when is an hmrc decision not a decision?

Client received an amended tax credit award notice in October 2012 thanking her for notifying of a change of circs and stating that “if nothing else changes before 5/4/13 you will be overpaid for this award period.£879.76. We intend to collect this from future awards by reducing your payments under s29(4) TCA”

Nothing else changed and client had a DRO made April 18 2013 which included the overpaid £879.76

HMRC have refused to accept overpayment is included in the DRO as they say that a final decision had not been made.

As the amended award notice included the appeal rights, amount of overpaid benefit and method of recovery we feel that this is therefore a decision.
Can anyone give me caselaw to support this view - or indeed to shoot it down in flames

The trouble is that HMRC had only given notice of their intention to recover, depending on what happens. I suspect you’d have been on firmer ground with a bankruptcy, where contingent liabilities are provable, as opposed to the DRO regime where a qualifying debt must be “a liquidated sum payable either immediately or at some certain future time”.

See R (Steele) vs Birmingham, and the OR’s manual, 40.102A - E for the background to the bankruptcy situation. But I’d be running this past SSU (debt).

Thank you for this, we are intending to argue that it is a qualifying debt and that although contingent on nothing changing before a certain date, nothing did change and the amount of the debt in the amended decision did not change. Fingers crossed