Morning All

We have just posted an article on our website about the 50+ element and Carers Allowance: http://www.litrg.org.uk/news/index.cfm?id=479

If anyone has considered this issue, or has been successful in arguing that reg 18(9) can be stand-alone then we would be interested to hear from you.

For those who can't get enough of the TC legislation, there is an explanation of how we came to the conclusion and details of the response from HMRC.

Thanks

Victoria
LITRG
(victoriatodd28@yahoo.co.uk)

Hi Victoria

While there are situations where there is silence between limbs of regulations the word “and” should be read in where the usual construction should have the word “or” read in and vice versa, I don’t believe that this is one of them and I agree with your interpretation.

In CSTC/76/06 the commissioner, at paragraph 15, states ‘(s)o far as the ordinary grammatical construction is concerned, I agree with the submission on behalf of HMRC. Where one has a list, it is usually only necessary to insert “and” or “or” between the two last items on the list to make clear that the list is in the former instance cumulative or, in the latter, a set of alternatives. One may offer a child, for example, “vanilla, strawberry and chocolate ice cream” (in which case the normal inference is that all three ice cream flavours will be provided) or, on the contrary, “vanilla, chocolate or strawberry ice cream”, in which case the child is put to a choice’.

Regards
Paul

Yes, I remember being told this by the Legal Officer at CPAG, Stewart Wright, when I worked there. I can't remember the case now but we managed to successfully argue our case on the basis you describe Paul.

Thanks for the quote - I remembered reading that before but didn't have the case name.

At present HMRC are maintaining that 18(9) is not a stand-alone paragraph and this is the detail in their WTC2 and TC600 notes.

It would be great to have a case to take this forward with. Thanks again.

Victoria

no case, i'm fairly relieved to say, : ) but i wholly agree. para (5) is not a stand alone condition, and must be read in conjunction with para (4), and is therefore omitted from the 'choice' of conditions list in para (3). if para (9) were not a stand alone and must be read in conjunction with para (8), it too would be omitted from the list in para (3). draftperson's rules of symetry 101, i imagine.

simultaneously hilarious and frustrating is HMRC's authority for its interpretation of the legislation is grounded on its own guidance notes. it's taken me a long time to get HMRC, (initial training courses at the vatican?) but i don't think they get it (statutory entitlement) at all...could you ask if they have taken legal advice on their interpretation...the test case route could take some time...?