“22 (1) If P is present in the UK at the end of a day, that day counts as a day spent by P in the UK. (2) But it does not do so in the following two cases. (3) The first case is where— (a) P only arrives in the UK as a passenger on that day, (b) P leaves the UK the next day, and (c) between arrival and departure, P does not engage in activities that are to a substantial extent unrelated to P’s passage through the UK. (4) The second case is where— (a) P would not be present in the UK at the end of that day but for exceptional circumstances beyond P’s control that prevent P from leaving the UK, and (b) P intends to leave the UK as soon as those circumstances permit. (5) Examples of circumstances that may be “exceptional” are— (a) national or local emergencies such as war, civil unrest or natural disasters, and (b) a sudden or life-threatening illness or injury. (6) For a tax year— (a) the maximum number of days to which sub-paragraph (2) may apply in reliance on sub-paragraph (4) is limited to 60, and (b) accordingly, once the number of days within sub-paragraph (4) reaches 60 (counting forward from the start of the tax year), any subsequent days within that sub-paragraph, whether involving the same or different exceptional circumstances, will count as days spent by P in the UK.” (a) P only arrives in the UK as a passenger on that day, (b) P leaves the UK the next day, and (c) between arrival and departure, P does not engage in activities that are to a substantial extent unrelated to P’s passage through the UK. (a) P would not be present in the UK at the end of that day but for exceptional circumstances beyond P’s control that prevent P from leaving the UK, and (b) P intends to leave the UK as soon as those circumstances permit. (a) national or local emergencies such as war, civil unrest or natural disasters, and (b) a sudden or life-threatening illness or injury. (a) the maximum number of days to which sub-paragraph (2) may apply in reliance on sub-paragraph (4) is limited to 60, and (b) accordingly, once the number of days within sub-paragraph (4) reaches 60 (counting forward from the start of the tax year), any subsequent days within that sub-paragraph, whether involving the same or different exceptional circumstances, will count as days spent by P in the UK.”
“181. It is clear that the Appellant was under no legal obligation to care for her twin sister’s minor children. As we have concluded earlier, however, we do not consider it necessary for there to be a legal obligation in order for there to be an exceptional circumstance or one which prevents a taxpayer leaving the UK. Moral obligations and obligations of conscience – including those arising by virtue of a close family relationship – can qualify as exceptional circumstances and those obligations may be strong enough to prevent a taxpayer leaving the UK. 182. In our view, the combination of the need for the Appellant to care for her twin sister and, particularly, for her minor children at a time of crisis caused by the twin sister’s alcoholism does constitute exceptional circumstances for the purposes of paragraph 22(4). 183. As we have already observed, there were a number of flaws in the Appellant’s evidence. For example, we did not find her evidence concerning the twin sister’s threats to commit suicide credible. In addition, we were not convinced by her claim that she and her husband only discovered the extent of her twin sister’s alcoholism when the twin sister was admitted to The Priory in April 2016 for the reasons put to her in cross-examination (summarised above at paragraph 84 above). We have also commented that in a number of respects the Appellant’s evidence was vague in relation to details. Nonetheless, we do consider her evidence concerning the state of affairs which she found upon her arrival at her twin sister’s house in December 2015 and February 2016 convincing. 184. The Appellant’s evidence, which we accept, was that when she arrived at the twin sister’s house in December 2015 and February 2016, she found a dysfunctional household in which her twin sister was drunk and incapable of caring for herself or her children. When the taxpayer arrived at her twin sister’s house, she found both her sister and her children were unkempt and in need of care. The house was filthy. There was nobody else who could provide the care needed. We do not think that it was realistic to expect the twin sister’s two friends to devote the kind of care and attention which the children and the twin sister plainly needed. The role of the twin sister’s friends was described as one of checking up on the twin sister several times a day. We do not consider that there was any evidence that their role extended beyond that or embraced the more hands-on care which the Appellant gave to her twin sister and her minor children. 185. We think it more probable than not that, when coming to the UK in December 2015 and February 2016, the Appellant did not appreciate the seriousness of the situation (i.e. the extent to which the twin sister was no longer able to cope with running her household and looking after her children), until she actually arrived. Although she was aware that her twin sister was an alcoholic, she did not appreciate the extent to which her twin sister was incapable of coping with the running of the household and the care of her minor children. The immediate need to seek to establish a stable household in which the minor children could be cared for does seem to us to be an exceptional circumstance outside the Appellant’s control. We accept that the Appellant would not have been in the UK at the end of each day relevant to this appeal but for the fact that she needed to care for both her twin sister and her minor children. We further accept that this need prevented the Appellant from leaving the UK until such time as she had stabilised the situation and that she intended to leave the UK as soon as possible once those circumstances permitted. 186. In that context, we accept that the Appellant could not remember in any detail what she was doing on each day that she was present in the UK. Her evidence was that she spent her time keeping her sister occupied and looking after the children. We accept her evidence and do not consider that an itemised timeline for each day, as was suggested by HMRC, was necessary. Instead, we accept Mr Kessler QC’s submission that if the reason for the Appellant remaining in the UK was the same each day and if that reason constituted exceptional circumstances, then that reason remained valid for each relevant day. 187. The Appellant accepted in cross-examination that, contrary to her witness statement, she had not researched obtaining private care, nursing care or assistance for someone with alcoholism. However, the Appellant’s evidence was that she believed that she was the only person from whom her twin sister would accept help and guidance. We accept that evidence, which was based on the exceptionally close relationship between the twin sisters. We also anticipate that there may have been significant practical difficulties in obtaining outside household help in circumstances where the twin sister was an alcoholic with periods when she was non-functioning. In that respect, we consider that the circumstances were beyond the Appellant’s control.”
“(4) The second case is where— (a) P would not be present in the UK at the end of that day but for exceptional circumstances beyond P’s control that prevent P from leaving the UK, and (b) P intends to leave the UK as soon as those circumstances permit.” (a) P would not be present in the UK at the end of that day but for exceptional circumstances beyond P’s control that prevent P from leaving the UK, and (b) P intends to leave the UK as soon as those circumstances permit.”
“It could hardly have been Parliament’s intention to have required the “exceptional circumstances” test to be failed if, for example, a taxpayer thought it necessary to be present because of serious illness or at the death bed of a close relative. The word “prevent” can encompass all manner of inhibitions – physical, moral, conscientious or legal – which cause a taxpayer to remain in the UK. To read in the restriction that HMRC suggests, is not an exercise in statutory interpretation (purposive or otherwise) but rather an exercise in reading words into a statute which are not there.”
“This is to reverse the statutory test. It is not correct to say that (a) because a person genuinely thinks it necessary to be in the UK because a relative is ill or dying, then (b) exceptional circumstances exist. Serious illness and death are, themselves, not “exceptional”; the former is commonplace and the latter universal. It is also not “out of the ordinary course, or unusual, or special, or uncommon” for a person to have a sense of moral obligation towards a relative in that position. Objectively commonplace circumstances, such as serious illness, cannot be converted into exceptional circumstances by adding a moral obligation.”
“Any days spent in the UK because of exceptional circumstances beyond your control, for example the illness of yourself or a member of your immediate family, are not normally counted for this purpose.”
“Any days that you spend in the UK because of exceptional circumstances beyond your control, for example an illness which prevents you from travelling, are not normally counted for this purpose.”
“In this passage, the FTT went further than in §150, holding that moral obligations taken alone can constitute exceptional circumstances, irrespective of any other objectively assessed facts. However, moral obligations are not themselves exceptional circumstances; they are shaped by society and the subjective feelings of an individual. Where a person feels a moral obligation towards (say) a relative whose circumstances are exceptional, the moral obligation does not form part of those circumstances. Accordingly, the person is not prevented by exceptional circumstances from leaving the UK; he is instead prevented by his sense of moral obligation.”
“We disagree. Whether or not the circumstances were “exceptional” is a mixed question of fact and law. This Tribunal cannot interfere with the findings of fact made by the FTT unless there was no evidence to that effect. However, whether one or more findings of fact mean that the Taxpayer’s circumstances were “exceptional” is a question of law.”
“The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is. But here there is in my opinion no question of the word “insulting” being used in any unusual sense. It appears to me, for reasons which I shall give later, to be intended to have its ordinary meaning. It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of the English language cover or apply to the facts which have been proved. If it is alleged that the tribunal has reached a wrong decision then there can be a question of law but only of a limited character. The question would normally be whether their decision was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.”
“We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance that is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
“it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal.”
“I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination.”
“The Upper Tribunal did not read this guidance [that is what was said by Lord Carnwath in Jones and Pendragon] as an indication that “the Upper Tribunal has some special exemption from the restrictions to which Lewison LJ referred”, a comment with which I respectfully agree.”
“Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also the evaluation of those facts and to inferences to be drawn from them.”
“We consider that, to the extent that the Appellant’s visits to the UK in December 2015 and February 2016 were occasioned by the need to care for the consequences of her twin sister’s alcoholism and depression, this does not, of itself, constitute exceptional circumstances for the purposes of paragraph 22(4). Alcoholism and depression are not in themselves uncommon or unusual illnesses. It is true that both conditions cause much suffering and distress both for the individual concerned and for that individual’s family. We do not, however, consider that they are exceptional circumstances.”
“We have also considered whether the fact that the twin sister had minor children, for whom the Appellant also cared, alters the position. We consider this a more difficult and finely balanced question, but in our view it does change the position.”
“The only evidence before the FTT about the reason why the Taxpayer considered she was unable to leave before20 December 2015 was that “it took her three days to reach a point where she was satisfied that her twin sister was no longer at risk of taking her own life and that was the first opportunity that she could return to Dublin”
“Given the lack of evidence, the FTT was unable to make findings of fact on a day-by-day basis that “the circumstances prevented the Taxpayer from leaving the UK” on each of 15, 16, 17 and/or18 February 2016 . The failure to make findings of fact sufficient to support their conclusion was a further error of law.”