Appeals- Response writers- consider what information can be disclosed
Before you follow this guidance make sure:
- you have the correct user roles to follow this guidance. Use the B&C Roles and Access Catalogue. You can find this by going to the Benefits & Credits homepage, selecting ‘R’ on the B&C A-Z index, selecting ‘Roles and Access Process’, selecting ‘Roles & Access Catalogue’ from the Related links menu
- you have followed the guidance in TCM0014200.
Customers may have a right to appeal the department’s decisions at a tribunal.
At a tribunal the department must disclose certain information it holds relating to a case. This information may be about the person who is disputing the case, or it may be about a third party such as a spouse or partner.
Section 18 Commissioners for Revenue and Customs Act 2005 permits the department to disclose any information so long as it is for any of our functions. Assessing the right amount of tax credits to be paid is a function of HMRC, and therefore we are able to disclose information in commissioner’s hearings or tribunals. For further information follow the guidance in IDG40500.
Care must still be taken when considering information to include and subsequently disclose to the appellant, witnesses, third parties or additional respondents as part of the tribunal proceedings. Each case will need to be treated in its own right to establish if the disclosure meets the tests of necessity and proportionality in the Human Rights Act and the Data Protection Act.
Note: For further information on the Human Rights Act follow the guidance in IDG41050. For further information on the Data Protection Act follow the guidance in IDG41400.
On rare occasions after considering tests of ‘necessity and proportionality’ you may consider it would not be appropriate to disclose certain information to all interested parties. In these circumstances, all of the following considerations will apply:
- full disclosure of all the information and evidence would still need to be presented to the tribunal
- you would need to ask the tribunal for a direction on whether they uphold or overturn your request for non disclosure
- the tribunal under rule 14 of the “tribunal Procedure Rules” will make a decision on whether to uphold or overturn your request
- the direction of the tribunal on whether this information should be disclosed is legally binding and must be complied with.
You can also receive a direction from the tribunal services to provide additional information or documentation. On receiving such a request you must disclose the evidence in accordance with the tribunal’s direction, for further information on tribunal directions follow the guidance in IDG4000.
Note: A refusal or failure to comply with a tribunal direction could give rise to proceedings being brought against you for ‘contempt of court’. Where a direction to disclose is complied with, you must keep a full record of that disclosure.
For further guidance and assistance generally on confidentiality, contact Information Strategy (IDG90100 refers).
Note: When sending customer, staff or process data to another individual or team, make sure you follow the latest data security guidelines or contact the Data Guardian or Data Security Team for advice.
If you are preparing a submission for tribunal, go to Step 2.
If you have received a direction from the tribunal to provide information or evidence in support of an appeal, go toStep 6.
If you are preparing a supplementary response for tribunal, go to Step 2.
If you are dealing with an expired BF, go to Step 8.
Section 18 of the Commissioners Revenue and Customs Act 2005 (CRCA) allows you as an HMRC officer to disclose any information and evidence to the tribunal services for the purposes of an appeal against a tax credit decision provided that information is:
- the minimum required to deal with the appeal.
Note: For more detailed guidance on the Commissioners Revenue and Customs Act 2005 follow IDG40500.
Consider the information below to determine if the disclosure of the information would meet the test of ‘necessity and proportionality’.
Note: For more detailed information on ‘necessity and proportionality’ follow the guidance in IDG41050.
- in your judgement, the reason for disclosing information is sufficiently important to justify ‘infringing the right to privacy ’
- in your judgement, the information disclosed is no more than is needed to accomplish the objective - that is, the disclosure is proportionate to the purpose for which the information is disclosed
- in your judgement, the information to be disclosed is reasonable in relation to what it will be used for.
Note: For the majority of appeal cases the information and evidence contained within the appeals bundle will meet the test of ‘necessity and proportionality.’
For example: In disputed child responsibility cases, considering the points of necessity and proportionality above:
- all parties concerned with the appeal must be afforded the opportunity of seeing and rebutting the case and evidence being made. By requesting information is not disclosed would impinge on these rights. Therefore the disclosure is sufficiently important to justify ‘infringing the right of privacy’
- The TC656 is normally the evidence HMRC relies on when defending their decision on how we have established who the main carer is. Disclosing this evidence and any information we have used to decide who the main carer is would be no more than is needed to defend HMRC’s decision
- The appellant, witnesses or respondents must be allowed to put their case forward during the appeal hearing. It wouldn’t normally be appropriate for one party in the appeal to rely on evidence or information which has not been disclosed to all parties
- go to Step 4.
Care must be taken when considering what information should be disclosed and sent to appellants, witnesses, third parties and additional respondents as part of the tribunal proceedings. You will need to consider if:
- the evidence or information relates to the decision under which the appeal is based
- the evidence or information is featured in the process of making the decision under appeal
- the evidence or information is relied upon in challenging the decision under appeal
- failure to disclose this information could unfairly advantage any interested parties including HMRC
- then go to Step 5.
If you consider certain information or evidence should not be disclosed to all interested parties, go toStep 7.
If you consider all information or evidence can legally be disclosed to all interested parties, go to Step 6.
If you are unsure, discuss with your manager or contact information strategy for further advice
On receipt of a direction from the Tribunal to disclose information or evidence:
- treat the request as urgent
- inform your manager about the nature of the request
- prepare and send the documentation or evidence in accordance with the tribunal direction
- record the request and your actions and file within the case papers
- take no further action.
Note: A refusal or failure to comply with a tribunal direction could give rise to proceedings being brought for ‘contempt of court’. Where a direction to disclose is complied with, you must keep a full record of that disclosure.
If you consider certain information should not be disclosed, you will need to apply to the tribunal for a direction by taking the following action:
- complete the appeals summary sheet with your request for a direction stating why the information or evidence should be withheld
- complete the extra information box on the AT37 requesting the papers are laid before the Judge to request a direction on non disclosure
- follow normal procedures for forwarding the bundle to the tribunal and enclose the information or evidence you are requesting shouldn’t be disclosed
- do not prepare and send the bundles for the appellant and or the respondents until the direction has been returned from the tribunal
- set a clerical BF of six weeks to await the direction.
Note: Section 35 of the Data Protection Act gives HMRC lawful authority to disclose to all interested parties in the appeal. For this reason a request for direction for non disclosure should only be required in exceptional circumstances.
For example: There are concerns the evidence or information would allow the location of the appellant or the respondent to be identified and the disclosure of this information could lead to violence.
Contact the tribunal services and confirm if the request for direction has been laid before the judge.
If the request for non disclosure has not yet been heard
- set a further clerical BF of six weeks to await the direction.
If the request for non disclosure has been laid before the Judge
- request confirmation of the direction to be sent to you
- set a clerical BF of two weeks to await the direction.
Note: Some tribunal offices will issue the bundles to all interested parties without informing us. If you establish the tribunal have already issued the bundles you will need to make a note of this and file in the case papers.
Prepare and send the appeals bundles to the tribunal and all interested parties.
- send in accordance with local procedures
- BF the case papers to await the tribunal outcome
- Take no further action.