Appeal struck out- what can we do?

Hi Sarah

I found this and it might be helpful. Worth a try.

Peter

Thank you for that. It’s not looking great for my lady!

The law has been changed since JI vs HMRC, and Judge Rowland madea further decision following that change - see http://www.osscsc.gov.uk/Aspx/view.aspx?id=4432

This doesn’t necessarily help as the circumstances may well be different here

When was the tax credit MR decision notified, and when was the appeal lodged?

First I would say that once a first-tier Judge had accepted the appeal as late, if HMRC did not like that decision they should have appealed it to the UT - you can do this.

So that should have been that, surely? I don’t see what power the second Judge had to refer it back to the first Judge for a second bite….

Second, it is procedurally quite wrong to invite representations on a proposed strike out and strike it out on the same day without receiving the representations.- its Rule8 (4) - and you can appeal that in the same way i.e. seek leave to appeal to the first-tier within one month. As part of that application I would raise the issue of the second Judge referring it back to the first Judge, and question what power the Tribunal had to do that under the procedure rules? (subject to what anyone else thinks?).

Finally, assuming your client has a decent prospect of success, CPAG advised me on potentially challenging a refusal to admit an out of time tax credits appeal - this is an appealable decision on its own. You request leave to appeal from the first-tier Tribunal in the normal way and you do not need an SOR. first. I did not take this further as I thought in my case that the ultimate prospects of success were quite weak Also any such challenge will go all the way so you need to consider who is going to argue this before the UT as it would have far reaching implications for all late tax credit appeals.

I will post the submission separately as its too big for one post!

CPAG submission on seeking leave to appeal to first-tier Tribunal against refusal to admit late tax credits appeal.

Just to be clear- I think this argument is wrong in as much as it says that JI is not binding on the issue- closer reading suggests that it is.  Sorry- I need to put an amendment on our webpage making this clear….

Please also see Mike Spencer’s (much better…) additional arguments as to why JI is wrong here:

http://www.cpag.org.uk/content/still-better-late-never

Please also note that practically if the FTT strike out an appeal on grounds of lack of jurisdiction:

1. They should not do this unless they have first given you an opportunity to comment.

2. There is a right of appeal to the UT on this issue.

3. It may be the case that you don’t have a right to request a statement of reasons in such cases as arguably the proceedings have not begun and such a right only applies to a decision bringing proceedings to an end.

CPAG are interested in testcases on this area- see the email address here: http://www.cpag.org.uk/test-case-referrals

Martin