Withdrawal of fundamental rights of appeal by Government unlawful 

The full judgment is available here

Mr Arrbab (and many other recipients of Tax Credits) will be able to appeal adverse decisions made by the HMRC, despite attempts by the Government to curtail his right to do so. The Court of Appeal has found changes made to the Tax Credits Act 2002 ultra vires the enabling act, the Finance Act 2008. The changes purported to make the right to a full merits appeal to a Tribunal conditional upon the applicant first applying for a mandatory reconsideration by the HMRC. The nub lay in the fact that the HRMC was free to refuse to carry out a reconsideration if the request was late and there was no good reason for the failure to apply in time. This made the HMRC the de facto gatekeeper to the Tribunal. 

Mr Arrbab was late to apply for a reconsideration because of il-health and language problems. HMRC refused to extend time. Mr Arrbab appealed but in accordance with the amended legislation, the Tribunal decided that it had no jurisdiction to hear his appeal. He successfully persuaded the Upper Tribunal that the changes were unlawful and the HMRC appealed to the Court of Appeal. Mr Arrbab decided not to defend the UT’s decision but raised a new argument about the vires of the amendments. The Court of Appeal (Baker, Snowden and Falk LJ) accepted these arguments. In her judgement, Falk LJ said “While I understand HMRC's argument that [the amendment] simply regulates the exercise of a right of appeal rather than excluding it as in Saleem, I cannot accept it. In substance and in reality, the effect …. is to remove a right of appeal where time is not extended by HMRC...”

Mr Arrbab was represented by Jamie Burton KC, leading Desmond Rutledge and Ollie Persey from Garden Court Chambers. They were instructed by Joe Power from Kirklees Law Centre.