× Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

refusal to revise 2 years after decision? appealable?

benefitsadviser
forum member

Sunderland West Advice Project

Send message

Total Posts: 1001

Joined: 22 June 2010

i have had a client referred to me that is out of time to appeal via usual methods, as date of decision was 2-3 years ago

it is a tax credit overpayment, and she is saying the op was caused by official error

In Tax credits a decision can be revised up to 5 years , as long as its official error

im obviously going to try that route, however i reckon HMRC will refuse to revise

is the refusal to revise an appealable decision or is that the end of the road?

thanks guys and gals

Stainsby
forum member

Welfare rights adviser - Plumstead Community Law Centre

Send message

Total Posts: 607

Joined: 17 June 2010

All tax credit overpayments are recoverable just as with UC so the notion that the overpayments arose through official error is a non starter

Having said that I have a case before the Tribunal at the moment where I am arguing that the decision to terminate entitlement to child tax credit was an official error because the decision maker had ignored Regulation 5(7) Child Tax Credit Regulations 2002 which provides:

In determining whether a person is undertaking a course of full-time education or approved training, there shall be disregarded any interruption— (a) for a period of up to 6 months, whether beginning before or after the person concerned attains age 16, to the extent that it is reasonable in the opinion of the Board to do so; and (b) for any period due to illness or disability of the mind or body of the person concerned provided that it is reasonable in the opinion of the Board to do so.]

The Tribunal is considering its jurisdiction as a preliminary issue and has asked HMRC for submissions

Mark Willis
forum member

Welfare rights worker - CPAG in Scotland

Send message

Total Posts: 142

Joined: 17 June 2010

Hi benefitsadviser

As Stainsby says, the starting point for any route to a tribunal would have to be an argument that she was not overpaid - ie the decision that ended her entitlement was incorrect by reason of official error, so she was in fact correctly entitled to the amount which HMRC have decided was an overpayment (or part of it). This could be argued for example in single claims with overpayments due to alleged undisclosed partner.
So if a revision is requested under TCA s21 on grounds that the entitlement decision was wrong by reason of official error, this can be done within 5 years. If that is refused, then there is an argument that there is a right of appeal:  2013 UKUT 199 AAC https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=3788 para 50 “It is clearly arguable that a refusal to revise a decision because it is considered that there is no official error is a decision “under” the Regulations in respect of which there is a right of appeal under section 38.” (other parts of that decision have been overtaken by subsequent caselaw but that bit is still arguable).
Mark

Charles
forum member

Accountant, Haffner Hoff Ltd, Manchester

Send message

Total Posts: 1402

Joined: 27 February 2019

Mark Willis - 30 May 2023 03:19 PM

Hi benefitsadviser

As Stainsby says, the starting point for any route to a tribunal would have to be an argument that she was not overpaid - ie the decision that ended her entitlement was incorrect by reason of official error, so she was in fact correctly entitled to the amount which HMRC have decided was an overpayment (or part of it). This could be argued for example in single claims with overpayments due to alleged undisclosed partner.
So if a revision is requested under TCA s21 on grounds that the entitlement decision was wrong by reason of official error, this can be done within 5 years. If that is refused, then there is an argument that there is a right of appeal:  2013 UKUT 199 AAC https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=3788 para 50 “It is clearly arguable that a refusal to revise a decision because it is considered that there is no official error is a decision “under” the Regulations in respect of which there is a right of appeal under section 38.” (other parts of that decision have been overtaken by subsequent caselaw but that bit is still arguable).
Mark

Just to add to this: we won a case recently at the FTT based on this argument, and HMRC paid out.