Advocates Library Parliament House Edinburgh EH1 1RF
Govanhill Law Centre provide specialist legal services to the nationals of the new accession countries to the EU, the A8 who joined in 2004 and the A2 who joined in 2007, who have settled in Glasgow. A8 and A2 nationals who work in the UK are entitled to working or child tax credits but many meet with institutional obstacles, as the Law Centre has documented in a December 2011 report.
Early last year, the Law Centre approached Hastie Stable Advocate Joe Bryce in connection with a particularly difficult case. One A8 national, a single mother from Slovakia, had had tax credit discontinued in 2010 with no reason given. The Law Centre had made a number of attempts to have payment reinstated but the difficulty was that HMRC, the government department that administers tax credits, never referred the case to the First tier Tribunal, even when the claimant appealed.
The problem was that, under section 39 of the Tax Credits Act 2002, Notice of Appeal against a tax credit decision had to be filed to the Commissioners themselves. That, on the face of it, left it open to the department who made the decision to simply sit on the file whenever a claimant appealed against it. Counsel recognised that the law had been significantly amended with effect from 1st April 2009. Section 49D of the Taxes Management Act 1970, as inserted into that Act on that date by the Transfer of Tribunal Functions and Revenue and Customs Appeals Order 2009, SI 2009 No. 56, had made it possible for appellants to write to the Tribunal to ask for the Tribunal to take over the appeal, once an appeal had been marked to the HMRC.
Acting on that advice, Govanhill Law Centre wrote to the Tribunal and the Tribunal sought the papers relating to the appeal from the HMRC. The Revenue were unable to respond and eventually a senior Tribunal Judge found that the failure to reply to the Tribunal was contemptuous and threatened to refer matters to the Upper Tribunal for a finding of contempt of court. That threat was sufficient to bring matters to a satisfactory conclusion. The claimant’s tax credits were reimbursed to her in full, and because there had been such a long period of non-payment the arrears amounted to £20,000.
The outcome of this case clearly is significant to the individual concerned and more widely to the client group with whom Govanhill Law Centre work. But it has a significance going beyond that. Section 49D of the 1970 Act, as brought into force since 2009, clearly provides a remedy for anyone facing delay in having any appeal to the HMRC transferred to the Tribunal. Equally significant is the fact that not only does the Tribunal have the power to assume jurisdiction over an appeal in such circumstances, it seems also that it is not afraid to use it.