Case Law Analysis: Challenge to HMRC's Refusal to Extend Tax Credit Appeal Time Examines Judicial Review and Legislative Powers

Citation: [2024] EWCA Civ 16
Judgment on

Introduction

The case of The Commissioners for HMRC v Abubaker Arrbab [2024] EWCA Civ 16 presents a critical discourse on the legislative confines of a mandatory review process prior to an appeal and the jurisdiction of the First-tier Tribunal (FTT). Moreover, it dwells on the principles regarding exclusion of rights of appeal and the interpretation of Henry VIII powers, particularly in the context of tax credit decisions.

Key Facts

Abubaker Arrbab sought to appeal against HMRC’s refusal to extend the time for a review of a tax credit decision. The FTT struck out the appeal on the grounds of lacking jurisdiction. The Upper Tribunal (UT) construed the legislation as permitting an appeal despite HMRC’s refusal to extend time but was contentious with HMRC. Permission was granted to HMRC to appeal the UT decision, arguing the Judge erred in law.

The case unravels statutory interpretation, touching upon the entitlement of tax credits, the introduction of the review procedure by SI 2014/886, and the role and jurisdiction of HMRC and courts in dealing with appeals related to tax credit decisions. Notably, the review mechanism was introduced through subordinate legislation purportedly authorized by the enabling primary legislation, Section 124 of the Finance Act 2008.

The legal discussion in the case pivots around two main principles:

  1. Henry VIII Powers and Restrictive Interpretation: The Supreme Court has established that courts should adopt a restrictive approach when interpreting Henry VIII clauses, which permit subordinate legislation to amend primary legislation. The rationale being the paramountcy of Parliament’s supremacy over the Executive; judicial intervention is manifested in ensuring the Executive does not exceed its legally delegated powers.

  2. Right to Appeal: There is an inherent presumption against the exclusion of rights of appeal unless expressly or by necessary implication provided for by statute. Precisely, courts have maintained that access to judicial adjudication is deeply embedded in the rule of law and can only be restricted by clear statutory enactment.

These principles were considered against the backdrop of the 2014 Order that introduced the mandatory review procedure and effectively positioned HMRC as the gatekeeper for appeals to the FTT. The pivotal legal query was whether the provisions imposed by the 2014 Order, specifically s.38(1A) of the 2002 Act were intra vires of the enabling legislation s.124 Finance Act 2008.

Outcomes

The Court of Appeal concluded that:

  • There was an error of law in the UT’s decision which had allowed an appeal to the FTT where HMRC decided not to extend time for a review – this was on the construction issue.

  • S.38(1A) of the 2002 Act, inserted by the 2014 Order, was found to be ultra vires the enabling legislation, s.124 Finance Act 2008. This was because there was no clear indication that Parliament intended to remove or restrict the FTT’s jurisdiction to extend time for an appeal, leaving judicial review as the sole recourse against HMRC’s decision on time extension.

The rectitude of the 2014 Order’s aim was recognized, yet its method in modifying primary legislation was reprimanded, highlighting the necessity for a more explicit legislative mandate for such a significant procedural change. Despite the appeal being academic due to HMRC’s decision to repay the disputed amount to Mr. Arrbab, the Court chose to utilize its discretion to rule on the matter given its wider legal ramifications.

Conclusion

The Commissioners for HMRC v Abubaker Arrbab is a quintessential illustration of the judiciary’s safeguarding role in the separation of powers doctrine, affirming that exercise of statutory powers must reside strictly within the bounds set by Parliament. The case underscores the criticality of maintaining access to judicial processes while administering public law, respecting individuals’ rights to appeal administrative decisions. The Court has therefore reinforced a cautious approach when determining the scope of subordinate legislation, preserving the integrity of legislative processes and the fundamental right to appeal.

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