Since the previous thread was beginning to resemble something from an Andrex advert (I am referring to its length rather than anything else), I thought it would be appropriate to start a new one.

At the end of the last thread, reference was being made to the changes to the Claimant Compliance Manual. We can now see on the website the fruits of the policy changes made.

The index is here:

http://www.hmrc.gov.uk/manuals/ccmmanual/CCM15000.htm

.... and you will see at para 15605 what, in broad terms, the new policy is:

"Where an examination or enquiry is opened on or after 17 May 2007 and it establishes there was an undisclosed partner we will consider remitting all or part of the overpayment to reflect the true loss to the Exchequer. However, this can only be considered in cases where the claimant made a genuine error when they made their claim. It cannot be considered where a claimant was late in telling us about a change in their circumstances."

So they are pulling up the ladder to try to prevent anyone running arguments based on the inconsistency between the general HMRC approach and the Compliance approach.

The argument that COP 26 is invalid as being too rigid can still be run, and I've just drafted another set of judicial review proceedings which runs this point. I will let people know what happens - unfortunately, there is a delay issue which may cause a problem.

Add the disclaimer ....




DISCLAIMER: This post is a general comment on issues of interest to advisers. It is not intended to be relied upon as legal advice. Any person with an identical or similar problem should consult a solicitor or lay adviser with expertise in welfare rights law.

Tue 21-Aug-07 07:12 PM by Paul Stagg

The case referred to above has now settled.

I have also had another case in which HMRC's letter of response appears to accept that, at least where the overpayment decision was made prior to 17.5.07, recovery must be consistent with the old Compliance Manual approach even in a case which was not referred to the Compliance Team. There will still be lots of those cases in the system.


DISCLAIMER: This post is a general comment on issues of interest to advisers. It is not intended to be relied upon as legal advice. Any person with an identical or similar problem should consult a solicitor or lay adviser with expertise in welfare rights law.

I can't even get HMRC to respond to my letters regarding offset let alone settling them! It's so very frustrating and time consuming.

Every bit of progress on this scandal is music to my ears. : )

it is interesting that a pre- and post- manual revision split is indicated here...it implies that the HMRC manual is considered (by HMRC) to be the 'authority' as to what is reasonable...

the revision followed an _internal_ review, and HMRC's recovery policy is almost entirely self - referential...

the distinction between a 'true loss' to public funds, and 'technically' created overpayments, which, to me is the significant issue, remains in black and white (and it's significance would remain even if the words were excised entirely!), and the 17/5/07 policy change seems to demonstrate that HMRC is fully aware, but choosing to wilfully ignore it...to my mind, this is worse! (and the concession in the re-write is as good as useless, when the problem here is change of circs...)

on a recent CPAG course, it was suggested that the justification for the 'rigidifying' of the policy following the internal review, boiled down to a 'punitive' role for 'overpayment' recovery, as part of an 'education process'...which sounds like power gone mad, to me <grin>... i haven't yet managed so far to track down the official version, though what i've heard certainly chimes...

meanwhile, like bensup, my cases mostly disappear into a black hole...

Thu 06-Sep-07 06:43 PM by Paul Stagg

And the second case referred to above has now also been settled prior to issue.

I suggest that if an initial request to the Tax Credits Office for non-recovery is rejected, then a second letter should be sent which complies with the pre-action protocol for judicial review.

The pre-action protocol can be accessed here:

http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_jrv.htm#protannex-1

The letter must be sent to BOTH the Tax Credits Office and the HMRC Solicitors. Usually, the intervention of the latter is what causes something to be done in these cases.

If they don't reply within the time allowed, if you have no solicitor or LSC Funding facilities within your organisation, you should be prepared to pass the claimant to a solicitor to enable judicial review proceedings to be commenced.

Always remember that judicial review proceedings must usually be started promptly and in any event within three months of the decision of the TCO upholding recovery.

My experience suggests that either when the protocol letter is sent or proceedings are issued, HMRC settles the cases. If that course isn't taken, they aren't settled.


DISCLAIMER: This post is a general comment on issues of interest to advisers. It is not intended to be relied upon as legal advice. Any person with an identical or similar problem should consult a solicitor or lay adviser with expertise in welfare rights law.

This is extremely helpful. Does anyone have the address for HMRC's solicitors? Thanks - Matthew

Mon 17-Sep-07 03:43 PM by Paul Stagg

Some of them work in Somerset House and some of them at 100 Parliament Square.

On the basis that the HMRC site gives Somerset House, I would send your correspondence there if you aren't already in correspondence with a solicitor at 100 Parliament Square.

http://www.hmrc.gov.uk/solicitors/index.htm

HMRC Solicitor’s Office
Somerset House
Strand
London
WC2 1LB