HMRC do not supply appeal bundle: can CTC appeal be decided in appellants favour? 

Hi,

Its entirely unsatisfactory that there has been no response to this appeal which, by the sounds of it, was filed over 4 months ago - although it is certainly not unheard of.

Unfortunately the procedure rules are not particularly helpful. They are drafted on the assumption that, as respondents in benefits cases are all efficient, well-resourced government departments, there would never be a case where the response wasn’t ready in an appropriate timescale.

The Tribunal’s only real sanction against a defaulting Respondent is under rule 8. That gives a route to a summary decision against the respondent but it is fairly arduous. The Tribunal would need to be persuaded to either (a) make a direction with the warning that a failure to comply will result in the respondent being barred from the proceedings or (b) make a finding that the respondent has unreasonably failed to co-operate with the Tribunal to such an extent that the case cannot be dealt with fairly and justly. If the respondent is barred in this way, the Tribunal can be asked to make a summary judgment under rule 8(8).

If you intend to follow that route, the simplest option would be to ask for a variation on the directions notice that “if no response is received within the deadline set, the Respondent is to be barred from participating in these proceedings”

However other options should be considered - e.g. if this is a case in which HMRC carries the burden of proof, you might just want to ask the Tribunal to list for hearing ASAP. In the circumstances, the Tribunal are likely to be fairly receptive to any ideas you have to progress the case rather than having it sit on a desk dragging up clearance times.

(as you say, the Jacobs book has some helpful notes and case references on these points in Chapter 12 - largely by reference to this case - http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4164)

Such good advice Elliot thank you.  And for offering to email over information (I have responded).

Am running a helpline today, but will make it a priority tomorrow to look into it more and respond to the tribunal asap.

Will get back to you in due course with an update.  Thanks again.

I would be inclined to ask for a direction barring HMRC from taking any further part in proceedings under Rule 8(7) of the Tribunal Procedures Regs:

This rule applies to a respondent as it applies to an appellant except that—

(a)

a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings;

They have not complied with a direction which would permit this under the terms of Reg 8.

Hi EC

You might also want to have a look at a very similar case 2014 UKUT 182 AAC Reported as [2014] AACR 37 http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=4193

This found although the tribunal may not be able to force HMRC to produce a submission, there are things it can do:

4. The respondent is put on notice that should it continue to fail to comply with the direction of 18/10/13, and/or fail to comply with the direction in paragraph 3 above:

a. The respondent may be barred from further participation in the appeal: Tribunal Procedure (First Tier Tribunal) (Social Entitlement Chamber) Rules 2008, rule 8(3), (7).

b. The Tribunal may, at the hearing, draw inferences adverse to the respondent;

c. The Tribunal may consider referring the matter to the Upper Tribunal under section 25 of the Tribunals Courts and Enforcement Act 2007 and rule 7 of the 2008 Rules; and/or

d. The Tribunal may refer the file to the Regional Tribunal Judge with an invitation for he [sic] to raise the matter administratively with the respondent’s senior officials or to take such other action as she sees fit.”

Mark

Got one of these at present for a DLA to PIP conversion. Unknown to me the initial 28 days was extended by 14 days with warning of referral to a DJ for non-receipt and listing directions. I was then informed when this was breached and a judge has directed that the case will be listed sometime after September (!) and that the appellant is given the opportunity to add in evidence. Directed that a PO must attend unless a sub made by the 30th of August. It was not. I’ve put in the obvious stuff. TS have sent numbered versions back and… just sitting and waiting now.

I’ve had a few of these- all HMRC appeals. I’ve tried some of the tactics suggested by Mark and Ellis. HMRC has, in all bar one of the cases, eventually revised the decision under appeal (which speaks volumes in my view). In the other case they did- finally- produce a (typically inadequate) response (the appeal succeeded).