Anyone know whether there has been any challenge to rigid adherence to COP 26 on fettering discretion grounds?

If so, what happened?

Don't know of any caselaw to date, but I've just instructed Counsel on this point and the compliance manual issue discussed in this thread:

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=104&topic_id=1941&mesg_id=1941&page=

Any developments Keith? The case I'm involved in might be getting close to the point where we need to consider JR too.

Should add that the client knows she cannot satisfy the requirement to show that the payments in question were HMRC mistakes and that she reasonably thought they were correct. Her application for write-off was on the grounds that

1. repayment would cause hardship to her and her family
2. a large part of the overpayment is a technical one caused by her estranged ex-partner's failure to return his annual review forms in 2005 - so everything paid under their former joint claim becomes an overpayment
3. the ex-partner is better placed to repay than she is (she is on IS and CTC - he works)

Rejection of the write-off application simply said that the payments were not HMRC mistakes, and the repayment demand stands.

I was instructed by Keith in his case and HMRC settled it, at the pre-permission stage, by indicating that recovery of the overpayment would not be sought.

I am currently instructed in another case in which I have just drafted the pre-action protocol letter.

The basic arguments that can be raised here are as follows:

- if HMRC truly treats claimants differently according to whether or not the case has been referred to Compliance Officers or not, that is a failure to treat like cases in a similar way which is unlawful.

- alternatively, if HMRC treats COP26 as binding, it is an unlawful fetter on their discretion conferred by s28(1) TCA 2002.

- it is simply irrational to enforce recovery where a claimant would have been entitled to the same amount of tax credits had the change of circumstances re acquiring/losing partner been notified at the relevant time.

I will keep people posted on the progress of the new case, but I suspect that any cases that get as far as the HMRC solicitor will be settled promptly.


DISCLAIMER: This post is intended as a general contribution to the subject-matter under discussion. It is not intended to be relied upon as legal advice. Any person with a similar or identical problem should seek advice from a welfare rights adviser or a lawyer specialising in welfare rights law.

Mon 02-Apr-07 06:32 PM by Paul Stagg

deleted, double post