Tax credits – power of First-tier Tribunal to admit late tax credits appeals
Tribunal procedure and practice – whether tribunal procedure rules may confer power to extend statutory time limit
On 29 March 2012 Her Majesty’s Revenue and Customs (HMRC) decided that the claimant was not entitled to tax credits as a single person because she was a member of a couple. On 21 January 2013 she appealed against that decision, having lived alone since her husband left her in November 2008. HMRC rejected her appeal as being outside the 30 day time limit for bringing an appeal under section 39(1) of the Tax Credits Act 2002 (TCA 2002), and referred it to the First-tier Tribunal (F-tT) which also decided that the appeal was out of time and that it had no power to extend the time limits: JI v Commissioners for Her Majesty’s Revenue and Customs (TC)  UKUT 199 (AAC) applied. In JI the Upper Tribunal had held that (a) rules cannot confer power to extend time in the absence of a specific enabling provision in primary legislation permitting it, and (b) that there was no such provision in the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007): Mucelli v Government of Albania  UKHL 2;  1 WLR 276 applied. The issues before the Upper Tribunal were whether a tribunal had power to extend the 30 day time limit set by section 39 of the TCA 2002 and whether, in principle, the rules of tribunal procedure were capable of providing for an extension of a time limit set by primary or other legislation.
Held, allowing the appeal, that:
paragraph 4 of Schedule 5 to the TCEA 2007 specifically authorised rules of the F-tT to make provision for time limits as respects initiating, or taking any step in, proceedings before the F-tT or the Upper Tribunal. Construing that power in the light of the TCEA 2007’s purpose, the panel concluded that it authorised: (i) provision setting time limits where legislation conferring a right of appeal was silent about time limits; (ii) provision connected to existing time limits so long as it did not provide for extension or shortening of the time limit; and (iii) provision for extension of time limits set in other enactments (paragraphs 78 to 91);
the ratio in Mucelli was simply that statutory authority for extending a time limit must exist and did not depart from existing authorities that rules are capable of providing for extensions of time: Reddy v The General Medical Council  EWCA Civ 310. Lord Neuberger’s main doubt was whether rules could shorten, rather than extend, a time limit (paragraphs 65 to 69);
many other rules assume they can provide for extensions of statutory time limits and the Tax Chamber Rules clearly did so (paragraphs 33 to 58);
properly construed, the F-tT’s power to extend time for complying with a rule extended to a time limit adopted in rules by reference. The wording used simply reflected the drafting style of the Tribunal Procedure Committee and did not exclude the power to extend time where a time limit was adopted by reference (paragraphs 93 to 103).
The panel set aside the decision of the F-tT and remitted the appeal to a differently constituted tribunal to be re-decided in accordance with its directions.