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HMRC internal manual

Tax Credits Manual

From
HM Revenue & Customs
Updated
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Appeals stages: Appeals stage 7 - consideration of appeal to Upper Tribunal

Checklist

Before you follow this guidance make sure you

  • you follow the guidance in TCM0138020
  • have the correct user roles to follow this guidance

Background

On receipt of the Tribunal’s decision, the Response Writer may consider an appeal to the Social Security Upper Tribunal on a point of law. The Upper Tribunal are lawyers who are independent of HM Revenue & Customs (HMRC).

Guidance

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.

Step 1

Note: Where the Tribunal change the decision made by HMRC and the new decision is not one which was proposed by HMRC, HMRC will consider an appeal to the Upper Tribunal.

Whilst HMRC consider this

  • suspend the Tribunal’s decision indefinitely
  • update Household Notes with the message AD06 from TCM0156020 if you are dealing with a Direct Lodgement case, for how to do this use TCM1000001
  • update Household Notes with the message AD13 from TCM0156020 if you are dealing with a Direct Lodgement case, for how to do this use TCM1000001
  • update Household Notes with AW12 from TCM0156020 if you are dealing with an Appeals Legacy case, for how to do this use TCM1000001
  • update retained Household Notes with AW22 from TCM0156020 if you are dealing with an Appeals Legacy case, for how to do this use TCM1000001
  • send letter ‘TC SUSTERM6’ to the customer telling them that HMRC is considering making an appeal to the Upper Tribunal
  • request in writing a full statement of reasons for the decision from the Tribunal within one calendar month of the date on the decision notice

Note: The request for a full statement of reasons must be:

* made on HMRC letterhead paper to the Clerk to the Tribunal
* contain the appellant's details
* contain the date of the decision
* contain the Tribunal Service reference number
  • send the request to the appropriate Tribunal Service regional office
  • place the papers in BF for 1 month
  • go to .

Step 2

Note: Only the LAT or the customer can appeal to the Upper Tribunal. If the customer obtains leave to appeal to the Upper Tribunal, LAT will be notified direct from the Tribunal Service office. Details of the appeal and instructions will then be sent to TCO if appropriate by LAT.

Note: There are very strict time limits involved when considering an appeal to the Upper Tribunal. On receipt of the statement of reasons, the Response Writer will be given one month from the date it is posted by Tribunal Service to decide whether to apply for leave to appeal to the Upper Tribunal. Failure to observe the time limits could jeopardise the appeal to the Upper Tribunal.

On receipt of the full statement of reasons, pass a copy of the appeal papers, the letters and reasons for the decision to Benefits & Credits Legislative Advice Team (LAT) (This content has been withheld because of exemptions in the Freedom of Information Act 2000) for them to consider whether an appeal to the Upper Tribunal is appropriate.

Note: LAT must consider whether:

  • the provisions of the Act or Regulations have been misinterpreted
  • the tax credits have been awarded in circumstances, or for an item, not provided for or specifically excluded by the Act or Regulations
  • the decision is not supported by the evidence
  • the decision is such that no person acting judicially and properly instructed about the relevant law could have reached it
  • there has been a breach of natural justice
  • there are other errors of law, for example:
    • taking irrelevant evidence into account
    • ignoring relevant evidence
    • giving reasons for a decision which imply faulty reasoning.

Note: This list is not exhaustive.

If LAT are satisfied that the conditions of an appeal to the Upper Tribunal have been met, go to .

If LAT are not satisfied that the conditions of an appeal to the Upper Tribunal have been met, go to .

Note: Common reasons for not pursuing the appeal are:

  • no identifiable error in law
  • the error in law is easily resolved. For example, the only error is that the Tribunal’s statement contains insufficient findings in fact and reasoning
  • the amount of tax credits at risk as a result of the Tribunal’s decision is considerably less than the cost to the department of making the appeal to the Upper Tribunal
  • the Tribunal erred on a matter that is already well established in case law
  • there were fundamental errors in the response made by HMRC to Tribunal Service.

Step 3

Where LAT decide that an appeal to the Upper Tribunal is not required, the case will be returned to the Response Writer with an explanation why. The Response Writer must:

  • implement the Tribunal’s decision
  • remove the 3 month clerical BF
  • retain the Tribunal’s decision, LAT’s explanation and any other correspondence in the clerical BF for one month, or send to storage if there are local BF storage issues, for how to do this use TCM0074140
  • delete the Appeal’s note about suspension, for how to do this use TCM0152100.
  • ensure all the information included on the relevant screens is in accordance with the Tribunal’s decision, amending as necessary
    • use Function CAPTURE APPLICATION if the claim has been disallowed
    • or
    • use Function AMEND APPLICATION if the claim has been awarded
  • delete retained Household Note message  AD13 if you are dealing with a Direct Lodgement case
  • update Household Note with the message AW22 from TCM0156020 if you are dealing with an Appeals Legacy case, for how to do this use TCM1000001
  • send form TC622 to the customer to tell them that TCO is going to implement the Tribunal’s decision

Note: For cases where the decision has be made by Concentrix (The EFAC supplier), you must notify the EFAC Service Management Office (SMO) of the Tribunal’s decision.

  • take no further action.

Step 4

Note: Only LAT can make an application for leave to appeal to the Upper Tribunal. Other staff must not under any circumstances, progress their own appeal to the Upper Tribunal.

If LAT decide that an appeal to the Upper Tribunal is required

  • they will notify the Response Writer
  • the Response Writer must:
    • pass the case to the Settlement Officer
    • update Household Notes with text confirmed by LAT, for how to do this use TCM1000001
    • retain all the papers including the explanation from LAT, in the Commissioner’s BF.

Note: For cases where the decision has be made by Concentrix (The EFAC supplier), you must notify the EFAC Service Management Office (SMO) of the Tribunal’s decision.

Note: The file prepared by the Response Writer will be retained by LAT while the appeal action continues.

  • go to .

If LAT decide that an appeal to the Upper Tribunal is not required

  • take action as instructed by LAT
  • delete retained Household Note message AD13 if you are dealing with a Direct Lodgement case
  • update Household Note with the message AW22 from TCM0156020 if you are dealing with an Appeals Legacy case, for how to do this use TCM1000001
  • take no further action.

Step 5

Check the Upper Tribunal decision.

If the Tribunal have upheld the HMRC decision

  • send the correspondence to storage. Follow the guidance in TCM0074140.
  • take no further action.

If the Tribunal have revised the HMRC decision

  • implement the Tribunal’s decision
  • delete retained Household Note message AD13 if you are dealing with a Direct Lodgement case
  • update Household Note with the message AW22 from TCM0156020 if you are dealing with an Appeals Legacy case, for how to do this use TCM1000001
  • retain the Tribunal’s decision and any other correspondence in the clerical BF for 1 month or send to storage if there are local BF storage issues, for how to do this use TCM0074140
  • take no further action.

Note: For cases where the decision has be made by Concentrix (The EFAC supplier), you must notify the EFAC Service Management Office (SMO) of the Tribunal’s decision.