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TCA S18 decisions - burden of proof - case law?
Help - case law?
TCA s18 decision (in this case alleged living together). HMRC argue in submission that under s18 the burden of proof falls on the claimant (to show they were entitled to TC as a single claimant).
A tribunal ‘stands in the shoes’ of a decision maker. But what is the burden of proof placed on the DM or tribunal in a s18 decision. Is it neutral / irrelevant? Although the general principle of ‘on the balance of probabilities’ applies to s18 what is the starting point when looking at a s18 decision?
Does the tribunal’s inquisitorial function mean it looks at (searches out) all of the evidence even if the evidence gathered by HMRC prior to making the s18 decision was so limited / poor the tribunal is effectively doing the investigative work HMRC failed to do? In other words the tribunal goes well beyond the fact finding HMRC undertook and carries out an investigation to discover the fatcs HMRC could/should have done but failed to do (with any degree of competence) prior to making the s18 decision.
Or should the tribunal ‘stand in the shoes’ of the decision maker only to the extent of considering the evidence already gathered by HMRC (given that a tribunal can come to the opposite conclusion based on the same facts)? In other words is it (only) taking a fresh look at the evidence already gathered by HMRC?
Although this case concerns alleged L/T and therefore whether the claimant was entitled to TC for the tax year as a single claimant - the same question of principle must arise on other issues such as actual earnings / income, required working hrs, childcare costs etc.
There are many UT decision on the issue of ‘burden of proof’ on L/T decisions under s16 (and a few on s19) where the burden clearly falls on HMRC but I cannot find any that addresses the issue of burden of proof (and the extent to which a tribunal can / should seek out additional evidence) under s18.
See link below in case it throws up something, covers stuff by topic i.e. burden of proof?
Hi Andy. Believe me I have read them all (more than once - groan)! But none of them (in many earlier UT decisions it is unclear which section of TCA is at issue) are s18 decisions! There must be (?) some UT decisions that specifically consider burden of proof and s18 but I have yet to find one (that could be my incompetence of course - hence the request).
I think that CTC/5600/2014 may relate to s.18 - see paras 4-7?
I think that CTC/5600/2014 may relate to s.18 - see paras 4-7?
Unfortunately its about a s19 decision.
Hi Andy. Believe me I have read them all (more than once - groan)! But none of them (in many earlier UT decisions it is unclear which section of TCA is at issue) are s18 decisions! There must be (?) some UT decisions that specifically consider burden of proof and s18 but I have yet to find one (that could be my incompetence of course - hence the request).
I thought you would have read them already Peter! But on the off chance i thought i’d attach the link just in case!
generally the party that alleges something has to prove it. if that party satisfies the decider on the point, the other party can bring evidence to undermine that/contradict that/whatever. plenty of judgements confirming that.
i can’t see why it would be different in tribunal to anywhere else - in fact, it isn’t.
here HMRC say client was living together. client, presumably, says not. given HMRC’s general inability to produce valid/persuasive evidence/draw the correct inferences on that/fail to ask further relevant questions (a common failing in government in general) they may not get too far but all they have to show is a prima facie case based on facts and law.
client then shows why that was wrong, by way of his/her own evidence, whatever that might be. if client doesn’t turn up/doesn’t give/have evidence, client will be in difficulty subject to any oral argument that can be made regarding whatever evidence HMRC has.
i don’t see the difficulty, or why you need to trawl the case law for anything further.
With tax credit Living Together as Husband and Wife (LTAHAW) or as civil partners decisions, the decision maker has to look at a series of factors. This is similar to DWP administered benefits. The factors are set out at https://www.gov.uk/hmrc-internal-manuals/tax-credits-technical-manual/tctm09341.
When I have successfully challenged LTAHAW decisions, I generally refer to decision maker’s guidance such as this and deconstruct the often inadequate evidence presented by the appeal respondent. I have found the lack of evidence of the consideration of these factors is the best way to win the appeal.
The technical manual quoted above states “The weight and worth of each indicator will vary from relationship to relationship and an officer of HMRC should conclude their decision on the balance of evidence, based on all the facts”. In my opinion, the burden of proof lies with HMRC.
Often, there is little or no evidence that a decision maker has done this.