use of a debit card for a joint bank account was not believable”;

(iii)	 it failed to state what weight it attached to documentary evidence provided by the applicant – namely utility bills in her sole name, relying on SW v HMRC [2015] UKUT 394;

(iv)	it failed to attach sufficient weight to the applicant’s oral evidence;

(v)	it erred in finding that the applicant’s evidence was not credible and in finding that the respondent had met the burden of proof to the required threshold. 

6.	HMRC was invited to make observations on the appellant’s grounds.  Ms Collins responded on behalf of HMRC.  She submitted that the tribunal had not erred in law as alleged and indicated that HMRC did not support the application. 

7.	The applicant’s solicitor responded in turn, submitting in particular that the adverse inference drawn from the applicant’s evidence was perverse. HMRC responded and continued to submit that the tribunal had not erred in law. 

	The tribunal’s decision

8.	From the statement of reasons prepared by the tribunal, I observe that it had documentary evidence before it in the form of the HMRC submission to the tribunal, over 80 pages of bank statements for accounts held by the applicant, and jointly by Mr AO and the applicant, and a letter from Birmingham Midshires (a banking company) dated 18 December 2015, regarding a joint mortgage held by Mr AO and the applicant.  It heard oral evidence from the applicant, who was represented at the hearing.

9.	The tribunal found that the onus was on HMRC to establish that the applicant was not entitled to TC as a single claimant from 6 April 2011 to 5 April 2012 on the grounds that she was living as one of an unmarried couple at that period.  The tribunal found that the documentary evidence submitted by the HMRC established continuing financial interdependence.  However, it found that this did not establish the case advanced by HMRC to the required standard. It similarly found that the fact that Mr AO was the father of five of the applicant’s children, including one born in July 2013, did not establish the HMRC case to the required standard.  Essentially, the tribunal found that the evidence advanced by HMRC was inconclusive.

10.	However, the tribunal placed weight on oral evidence given by the applicant regarding her use of a debit card for a joint bank account held by her and Mr AO.  She told the tribunal that Mr AO controlled the account and only released a debit card to her for specific purposes for the children.  The tribunal found that the card was used almost on a daily basis for various purposes.  It found that the applicant had unrestricted use of the card on the balance of probabilities.  It found her oral evidence claiming that she had restricted use of the joint bank card to be simply not believable.  It found that the lack of credibility of the applicant’s account established the HMRC case on the balance of probabilities.    

	Relevant legislation

11.	The statutory provisions relating to claims for TC which have relevance to this case appear at section 3 of the Tax Credits Act 2002 (the 2002 Act), as amended. This provides:

3 Claims

(1)	Entitlement to a tax credit for the whole or part of a tax year is dependent on the making of a claim for it.

(3) A claim for a tax credit may be made—

(a) jointly by the members of a married couple or unmarried couple both of whom are aged at least sixteen and are in the United Kingdom, or

(b) by a person who is aged at least sixteen and is in the United Kingdom but is not entitled to make a claim under paragraph (a) (jointly with another).

(4) Entitlement to a tax credit pursuant to a claim ceases—

(a) in the case of a joint claim, if the persons by whom it was made could no longer jointly make a joint claim, and

(b) in the case of a single claim, if the person by whom it was made could no longer make a single claim.

(5A) In this Part “couple” means–

(a) a man and woman who are married to each other and are neither–
(i) separated under a court order, nor

(ii) separated in circumstances in which the separation is likely to be permanent,

(b) a man and woman who are not married to each other but are living together as husband and wife,

(c) two people of the same sex who are civil partners of each other and are neither–

(i) separated under a court order, nor

(ii) separated in circumstances in which the separation is likely to be permanent, or

(d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners.

(8) In this Part—

“joint claim” means a claim under paragraph (a) of subsection (3), and 
“single claim” means a claim under paragraph (b) of that subsection. 

	Hearing

12.	I held an oral hearing of the application.  The applicant was present and was represented by Mr Friel of Shaw & Company solicitors.  The respondent was represented by Ms Fee of Counsel instructed by the Crown Solicitors Office.  I am grateful to the representatives for their assistance.  At the outset of the hearing, the parties gave their consent to me treating the application as an appeal, should I decide to grant leave. 

13.	Mr Friel submitted that the tribunal had erred by making an irrational decision on the basis of the evidence before it.  He submitted that the tribunal made it clear that the documentary evidence alone did not establish that the applicant was living as husband and wife with a partner.  He submitted that the only other evidence was the applicant’s oral evidence and that she denied being in such a relationship.  Therefore the tribunal had insufficient basis for its decision. 

14.	He submitted that the tribunal had erred by failing to explain the weight placed by it on each piece of evidence.  He submitted that the tribunal had appeared to reject the evidence provided by the HMRC as probative to the required standard.  It had not specified what statements by the applicant it had found to be incredible and the weight placed on any such statements. 

15.	He submitted that the HMRC did not have sufficient evidence to pursue the issue against the applicant, that it had pursued the case against the applicant without due cause and that the adverse inference drawn from the evidence of the applicant concerning her use of a joint bank card was perverse.  He submitted that the HMRC had not addressed the correct questions, contrary to AK v HMRC [2016] UKUT 98. 

16.	Ms Fee did not accept the criticism of the tribunal decision. She accepted that the documentary evidence produced by HMRC before the tribunal had not satisfied it to the required standard, suggesting no more than a possibility that the applicant was in a continuing relationship.  However, it had considered that the bank statements provided by the applicant and her oral evidence about her use of a bank card for a joint account with her alleged partner raised more than a possibility of this, and led to the tribunal being satisfied on the balance of probabilities. 

17.	She submitted that the onus of proof in the proceedings before the tribunal was on the applicant.  Whereas the tribunal’s statement of reasons indicated that it would not have been satisfied but for the decision of the applicant to give evidence, the question of whether to give evidence was a tactical matter requiring advice, and could not give rise to an error of law by the tribunal.  She submitted that the tribunal was under no obligation to specify the weight it had given to individual pieces of evidence. It had given its statement of reasons and that statement could not be more clear. 

18.	She submitted that the tribunal applied the law correctly, and addressed what had been described in case law as relevant “signposts”.  The decision of the tribunal was based on evidence and its assessment of the applicant’s credibility was one part of that.  She submitted that the applicant could not show irrationality or perversity in the tribunal’s decision. 

	Assessment

19.	In the light of the submissions of Mr Friel, which I accept as arguable, I grant leave to appeal and I proceed to deal with the application as if it was an appeal. 

20.	The HMRC decision under appeal appears to have been made on 14 January 2013, but no copy of the decision as notified to the applicant appears in the papers before the tribunal.  A copy of a notification to the applicant made on 11 January 2013, which expresses doubt over her entitlement as a single claimant and which indicates that her award will stop from 6 April 2011 and that an amendment is to be made to her payments for 2012/13, appears at page 20 in the papers.  However, this is not the entitlement decision issued to the applicant for 2011/12. Nevertheless, no issue has been raised about the absence of the entitlement decision from the tribunal papers, and it appears to be safe to conclude that the decision under appeal, being made outside the prospective period of award, was an entitlement decision made under section 18 of the 2002 Act and issued on 14 January 2013. 

21.	The question before the tribunal was whether the applicant was entitled to claim TC as a single person for the tax year from 6 April 2011 to 5 April 2012, or whether she was a member of a couple.  The applicant claimed to be a single person but HMRC determined that information it held showed that the applicant was living together as husband and wife with Mr AO. 

22.	As stated by Baroness Hale at paragraph 61-62 of Kerr v. Department for Social Development [2004] UKHL 23 (also reported as an annex to R1/04(SF)), the process of benefits adjudication is inquisitorial rather than adversarial.  It seems plain that the same is true of the process of adjudication of TC claims. Of this process, Lord Hope in Kerr v. Department for Social Development has said at paragraph 15:

“in this situation there is no formal burden of proof on either side.  The process is essentially a fact-gathering exercise, conducted largely if not entirely on paper, to which both the claimant and the Department must contribute”. 

23.	When a decision taken by the Department is appealed, the appeal tribunal stands in the shoes of the Department and has the power to consider any issue and make any decision the Department could have made (R(IB)2/04).  Again, it seems plain that the principles set out by Lord Hope at paragraph 16 of Kerr v. Department for Social Development equally apply in the context of an appeal concerning TC.  The tribunal in the present case was essentially engaged in a fact-finding exercise with no formal burden of proof. 

24.	The tribunal had stated that the burden of proof was on HMRC. Ms Fee submitted that it was on the applicant.  As I stated in JS v DSD [2016] NI Com 74, at paragraph 36, at the end of the day, the precise application of the burden of proof is really only relevant in the most finely balanced of cases.  I do not consider that this is such a finely balanced case that the outcome is affected by the question of where the burden of proof lies. 

25.	As the applicant and Mr AO are unmarried, the relevant legislative provision is section 3(5A)(b) of the 2002 Act.  The question for the tribunal was whether they were a man and woman who were not married to each other but were “living together as husband and wife”.  The latter expression is not defined in legislation.  Nevertheless, principles from jurisprudence in the wider field of social security law were relied upon by HMRC.  Specifically HMRC pointed to R(SB)17/81, where Commissioner Rice  applied the criteria from the Supplementary Benefits Handbook which had, in turn, been approved by Woolf J in Crake v Supplementary Benefit Commission (22 July 1980 unreported) and had been described as an “admirable signpost”. In R(SB)17/81 Commissioner Rice further referred to an older case, R(G)3/71, concerned with a national insurance benefit and decided by Commissioner Shewan.  Commissioner Shewan had said at paragraph 5: 

“It is generally accepted that the question of whether a woman is cohabiting with a man as his wife, within the meaning of the statute, requires an examination of three main matters: (1) their relationship in relation to sex: (2) their relationship in relation to money: and (3) their general relationship.  Although all three are as a rule relevant, no single one of them is necessarily conclusive”. 

26.	Commissioner Rice had set out the criteria from the Supplementary Benefits Handbook at paragraph 7 of R(SB)17/81, which reads: 

‘7. In view of the importance of the criteria to be applied I think it is worthwhile my setting out exactly what the particular handbook referred to does say.  The criteria read as follows:— 

“(a) Members of the same household.  The man must be living in the same household as the woman and will usually have no other home where he normally lives.  This implies that the couple live together wholly, apart from absences necessary for the man’s employment, visits to relatives etc. 

(b) Stability.  Living together as husband and wife clearly implies more than an occasional or very brief association. When a couple first live together, it may be clear from the start that the relationship is similar to that of husband and wife, e.g. the woman has taken the man’s name and has borne his child, but in cases where the nature of the relationship is doubtful the Commission will be prepared to continue the woman’s benefit for a short time in order to avoid discouraging the formation of a stable relationship. 

(c) Financial Support. In most husband and wife relationships one would expect to find financial support of one party by the other, or sharing, of household expenses, but the absence of any such arrangement is not conclusive. 

(d) Sexual Relationship.  A sexual relationship is a normal and important part of a marriage and therefore of living together as husband and wife.  But its absence does not necessarily prove that a couple are not living as husband and wife, nor does its presence prove that they are.  The Commission’s officers are instructed not to question claimants upon the physical aspect of their relationship, though claimants may choose to make statements about it. 

(e) Children.  When a couple are caring for a child or children of their union, there is a strong presumption that they are living as husband and wife. 

(f) Public Acknowledgement.  Whether the couple have represented themselves to other parties as husband and wife is relevant, but many couples living together do not wish to pretend that they are actually married, and the fact that they retain their identity publicly as unmarried persons does not mean they cannot be regarded as living together as husband and wife”.’

27.	Commissioner Rice took the view that the above statement of Commissioner Shewan corresponded with the criteria set out in the Supplementary Benefits Handbook, with the consequence that essentially the same criteria applied for both supplementary benefit and national insurance benefit purposes. 

28.	Following the introduction of TC, it can be seen that Deputy Commissioner Green in CTC/3864/2004 expressed the view that the same criteria as applied in social security jurisprudence may provide a useful starting point when considering this issue in the tax credits field.  In CTC/3059/2004 Deputy Commissioner White accepted that the framework established in relation to other benefits was helpful and he applied the same criteria, (setting aside the tribunal’s decision on the ground that it made a finding that there was a sexual relationship between the alleged members of the couple which was unsupported by evidence).

29.	In this jurisdiction, Chief Commissioner Mullan in KP-v-Department for Social Development [2012] NI Com 256 has said:

‘28.	The social security principles on cohabitation have been accepted in the context of claims to TC – see the decisions of the Deputy Commissioners in CTC/3864/2004 at paragraph 10 and CTC/3059/2004 at paragraph 12.  It seems to me, however, that there should not be a routine citation of the principles in R(SB) 17/81, or parallel decisions, in appeals where cohabitation is a specific issue.  Guidance may be derived from such jurisprudence as to the factors to be taken into account in deciding whether a claimant is living together as husband and wife with another but they should not be taken as conclusive.  It seems to me that when one considers the guidance which has been offered to HMRC decision-makers those factors are given a context in the period since they were first developed – see paragraphs CCM15000-CCM15290 of the Tax Credits Claims Compliance Manual’.

30.	By this I understand Chief Commissioner Mullan to be saying that some of the principles applied in a social context of a number of decades ago should not be decisive factors in the present.  This seems to me to be an important qualification to apply in a changing society. 

31.	The Claimant Compliance Manual of HMRC is a publicly available document.  It does not have the status of law and is not binding on tribunals.  It sets out the HMRC’s own criteria in determining whether or not two people are living together as husband and wife.  Some relevant sections read:

‘CCM15040 Undisclosed Partners: Couples who are Unmarried and Not Civil Partners

As well as couples who are married and civil partners Section 3(5A) defines a couple as:

•	a man and woman who are not married to each other but who are living together as husband and wife (LTAHAW).

•	two people of the same sex who are not civil partners of each other but are living together as if they were civil partners (LTACP) or a married couple (LTAASSC).

The legislation does not say what conditions must exist before we will conclude that a couple are LTAHAW. We have therefore adopted the approach used by the DWP. Using the same approach for same-sex couples means they are not treated any more or less favourably.

Since 1977 the Department for Work and Pensions (DWP - formerly the Benefits Agency) has followed a standard approach to the question of whether a man and woman are living together based on a list of criteria to be considered both individually and as a whole.  Working Families’ Tax Credit (WFTC) adopted the same criteria and this has continued for WTC and CTC.  This approach ensures unmarried couples are not treated any more or less favourably than married couples.

Living together as husband and wife (LTAHAW) has its normal meaning in every day language, but the Courts and administrative practice have developed a number of criteria to help apply that meaning to every day situations. They are:-

•	living in the same household - CCM15070-CCM15075
•	stability of relationship - CCM15080
•	financial support - CCM15090
•	dependent children - CCM15100
•	public acknowledgement - CCM15110

Remember that these are only indicators to help you form a sustainable view of whether a couple are living together for the purposes of the tax credit claim.  They are not intended as a crude checklist and you should not apply a blanket “four out of five ticked” type test.  The weight and worth of each indicator will vary from relationship to relationship and you should arrive at your conclusions on the balance of evidence, based on the facts (see CCM15060).  However, you need to be aware of the changing nature of relationships - see CCM15045.’

32.	These criteria demonstrate a policy intention for a uniform approach to be adopted by those administering social security and those administering tax credits.  The criteria adopted by HMRC overlap with the criteria traditionally applied in authoritative social security case law in “living together” cases, with the obvious omission of a reference to a sexual relationship.  Even at the time of the Supplementary Benefit Handbook, officials were instructed not to question claimants about the physical aspect of their relationship. I observe that HMRC policy in the Claimant Compliance Manual at CCM1520 states:

‘DWP used to consider the couple’s sexual relationship as one of the criteria for determining LTAHAW but this is no longer the case.  The couple’s sexual relationship is of little help in deciding whether they are living together as husband and wife or living together as civil partners’.

33.	However, there is still no statutory definition of “living together”.  In this context, there would not appear to be any jurisprudential warrant for excluding the aspect of a sexual relationship as a relevant factor, should relevant information be volunteered. 

34.	In the present case, evidence was considered by the tribunal which had been submitted by HMRC under the headings of financial support, sexual relationship, membership of the same household, stability of the relationship and public acknowledgement. 

35.	Part of the evidence consisted of documentary material tending to show financial connections between Mr AO and the applicant’s (and the couple’s former) address.  Part of that information consisted of a PAYE Service document dated July 2014 which held the applicant’s address as the address for Mr AO. A screen print of a record held by the Department for Work and Pensions in Great Britain showed that Mr AO was associated with the applicant’s address from 20 March 2007.  A Credit Report for the applicant dated July 2012 noted that Mr AO was on the electoral register at the applicant’s address from April 2008.  It further noted four connections between Mr AO and the address prior to or in August 2008 attributed to a bank.  A Credit Report for Mr AO placed him at the applicant’s address based on the electoral register.  A number of debts between 2006 and 2008 were associated with the applicant’s address.  Three searches had been carried out in late 2011 and early 2012 for commercial and insurance purposes, placing Mr AO at the applicant’s address on the basis of the same information. 

36.	In terms of sexual relationship, the applicant confirmed that Mr AO was the father of her youngest son, born in July 2009, despite having informed the HMRC that they were no longer a couple in August 2008.  It was further observed in the submission to the tribunal that the applicant’s youngest daughter, born in July 2013, had been given the surname of Mr AO, although the identity of her father was not known to the HMRC.  The applicant’s representative at the hearing before the tribunal stated that Mr AO was in fact the applicant’s youngest daughter’s father. 

37.	It was not in dispute that Mr AO had lived at the applicant’s evidence prior to August 2008.  It was submitted by the applicant that Mr AO was a long distance lorry driver who had no permanent address, and that he had stayed with his mother when he left her address.  In an interview with a compliance officer, the applicant had said that some of Mr AO’s belongings were still at her home, as he had nowhere else to move them to.  His post still arrived at the applicant’s home. No alternative address was suggested for Mr AO.  He was reported to visit his children at weekends at the applicant’s address when he returned from lorry driving trips. 

38.	It is clear that the tribunal gave consideration to the documentary evidence, and indeed the evidence of the paternity of the two children born since the applicant said that she and Mr AO had ceased to be a couple, but found that this was insufficiently probative to raise more than a possibility that the applicant and Mr AO were a couple living together as husband and wife.  On that evidence, it did not consider that the HMRC had established its case on a balance of probabilities. 

39.	However, the applicant’s previous solicitor had introduced a number of bank statements in evidence to the tribunal.  These revealed the information that the applicant and Mr AO held a joint bank account from April 2011 to April 2012 – the tax year that the tribunal was addressing. The tribunal asked the applicant about this.  The applicant’s representative indicated that she received financial support from Mr AO. The applicant said that Mr AO paid the mortgage and that she made cash payments to him.  The applicant said that Mr AO took the cash card for the joint account and gave it back to her if she needed to buy something for the children.  The LQM expressed some concern about this account and the tribunal briefly adjourned to enable the parties to discuss matters.  The applicant’s representative submitted that the fact of the applicant and Mr AO having a joint bank account was a case of inertia.  The applicant indicated that she had contacted the building society in 2010 to see if she could have Mr AO’s name taken off the mortgage but was told that she could not.

40.	The tribunal’s statement of reasons says that:

“the applicant’s oral evidence regarding the use of a debit card for a joint bank account was simply not believable. The tribunal was asked to accept that [Mr AO] controlled this bank account and released a card to [the applicant] for use for specific purposes.  An examination of the joint account bank statements shows the card being used at times by [the applicant] on an almost daily basis for various purposes.  The tribunal concludes on the balance of probabilities that [the applicant] had unrestricted use of his card.  Absent [the applicant’s] lack of credibility the tribunal would have been unable to conclude that the respondent had proved on the balance of probabilities that [the applicant] and [Mr AO] were living together as a couple during the relevant period.  The evidence would have amounted to no more than a possibility or grounds for suspicion that the parties were living together but no more than that.  The tribunal considered all the evidence as a [whole] including [the applicant’s] lack of credibility and concluded that on the balance of probabilities [the applicant] and [Mr AO] were living together as an unmarried couple at the relevant period”.  

41.	It appears clear from the statement of reasons that the tribunal placed most weight on the evidence of financial interdependence derived from the joint bank account statements from April 2011 to April 2012.  The applicant had advanced an explanation that Mr AO controlled the joint account and only gave her the debit card to make particular transactions for the benefit of the children.  The tribunal’s reading of the bank statements was that this account was simply not credible.  It rejected the applicant’s evidence, and by implication found that there was continuing financial support between the applicant and Mr AO. 

42.	Mr Friel submitted that the tribunal had reached an irrational decision, since the only evidence it had based the decision on was the applicant’s own oral evidence, which it had rejected.  He submitted that the statements of the joint bank account did not prove that the applicant and Mr AO were in a relationship after 2008. 

43.	It may be the case that the joint bank statements in isolation did not prove the existence of a relationship.  Nevertheless, they gave rise to an inference of financial interdependency between Mr AO and the applicant from 2011 to 2012.  The applicant’s oral evidence was addressed to explaining the financial evidence.  The tribunal stated that it was grounding its decision upon a rejection of the applicant’s credibility. However, despite what was articulated by the tribunal, it is clear that it was not solely deciding the appeal on the basis of the applicant’s oral evidence.  Rather, it was basing its decision on the bank statements and the inference of financial interdependency arising from them, which the applicant did not credibly rebut.  I do not accept the submission that the tribunal made an irrational decision on the evidence.  

44.	Mr Friel submitted that the tribunal failed to state the extent to which it had placed weight on particular pieces of evidence.  In this context, he submitted that it was impossible to discern why it had disallowed the appeal and had disregarded the clear evidence of the applicant that she was no longer in a relationship with Mr AO. 

45.	However, while rejecting the documentary evidence advanced by HMRC, it seems to me that the tribunal made clear that it placed little weight on that material in isolation.  It further placed little weight – in isolation - on the evidence that the applicant had given birth to two children in July 2009 and July 2013 whose father was Mr AO, when the relationship was said to have ended in August 2008.  However, in the context of the lack of credibility of the applicant on the financial arrangements, it is equally clear that the tribunal then relied on all of the evidence as a whole in reaching its decision.  I do not accept that the tribunal failed to explain the weight it gave to each piece of evidence.

46.	Mr Friel made the further submission that the tribunal considered that HMRC had not proved its case on the balance of probabilities on its own evidence.  He submitted that while it found that the applicant’s lack of credibility in her own evidence was sufficient to make a finding that she was in a relationship with Mr AO at the material time, it failed to particularise what statements it found incredible or what weight it attached to that evidence. 

47.	I consider that a tribunal does not have to explain its reasons for making a particular finding on credibility.  It has been expressed well by Mrs Commissioner Brown in C11/00-01(IB) where she said at paragraphs 6-8: 

6. ‘As regards the standard of reasoning to be adopted in cases of rejection of a claimant’s evidence that will of course be subject to the general rule that a decision must be comprehensible.  However, it may be worth calling to mind the view expressed by Henry L J in the case of Flannery v Halifax Estate Agencies Limited, (The Times (1999) March 4th ) as follows: 

“Where there is a straightforward factual dispute where resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate that he simply believes X rather than Y; indeed there may be nothing else to say.”

7. Where a Tribunal makes it quite clear that it does not believe evidence it is not obliged in every case to explain why it does not believe the evidence.  The Tribunal is required to give adequate reasons for its decision.  It is not required to give reasons for its reasons.

8. In this particular case the Tribunal has given its reasons for rejecting the claimant’s evidence i.e. that it did not believe the claimant.  While the claimant may understandably not like that reason it is nonetheless clear and is adequate in the circumstances of this case’.

48.	I consider that it is perfectly comprehensible why the tribunal has made the particular finding on credibility, namely that the evidence of use of the bank card shown the bank statements was not consistent with the oral evidence of the applicant. I reject this submission. 

49.	Mr Friel further submitted that the fact that the tribunal found that HMRC’s evidence was insufficient to discharge the burden of proof raised concerns regarding the initial request for information from the applicant – leading to a perverse decision.  Whatever the merits of this submission as regards the process of decision making by HMRC, I consider that the lawfulness of the tribunal’s decision was not affected by that.  The tribunal was an independent judicial body with responsibility for making its own decision on the evidence.  It was not in the role of reviewing the HMRC’s decision or processes.  The applicant’s former solicitor had advanced some 80 pages of bank statements and the applicant offered oral evidence.  Ultimately, the tribunal considered all the evidence and based its decision on it.  The question of whether HMRC should reasonably have sought information from the applicant in the first place is neither here nor there when considering whether the tribunal has acted lawfully.  I reject this submission. 

50.	Mr Friel further submitted that HMRC had failed to ask relevant questions or guide the applicant as to what evidence would meet its requirements, referring to AK v HMRC [2016] UKUT 98.  In that case, a claimant’s TC entitlement had been stopped on suspicion of living together as husband and wife on the basis of documentary evidence and a conversation about membership of her household.  However, the Upper Tribunal judge set aside the tribunal’s decision in that case because the tribunal had proceeded in the claimant’s absence in circumstances where she was late attending the hearing. 

51.	It seems to me that once a case has proceeded on appeal to a tribunal, the claimant has an opportunity to address any relevant questions.  Mr Friel submits that the failure of HMRC at first instance to ask relevant questions of the applicant led to an error of law.  However, I cannot see that this argument is sustainable, since the tribunal proceedings give rise to the opportunity to cure any defect on HMRC’s part.  The point of AK v HMRC was that the tribunal proceeded without the claimant’s involvement, and without enabling her to put her case properly, resulting in potential unfairness.  I see no unfairness arising from the facts of the present case.  I reject this submission, therefore.  

52.	I do not accept the submissions of Mr Friel.  It appears to me that the tribunal has addressed the relevant law and made findings in relation to the relevant “signposts”.  It placed weight on the evidence relating to financial support in particular when reaching its decision.  I consider that it has made reasonable findings of fact on the evidence before it.  I consider that it has followed a fair procedure. 

53.	I do not consider that it has erred in law on the grounds submitted or on any other grounds and it follows that I must disallow the appeal. 

(signed) O Stockman
Commissioner

25 April 2017