Tribunal hearing - Clnt appealed s16 decision of 10/03 to revise her award because of various changes of circumstances. The revised decision changed her award for 03/04 and generated an 'in year' overpayment. Clnt's appeal was to challenge the calculation of this revised award including the 'overpayment'. Of course practical issue was resulting 'in year' recovery meant severe drop in TC payts for remainder of year (Clnt has also appealed every subsequent revision of her award for 03/04!).

Tribunal decided that clnt did have a right of appeal against the s16 decision and that right included calculation (including consequent 'in year overpayment'). However, tribunal decided that that was of no practical benefit because the revision (and therefore tribunal decision) was provisional and subject to any further changes that might occur during 03/04.

Clnt has not received a final notice for 03/04 (presumably because IR are awaiting outcome of appeal before finalising). Tribunal adjourned and directed that IR issue a final notice so the calculation for the year can be appealed and then heard by same tribunal (who knows if IR will comply with this!).

Tribunal also concluded that IR have to prove the basis of their calculations and provide all relevant information (which I suspect, from submissions to date, they cannot do so as to meet the burden of proof to the satisfaction of a tribunal).

We agree with tribunal that there is no practical point in challenging a s16 decision (in this situation). The only practical point (in this situation) at which it is worth challenging the calculation of an award is at the end of the year.

This obviously has implications for how advisers deal with calculation (of overpayment) challenges/appeals and how long clnts will have to wait for a resolution (leaving aside how long it takes IR to provide a submission). In the mean time clnts are receivng reduced TC to recover o/p, possibly hardship payments which also have to be repaid, knock on affect on following tax year award etc etc.

The above is the likely approach of our local tribunals to this type of issue.

What is your experience?
What implications does this have for clnts/advisers re appeals? Should we recommend clnts appeal this type of decision made part way through a tax year or pursue other options?
Your opinions welcome!!

This tribunal decided nothing, they adjourned. As i understand it S.38 of the Act gives a claimant the right to appeal against s.16 decisions. Consequently at some point a tribunal will have to decide this appeal.

I can see that there may be an issue of workload management but are you suggesting that in this situation advisers act as IR gatekeepers and advise against appealing S.16 decisions?

Tribunals have no power to direct an IR decision maker to make a decision, let alone direct that a potential appeal against a not yet made decision be heard by it at some unspecified date and of course listing of appeals is still in the hands of TAS, not the IR.

Was it open to the tribunal in this case, given the failure to meet the burden of proof requirements to the satisfaction of a tribunal to determine there was no grounds to review the decision using S.16? and if so wouldn't that have meant that the previous decision would have become the opperative one?