Baird, R (on the application of) v The Tribunals Service [2010] EWHC 1257 (Admin)

Case No CO/6608/2008[2010] EWHC 1257 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 10th May 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF IAN EDWARD BAIRDClaimantv
Between
THE TRIBUNALS SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Woolf (instructed by Mr Baird) appeared for ClaimantMiss S Moore (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T

MR JUSTICE CRANSTON: Introduction

[2]The claimant, Mr Baird, was a clerk to the General Commissioners of Income Tax until the end of 2007. He has been refused a pension under section 3(3) of the Taxes Management Act 1970, on the basis that the Minister was not satisfied that, to use the statutory phrase, he had devoted substantially the whole of his time to the duties of his office. The issue before me in this judicial review is whether that decision, that Mr Baird was not a full-time clerk, was perverse or otherwise unlawful. The claimant and his claim[3]Mr Baird is a solicitor, an associate of the Institute of Taxation both here and in Ireland, and a notary public. He was a clerk to the General Commissioners of Income Tax between July 1966 and 31st December 2007. He was initially appointed clerk for the division of New Forest and Poole but was subsequently made clerk for the divisions of Wimborne, New Forest East, and Blanford and Wareham. Following amalgamations in early 2007 these became one division, ultimately known as the Wessex Division.[4]On his retirement Mr Baird requested that the defendant pay him a pension. On 18th April 2008 Mr Jordine, a policy officer at the Tribunal Service, wrote that the Minister had refused his request. Having seen the evidence, the Minister had concluded that Mr Baird had not satisfied the statutory test because he could not be classed as full time. On the department's calculation Mr Baird's work equated to less than two-and-a-half days per week. Mr Jordine subsequently acknowledged that the figures in 18th April 2008 letter were inaccurate but that would not have affected the overall conclusion.[5]On 5th June 2008 Mr Baird met Mr Jordine and another official, Mr Pearson. There is an agreed note of that meeting prepared by Mr Jordine, which Mr Baird has amended. It records that Mr Baird would like the decision to be reconsidered on the basis of further information supplied at that meeting and recorded within the note. The note sets out that there was a discussion of the setting up fee for Commissoners' meeting. It was recorded that all other work was deemed to be included in the multiplier of two mentioned in the letter and explained shortly. Mr Baird contended that the multiplier of two was only what the Treasury was willing to pay and had no bearing on the actual work done.[6]According to the note Mr Baird then went through examples of work not taken into account by the multiplier but which were, in his view, fundamental to the role of clerk. First, there was sending out the summons for meetings. The General Commissioners wished a letter to be sent with each summons, advising the appellant to attend because of the limited information on the appellant's appeal file. It had become apparent that HM Revenue & Customs did not address the points raised by appellants and only sent a standard letter. With cases of a contentious nature, computer lists were not accepted by the General Commissioners. Mr Baird liaised with the tax inspectors and obtained copies of all papers necessary to draft and serve the necessary summons. This process of liaison settled many preliminary problems and errors, ensuring that the summons, when served, contained the correct detail. On average the summons for each meeting, including those for a penalty and surcharge, took an hour to prepare and dispatch.[7]Secondly, the note records that there was a discussion about meetings of the Commissioners and the issue of their decisions. In penalty and surcharge cases, each appellant had to be sent an individual letter, stating why the General Commissioners had made the decision that they had, since both sides might wish to appeal. In all the contentious cases, apart from open and shut cases, Mr Baird said that the General Commissioners had directed that a detailed decision be sent.[8]As to travelling time Mr Baird said, according to the note of the meeting, that it should be included for pension purposes on the basis that it was time involved in performing the role of clerk. Time taken to travel was part of the remuneration calculation for fees. Mr Baird accepted that travelling from home to the meeting would be no different from any other employee travelling to their place of work, but he was travelling from the General Commissioner's office to a meeting rather than from home to a meeting.[9]Under the heading "General", the note records that Mr Baird said that the multiplier did not recognise other work that clerks have to complete. Thus, expense claims for the General Commissioners had to be checked against diary and meeting record forms, to ensure that they were correct before being submitted.[10]The note then records that there was discussion about collection of the post. The post at times had been delivered as late as 4 o'clock in the afternoon and it was never delivered before Mr Baird left for a hearing. Because of that there had been arrangements for him to have a box at the sorting office, which meant that the mail was available about 7.30 am. Mr Baird was thus able to have correspondence for hearings. It took about 40 minutes to collect the post, return, open and sort it. Sometimes if there was an early start, it could not be collected that day. Although he collected it on Saturday mornings, he suggested that, a five day week be used over 42 weeks for calculation purposes.[11]At the meeting Mr Baird also suggested that it was virtually impossible to do any other job in addition to the clerking because of the conflict of interest, he knowing the parties professionally in many cases. He had done some consultancy work in the past, but this came to an end in 1980. During busy periods with the General Commissioners he might not be available for several weeks in the year.[12]In all Mr Baird's suggested calculation, recorded in the note, was as follows: Time on appeal meetings agreed for meeting record forms and three special cases, 575 hours. Set up time, 45 hours. Time on non payable cancelled meetings, 1 hour. Time to issue summons for 81 hearings and 11 cancelled meetings, 92 hours. Balance of time for producing decisions, 81 x 2 hours, equal to 162 hours. Travel time, 97 hours. Time for completing statistics and returns, 35 hours. Time for collecting post, other than on the way to appeal meetings, 140 hours. That gave a total of 1147 hours which, on the basis of a working year of 45 weeks with a 7-hour day, resulted in an average working week of 3.64 days.[13]Subsequent to that 5th June 2008 meeting, Mr Jordine wrote to Mr Baird on 11th July that, having seen the additional information Mr Baird provided in amending the note of the meeting, Mr Baird's claim would be better supported if he were to provide samples of some of the documents referred to, to demonstrate the level of detail involved. Mr Baird was asked to fax a sample of a reasoned decision, both a penalty and surcharge decision and a contentious decision, and an example of a summons.[14]A second submission was sent to the Minister. On 16th July 2009. It showed that there were 81 meetings, lasting 229 hours, which were doubled (the multiplier) to take account of work outside meetings, ie 458 hours. As before there were 117 hours added as work on contentious cases, making a total of 575 hours. In addition, the Minister accepted that half-an-hour set up time for cancelled meetings should be taken into account. Since there were 11 cancelled meetings, that meant an additional 5.5 hours. The overall total was 580.5 hours.[15]A letter was sent to Mr Baird on 5th September 2008, stating that the Minister did not believe that Mr Baird could be considered full time and refusing his application for a pension.[16]The defendant now accepts that there were some errors in the figures submitted to the Minister. Mr Baird had itemised nine of the cancelled meetings within the head of "set up" time. The half-an-hour set up time attributable to those cancelled meetings was not included in the calculations. The letter referred to 576 hours, which meant that it was 4.5 hours short. Furthermore, the Minister had agreed that an additional half-an-hour set up time should be included for all meetings, making a total of 621 hours.[17]In broad terms Mr Baird's case is that the defendant has refused to take account of time additional to this which he worked as a clerk. In particular, the defendant has refused to take account of time spent preparing statistics and returns, for the preparation of summons, the travelling to hearings, for producing decisions and for collecting and reviewing the post. Clerks, their work and remuneration[18]When William Pitt the Younger introduced income tax the General Commissioners of Income Tax were appointed to implement the constitutive legislation. They in turn appointed a clerk. The General Commissioners were appointed by the Land Tax Commissioners but finally shed their administrative functions as a result of the Finance Act 1946, becoming purely judicial offices. Following the abolition of the land tax in 1960, the Lord Chancellor assumed responsibility for appointing the General Commissioners, under the provisions of the Tribunal and Inquires Act 1958.[19]In 2002, there were 228 clerks. In 2009, when the position was abolished with the new the tax tribunal system, there was 229. For a period prior to 2002 the remuneration for clerks to the General Commissioners of Income Tax was based on the work load for the previous 3 years. The work load figures were supplied by the appropriate Inland Revenue District. The different components of the clerk's pay formula were a listing fee for each case listed; a setting up fee for each appeal meeting; a meeting fee for each hour the meeting lasted for up to 4 hours; and an excess meeting fee for each half hour the meeting continued over 4 hours. The length of meeting could include the travelling time spent getting to and from the meeting, but there was a separate head for travel time, which was at the same hourly rate as the meeting fee.[20]Importantly, there was what was called a divisional markup fee. This was 10 per cent, later 19.5 per cent, of the amount due to be paid for the number of hours worked. It was designed to cover the cost of work before and after meetings. In October 1998 the divisional markup fee was increased from 19.5 to 38 per cent.[21]There was also a Case Stated component, which was paid on an hourly basis for the preparation of a Case Stated. The rate was the same as for contentious appeals. The contentious appeals component, for cases where a significant dispute was expected, was payable at an hourly rate. But a setting up fee was also paid even if the hearing did not take place. Under the formula operating prior to 2002 expenses could be claimed for postage, accommodation, travel and subsistence.[22]In the late 1990s there were a series of meetings between representatives of the clerks to the General Commissioners and representatives from the Lord Chancellor's department about pay arrangement for clerks. On 29th July 1997 the head of the Law Reform and Tribunal Policy Division of the Lord Chancellor's Department wrote to Mr Dallow, who chaired the clerk's association. The letter said that the newly elected government would be keen to link the remuneration received by clerks to an identifiable product. A further letter to Mr Dallow on 26th January 1998 summarised the main points discussed between the clerks and the departmental representatives and set out the agreed action points. In relation to the divisional of fee element of the existing formula the letter said that it had been introduced in the early 1980s and was meant to cover the clerk's time in the office before and after each meeting. It was not meant to cover a clerk's out of pocket expenses. The element had been set at 10 per cent, and then stood at 19.5 per cent:
"You explained that the clerk receives queries from tax payers and tax office before and after each meeting. Also, since the introduction of the 1994 rules, clerks received requests for a case to be reopened. There are also requests for a case stated. You felt there was a one-to-one relationship with the work going on outside the meeting and the work at the meeting itself. You therefore thought that the divisional fee element should be 100 per cent."
[23]In April 2000 the Lord Chancellor's Department published a report from a consultant, Inbucon Limited, on the pay calculation for clerks to the General Commissioners. The report began that some parts of the existing system used the actual time spent on an activity in order to calculate the clerk's remuneration. In a situation where the clerk could earn more on other functions, such as servicing private clients, there was little danger of abuse. However, not all clerks undertook private work, or had sufficient private work, and a safety net needed to be incorporated into the system. Since all the cases were different and often unpredictable, it was difficult to assess whether the actual time taken was the right and most sufficient amount.[24]However, the consultant recommended that a clerk's remuneration should move away from measuring volumes and deriving average times from these towards measuring the actual time taken. The new system would draw heavily on the actual time clerks spent at the appeal hearings. This key figure would produce not only a major element of the clerk's remuneration but also that element of administration, whether the clerk undertook the administration themselves or employed an administrator. The proposals were that the actual time the clerks spent in appeal hearings, both normal and contentious hearings should be recorded on time sheets. This should record the exact duration of the hearing rather than a rounded figure. The setting up/down allowance and any travelling time would be dealt with separately.

(b) read:

"This key figure is multiplied by a factor of 1.8 to produce the basic 'professional input' and a factor of three to produce the 'administrative input'. These multipliers have been derived from the data provided ... The multipliers allow for the additional work that is undertaken away from the tribunal hearings, on the basis that there is a direct relationship between the time and the hearings and the time of associated work."
[25]The Lord Chancellor adopted the approach of the Inbucon Report. Guidance on the new pay formula was issued in January 2002. A key feature of the new pay formula was the meeting record form, which clerks had to complete and return to the Lord Chancellor's department in respect of each appeal meeting before the General Commissioners. The form was designed to contain a full list of all appeals and applications. The actual not approximate time at which meetings were opened and closed had to be recorded. Should a preliminary meeting be held prior to the meeting, the length of the preliminary meeting was to be included in the overall time recorded for the meeting.[26]The Lord Chancellor's guidance set out the formula which was made up of a number of different elements remunerating clerks for their range of duties, both of a professional and administrative nature in supporting and attending appeal hearings. There was a set up fee paid for each appeal meeting, intended to remunerate clerks for their attendance prior to the start of the meeting and staying on at the close of the meeting and covering the setting up and down of the tribunal meeting room. A cancellation fee was payable, recognising that in certain circumstances, when meetings were cancelled, clerks may have carried out some work prior to meeting.[27]The professional fee was for duties involving the application by clerks of their legal and tax knowledge. The fee included a meeting multiplier element which reimbursed clerks for professional duties undertaken outside meetings. The guidance read:
"In addition there is a meeting multiplier - also applied to the length of meetings - to reimburse clerks for the work of a professional nature, undertaken outside Tribunal meetings, both before and after meetings. The multiplier covers such work as research and preparation for a meeting, dealing with queries from tax payers prior to a meeting, work required after a meeting, such as writing up notes and dealing with follow up correspondence from a tax payer."
The professional meeting multiplier was 1.8 although this was increased totwo at a subsequent date.[28]The next element in the guidance was the administrative fee, to pay clerks for duties of an administrative nature. This was an hourly rate applied to the length of appeal meetings. It covered clerks for the administrative aspects of their attendance at appeal meetings. As at 1st January 2002 the administrative hourly rate was £12. The administrative meeting multiplier was three. By way of illustration, the guidance provided that a meeting lasting 2 hours produced the following administrative fee: 2 hours x £12 by 3 = £72.[29]The overheads element in the guidance reimbursed clerks for costs such as stationery, telephone and photocopying. As to travel time, there was a fee paid to clerks for the time spent travelling to and from appeal meetings. Importantly there was a ceiling of 1.5 hours on the total amount of travel time per meeting for which payment was to be made. Under the guidance there was a Case Stated fee for work carried out for assessing a Case Stated. This was at the same hourly rate as the hourly professional rate.[30]As to the training activities, the guidance provided that the professional fee was designed to pay clerks for keeping themselves up-to-date on legislative changes, answering queries from the General Commissioners on legal points and appeal procedures and attending annual general meetings. For special training, the department was to consider putting in place provision for special payment outside the pay formula.[31]The General Commissioners have now been replaced by a new tax appeal System. As part of the planning for that new system the Tribunal Service undertook a data gathering exercise in late 2007/early 2008. The exercise ran for 6 weeks and included the busiest divisions. In a letter of 9th August 2007 Mr Watson, a civil servant working with the Tax Appeals Modernisation Project, invited Mr Baird to participate in the exercise. In that letter, he said:
"Although we get a good deal of information about meetings from your meeting record forms, the tax modernisation project needs more detail information about the current work of the General Commissioners. In particular, looking at numbers of case types and how long it takes to deal with each of them ... Getting this data will be invaluable for the tax reform project in giving us a better understanding of how long it has taken you and the Commissioners to deal with particular types of cases. This will help to inform the planning for dealing with these cases in the new system."
Mr Baird agreed to participate.[32]In a further letter, dated 4th September 2007, Mr Jordine thanked Mr Baird for agreeing to participate in the data gathering exercise and explained to him that although there was a good deal of information from the meeting record forms, the Tax Modernisation Project needed rather more detailed information about the current work of the General Commissioners, particularly looking at numbers of case types and how long it took to deal with each of them. The data gathering exercise would therefore capture more specific information than was previously obtainable.[33]The forms used in the data gathering exercise, the letter continued, had been shown to a number of clerks for comments before being approved. Those forms contained, for each case heard, columns for recording the start and end time, with a further column for a total time of the hearing. Then there were columns for the time spent on each case pre hearing, the time spent on each case post hearing, producing a time spent on each case outside the hearing. On Mr Baird's return some 40 cases dealt with during the period produced an average of just over 44 minutes per case at a hearing and about 35 minutes per case for the time spent outside a hearing. Likewise, in the data gathering exercise as a whole for all clerks, the average time spent outside meetings was just less than what was spent on the meetings themselves. A clerk's pension[34]Section 3(3) of the Taxes Management Act 1970, now repeated, provided as follows:
"The Lord Chancellor ... may, in such cases as he may inhis discretion determine, pay to or in respect of any full-time clerk such pension allowance orgratuity, or make such provision for the payment of pension allowance or gratuity to or in respectof any full-time clerk, as he may, with the approval of the Treasury, determine. In this subsection 'full-time clerk' means a clerk as regards whom the Lord Chancellor ... is satisfied that he is required to devote substantially the whole of his time to the duties of his office."
[35]Both sides agree that there are three stages in determining a pension application under section 3(3). The first stage is determining whether the clerk is a full-time clerk. That is what is at issue in this case. Then there is stage 2, the Minister's discretion. If the Minister is satisfied that the clerk was a full-time clerk, within the meaning of the Act, it falls to the Minister to decide whether, in his or her discretion, a pension should be awarded. Stage 3 is the pension calculation. Where a Minister awards a pension the method of calculating that pension is the same as the principal civil service pension scheme calculation, which is one-eightieth of remuneration multiplied by the individual years of service.[36]As to stage 1, in calculating whether the clerk was a full-time clerk, the first aspect in the defendant's approach is to set the maximum number of hours which could be worked. As indicated, assuming a 7-hour working day across 228 working days, the total number of available working hours is 1,596 per year.[37]The second aspect is to calculate how many hours the clerk was required to devote to the duties of office. Clearly clerks were required to undertake work outside meetings, which was not recorded in the meeting record forms. The approach taken by the defendant is to multiply the number of hours spent at meetings by two and to add any work undertaken on Case Stated appeals. The defendant based the multiplier of 2 on discussions with clerks in 1990s already mentioned, and reflected in the letter of Mr Dallow on 26th January 1998. That led to the conclusion that the work done outside meetings was equal to that done in the meeting itself, hence the multiplier of two. In the defendant's view the data gathering exercise, as part of the planning for the new tax appeal system, confirmed that the two times multiplier covered all time spent beyond meetings on both professional and administrative duties.[38]Once this figure of the hours spent on the duties of office is calculated, it is compared with the maximum number of hours available to assess whether or not the clerk had devoted substantially the whole of their time to the duties of office. If the actual hours exceeded the threshold of 70 per cent, in other words 1117 hours per annum, which the defendant set, the application would be placed before the Minister.[39]There are three ex clerks to the General Commissioners in receipt of a pension. They met the threshold with percentage marks of 80 per cent, 80 per cent and 70 per cent respectively. Two of those three serve city divisions and operated from a central office. Mr Baird assumes that with the third, Mr Howie, the Minister must have taken into account travel and administrative time. I will return to that later in this judgment.[40]In addition to the three applications granted, two further applications have been refused, one in 1998 because the clerk's workload was insufficient to be classed as full-time and the other because of his conduct. No gratuities have ever been awarded under the legislation.[41]Five further applications had been made by clerks before the abolition of the General Commissioners. Those applications were refused on the grounds that the clerks could not be considered full time. One of these other clerks, Mrs Balchin, has instituted a judicial review, which is currently stayed awaiting the decision in Mr Baird's case.[42]However, it should be noted that in 2001, Mrs Balchin had written about the possibility of being paid a pension. The defendant wrote to her in January 2002. That letter is relevant because Mr Baird was aware of it and relies on it as part of his case. The letter says that a final decision in relation to Mrs Balchin could only be made once the full scope of her clerk's service was known. At that stage, in her case, an accurate assessment could not be made on whether a pension might be payable. The department noted that Mrs Balchin had stated that she considered that she had been full time since her appointment to the Reading Division in September 1989:
"As I have said, a full assessment of your position can only be made at the time of your retirement. At this stage all I can say is that we note your view and consider that there does appear to be some merit in your view that you have been full time since 1989. However, as I have explained the Lord Chancellor has a wide discretion in these matters any award is at the Lord Chancellor's discretion subject to Treasury approval. I cannot anticipate what the Lord Chancellor's decision on this matter would be and as such basing your financial planning on this basis carries a risk."
Legal Principles[43]Under section 3(3) of the Taxes Management Act 1970, a full-time clerk means someone who the Minister is satisfied is required to devote substantially the whole of his time to the duties of his office. The phrase "the whole of his time" means the whole of the working time available to a full-time working clerk. On this approach there are 1,596 working hours available to a full-time working clerk in a year. There is no dispute about this. Nor is there any dispute about the defendant's benchmark, that in order to satisfy the requirement that a full-time clerk is required to devote "substantially" the whole of his time to the duties of his office a clerk must devote, at the very least 70 per cent of the available working hours to the duties of his office. On the basis of that 70 per cent threshold the Minister would have to be satisfied, as indicated, if a clerk devoted 1,117.2 hours per year, 70 per cent of 1,596, ie the threshold number of hours.[44]The issue then becomes what meaning is to be given to the statutory concept of the time the clerk is "required to devote... to the duties of his office." In my view, an objective approach is being demanded to determine what is required and what are the duties of a clerk's office: Smith v Abbott [1994] 1 WLR 306, [1994] 1 All ER 673, at 332, 688-689 respectively. An objective approach is consistent with the wording of section 3(3); the word "required" would otherwise be otiose. Further, section 3(3) refers to the time devoted to the duties of the office not, for example, to the time spent working in the capacity of a clerk. If Parliament had intended the assessment to be made otherwise than objectively, a provision would have been drafted on the basis of whether a clerk in fact devoted substantially all of his time to the duties of his office, or on the basis of the time the clerk reasonably devoted to the duties of his office.[45]The duties of clerks were set out in the General Commissioners (Jurisdiction and Procedure) Regulations 1994, SI 1994/1812 as amended ("the 1994 Regulations"). Other duties came to be implied over time, through custom and practice. Thus, it became possible to delineate, on an objective basis, a norm of what was required as the duties of the office of clerk to the General Commissioners. The upshot of an objective approach is that clerks could not, through their own acts, increase the scope of the duties of their office so that whatever tasks they undertook in their capacity as clerk was bound to be recognised as the duties of their office, or that whatever time clerks said they spent on those tasks was bound to be recognised as time clerks are required to devote to them. An objective approach ensures a parity of the treatment as between different clerks for the purposes of pension entitlement. It means that all clerks are assessed on the basis of the same duties. As a matter of legal policy, it would not be fair or sensible for a clerk to be able to generate entitlement to a pension by seeking out and undertaking additional tasks which other clerks did not find it necessary to do.[46]An objective approach, however, does not mean uniformity. That derives from the legislation itself. Section 3(1) of the legislation provided that a clerk should act under the direction of the General Commissioners for the relevant division, which means that a clerk acted under their general supervision. Thus, in some circumstances, the duties of a clerk's office could be determined in part by his or her General Commissioners. In my view, however, the extent to which the General Commissioners for a division could vary the duties of a clerk's office, from the norm, would be very limited. Moreover "required", in section 3(3), does not mean absolutely necessary. It means something that is proposed to be done that ought to be done: Re: Bruce [1905] 2 Ch 372 at 376. The extent to which a clerk was "required to devote substantially the whole of his time to the duties of his office..." cannot ignore the duties a particular clerk was required to perform. There was a norm for the office but that does not mean that the duties of the office around the country would have been identical. One example is that clerks in the cities did not have to travel, while clerks in the countryside, if the Commissioners had set out meeting in various centres, would have had to do so. Grounds of Challenge[47]In broad term Mr Baird's challenge is that the time he spent performing duties as a clerk to the General Commissioners has not been taken into account in the Minister's decision that he did not satisfy the definition of full-time clerk. His grounds of challenge can be conveniently collected under a number of heads, which I address shortly.[48]The defendant contends that its approach is reasonable. Allowing, as a general rule, twice the length of meeting times is supported evidence. In addition to the two times multiplier and by exception to the general policy in Mr Baird's case, account was also taken of the actual time which he had spent on preparing Cases Stated. Mr Baird was also permitted to select the year he considered most favourable for the purposes of his pension application rather than, for example, an average of the last years of service. Moreover, in the defendant's view, taking the threshold of 70 per cent of the working week was generous, because it meant that someone working only three-and-a-half days a week would be regarded as working full-time and thus be entitled to receive a pension. Indeed, on the defendant's case, not only was its approach reasonable, it was generous. The agreed figures of 81 meetings, in 2007, lasting 229 hours, show that, on the basis of 45 working weeks a year, the claimant attended an average of less than two meetings a week and that each meeting lasted on average less than 3 years. Given those bare facts, it is unsurprising that the Minister was not satisfied that that the clerk was not considered full time, and was not entitled to a pension. Administrative Work (a) Mr Baird's case.[49]On Mr Baird's case the defendant made an error of law and otherwise exceeded its powers in refusing to take any account of the administrative duties of being a clerk when assessing whether he was required to devote substantially the whole of his time to the duties of his office. That administrative work included providing statistics and returns, the preparation of summonses and making arrangements for hearings and collecting and dealing with post.[50]One plank in Mr Baird's case, as regards administrative work, is the Inbucon Report. That makes clear, it is submitted, that the 1.8 times multiplier applied for professional work, and the three times multiplier applied for administrative work, were both derived from data, albeit that that data was not as reliable as the consultant would have liked. Despite that, the Minister has refused to make any allowance for administrative time. The defendant says that the three times formula did not reflect the work involved but, in Mr Baird's submission, that is not what paragraph 2.2(b) of the Inbucon report stated. Even if the report was not wholly accepted by the Minister, that can provide no justification for not taking into account of administrative work. The defendant seeks slavishly to follow the multiplier for professional work. That means that the defendant is unwilling to give any credit for administrative work or, for that matter, the evidence for Mr Baird that the professional fee does not fully reflect all the non- administrative work undertaken by clerks.[51]As for statistics and returns, Mr Baird's case is that no explanation or evidence has been adduced by the defendant to support the proposition that these could be completed during the hearing. Clerks are paid to follow what is said during a hearing before the Commissioners and could hardly do this if they were spending time filling in forms. Moreover, there was no opportunity for Mr Baird to comment on the defendant's contention that the returns could be prepared during the hearing and he was never given any hint that his evidence might be dismissed on this basis. Accordingly the decision should be quashed in relation to the preparation of statistics and returns as being unsupported by any evidence and unreasonable and unfair.[52]Mr Baird's case on the preparation of summones and arrangements for meetings is that this was clearly a requirement of the office. Nothing that the defendant has said can justify totally discounting the time spent on issuing summones and otherwise fixing the dates for a hearing. Not to incorporate that time is flawed on public law grounds. Moreover, in reaching that conclusion, the defendant has unreasonably failed to take proper account of the fact that Mr Baird's Commissioners requested him to provide directions to the parties to appeals. The defendants states that notices of hearing were provided in standard form by HM Revenue & Customs. There was no evidence to that effect, at least as regards the more complex cases. The defendant's contention that Mr Baird could have used a template was in fact precisely what he did. Because the point was never put to him, he was unable to explain that a large part of the time relating to the issue of summonses related to discussions with the tax inspectors.[53]Then there is Mr Baird's case in relation to the time for collecting, sorting and reading of mail. The defendant refused on the basis that there was no requirement for Mr Baird to have a remote post box. But in coming to that conclusion, the defendant overlooked the fact that the Commissioners wanted the mail to be available on the day of any hearing. There was in any event much more to the task than simply collecting the mail. No allowance had been made for any time. Again, Mr Baird was given no opportunity to make that point.

(b) Discussion

[54]In my view, Mr Baird's various challenges to the defendant's decision relating to administrative duties must fail. The defendant has taken Mr Baird's administrative duties into account through the two times multiplier. The total time required to complete the professional and administrative duties for meetings is incorporated through its use. It cannot be said that the adoption of the multiplier is flawed on public law grounds. It will be recalled the multiplier emerged from discussions with clerks in the late 1990s, which lead the defendant to conclude that the work done outside meetings was equal to that done in the meeting itself. Nothing said on behalf of Mr Baird persuades me that there was anything wrong in the defendant using what was said in those discussions as a foundation for considering whether a clerk was acting full time.[55]Mr Baird contends that it was wrong for the defendant to use the data from the Tax Appeals Modernisation Project. He submits that time estimates on cases pre hearing concerned immediate preparatory work, that the survey covered a quiet period in the tax year and that he underestimated the time taken in preparing his own return for the project. But the letter of 9th August 2007, inviting Mr Baird to participate in the Tax Appeal Modernisation Project, was for the purpose of giving the defendant "a better understanding of how long it has taken you and the Commissioners to deal with particular kinds of cases." The forms asked for the approximate times spent on cases outside of the hearing both pre and post hearing. It cannot be that either the letter or the forms can be interpreted as a request to estimate the time taken on immediate preparatory work. Whether the six weeks period was busy or not should have no bearing on the ratio of time spent at hearings compared with that occupied before or after them. As to Mr Baird's submission that the figures were an underestimate of the work undertaken in that period, it seems to me that the defendant was entitled to rely on what clerks said when they completed their forms.[56]Mr Baird's reliance on the Inbucon Report takes his case no further. The three times multiplier used for the administrative fee was not because there was evidence that the work outside meetings took in general three times the length of the hearing. The purpose of the report was to advise on a fair and attractive remuneration package for clerks and not quantify and account for each and every aspect of the clerk's duties. Paragraph 2.2(b) said that there was a direct relationship between the time in the hearings and the amount of associated work and recommended the use of multipliers. But, in my view, it is inconceivable that the consultant was proposing a system whereby a one hour meeting would generate 3 hours of administrative work, plus 1.8 hours of professional work, in other words an additional work load of 4.8 hours.[57]There is also no public law error in the way the defendant approached the issue of preparing statistics and returns. These fell within the two times multiplier. In any event, examples of the meeting record forms and the accommodation claim forms are before the court. In my view, the defendant was entitled to submit that they are rudimentary in character and should only have taken a short while to complete. The task should not have deflected his attention at meetings, if Mr Baird had chosen to complete them there. Likewise, I cannot see that it is unreasonable for the defendant to conclude that the clerk's own expense forms were any more complicated. In as much Mr Baird spent time correcting the expense forms of the General Commissioners, that was no part of the duties of his office, although no doubt it was of great assistance to them.[58]There was standard form appeal hearings notices issued by HM Revenue & Customs, with envelopes, which at least in simple cases clerks could have forwarded to the relevant parties. It seems that Mr Baird issued his own summons, albeit to a template. Even were I not to regard this exercise, as the defendant submitted, as unnecessary duplication, it seems to me that it fell under the two times multiplier. So, too, did the time Mr Baird spent liaising with inspectors which, on his account, ensured that time was not wasted at meetings. That aspect of Mr Baird's claim was before the defendant as early as 5th June 2008 meetings, so there can be no complaint that it was not taken on board.[59]There is no evidence that Mr Baird's method of sending a summons was directed by the General Commissioners. It may have become the practice in his division but that does not mean that it was directed.[60]Mr Baird's method of collecting, sorting and reading the post is the least persuasive aspect of his claim under this head. At the 5th June 2008 meeting he asserted that he spent 140 hours on this activity, which equates to 20 working days a year. In his statement for this hearing Mr Baird explains that the post collection would involve 35 minutes a day, an average figure, because if the meeting was in the opposite direction he would be caught in early morning traffic. Post was collected five days a week, even if there was no meeting, and on average every other Saturday. Mr Baird concedes in his statement that it could not be said that every day generated a vast amount of post. But it was a rare day that something did not need attention. Between the simple letter needing a reply and the complex item needing research before it could be settled, on average the daily time would be 1.5 hours. That amounted of 375 hours in 2007.[61]As a matter of law it cannot be said that Mr Baird's method of collecting and dealing with the post was required by the duties of his office. Nor can it be said that it was necessitated by the General Commissioners' wish to have the day's post available to them on the morning of a hearing. Although Mr Edwards, one of General Commissioners who retired in 2000, was aware that Mr Baird used a post office box, there is no evidence he gave Mr Baird a direction to use one, still less that he directed Mr Baird to empty it every day, and on average every other Saturday, regardless of whether or not there was a meeting. There were any one of a number of ways in which the General Commissioners could have ensured that they had all the necessary documents before them on the day of the meeting. Travel Time[62]In the interests of securing local justice the General Commissioners held hearings at different places within the division. Mr Baird was paid for his travel to the different locations. The defendant also paid the accommodation charges, as the General Commissioners hired rooms around the division. Mr Baird contends that the defendant's policy of ignoring travel time was wrong as a matter of law, since it incorrectly assumed that he was not travelling in the performance of his duties. A reconsideration of the policy on travel was in any event justified by the increasing size of divisions, which made it inevitable that clerks would have to travel to hearings in a number of different places.[63]There were detailed submissions before me as to the tax deductability of Mr Baird's travel expenses. On his behalf it was said that his travel expenditure was deductible for income tax purposes on the basis that he was performing his duties when travelling (Income Tax Earnings and Pensions Act 2003, section 336; Taylor v Provan [1975] AC 194 at 215). The defendant submitted that Taylor v Provan was decided on its facts; cited Ricketts v Colquhoun [1926] 1 AC 1, and Smith v Abbott [1994] 1 WLR 306, [1994] 1 All ER 673; and submitted that it is likely that if travel expenses were tax deductible it was because they were regarded as falling within section 338(1)(b) of the Act, as expenses attributable to the employee's necessary attendance at any place in the performance of the duties of the employment, and not the expenses of ordinary commuting within section 338(2).[64]There is no need for me to make any finding on the tax deductability of Mr Baird's travel expenses. That is because, in making her assessment under section 3(3) of the Taxes Management Act, the Minister was entitled to adopt her own policy and was not bound to consider that Mr Baird's travel to the meetings was a duty of his office because of the tax treatment.[65]The issue for me is whether that policy of disregarding travel as a duty of office is flawed in public law terms. The defendant submits that the policy was manifestly reasonable. Travel from home to a place of work is clearly necessary to allow office holders to perform their duties but is not normally regarded as part of those duties. Travelling to work is not activity carried out in the performance of work, but activity which is a necessary preliminary to or in preparation for the performing of work: Smith v Abbott at 314 and 618 respectively. If travel time had been taken into account, this would have unfairly penalised clerks who did not have to travel to meetings because the meetings were held at their offices.[66]In my view, it is open to the defendant to have a policy of not accounting for travel when determining whether a clerk was working full time. However, the defendant must be prepared to allow for exceptions in appropriate cases. It is a well accepted principle of public law that policies must not be so rigid as to prevent any consideration of individual merits or the need to consider changes in the policy: R v Home Secretary ex parte Venables [1998] AC 407, at 497 to 498.[67]Here, in the interests of local justice, the meetings of the General Commissioners were held at various locations around the division. The defendant was aware of that because it paid out claims for accommodation held at various places in the division. Mr Baird travelled around the division from his office at his home. The increased size of the division, with amalgamation, made increased travel inevitable. Any difference as regards Mr Baird's travel, compared with other clerks, might well reflect the geography of the respective divisions.[68]In my view the defendant's inflexible policy of ignoring travel when determining whether Mr Baird was working full time was flawed. That travel time might not have been in the performance of his duties, but the Minister should have been open to submissions to treat it as such. Decisions[69]On Mr Baird's case the defendant exceeded it powers by adopting a rigid policy of paying no regard to any work done by a clerk in so far as it exceeded twice the length of the hearing, half-an-hour of set up time, half-an-hour for late cancellations, and time spent on Cases Stated. That excluded work Mr Baird expended on preparing decisions. He spent many hours, on his account, preparing detailed decisions which had the beneficial outcome of reducing later disputes and appeals.[70]In my view this part of the challenge must fail. First, the Minister did not apply a blanket policy since she took into account 117 hours of work that Mr Baird did on contentious hearings in 2007, which were not incorporated under the two times multiplier. On a blanket application of the policy, this time would not have been taken into account.[71]Secondly, the Minister was entitled to take the view that it was unnecessary for Mr Baird to prepare routine decisions in the formal equivalent of a Case Stated. That is supported by the notes for the guidance of General Commissioners, published by the Judicial Studies Board, which contains this commentary on Regulation 16 and 17 of the 1994 Regulations, relating to decision making:
"6.11.1 The Tribunal must give reasons for decisions in order to comply with Article 6 of European Convention on Human Rights. The reasons should be given briefly. There is no reason to summarise all the evidence. The clerk will be able to help the Commissioners with drafting a short of an accurate summary of reasons and he or she will inform the tax payer of the reasons in the letter advising the tax payer of the reasons advising the tax payer of the Tribunal's decision."
Further, it is clear from regulations 20 and 21 of the 1994 Regulations that the clerk is required to state a case only when required by any party to the proceedings. In my view, if any of the General Commissioners had purported to instruct Mr Baird to draft detailed decisions as a matter of routine, Mr Baird should have drawn their attention to the fact that that the request was inconsistent with the regulations and contrary to the JSB guidance notes. He should have modified his practice. Individual consideration, fairness, legitimate expectations and discrimination[72]In various respects Mr Baird alleges that the defendant acted wrongly by not giving his case individual consideration. It is also said that the defendant acted unfairly by reaching a decision based on a policy which was never clearly explained to him and by relying on points which were never put to him. On his case he had a legitimate expectation of a pension and there was discrimination in using 2007 not 2006 figures.[73]In my view, there has been individual consideration of Mr Baird's case and there was no procedural unfairness. To the contrary, I am impressed with the care with which the defendant has handled Mr Baird's case. It is clear from the evidence that apart from the travel issue, the defendant did not fail to give its mind to the claimant's case. The individual consideration his case was given is demonstrated by the meeting with Mr Jordine and Mr Pearson on 5th June 2008. There was also the fact that Mr Baird was requested to send through examples of his work, so that they might be considered by the Minister and a considered response given to the additional hours Mr Baird said should be taken into account. The notes of that meeting show that the defendant's policy was clarified to Mr Baird at the outset of the meeting and that he explained in some detail the heads of additional work which, he said, he had undertaken but which were not included in the multiplier. At the meeting Mr Baird was given the opportunity to make the points he wanted to make and he subsequently submitted further points so that the agreed note would be on record.[74]As to legitimate expectation, that demands a clear and unambiguous representation upon which it is reasonable for an individual to rely: R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213. In general terms Mr Baird contends that the defendant has breached his legitimate expectations because, it is said, the evidence suggests that the policies applied to him had not been applied in the past. However, in this case no promise or representation was made to Mr Baird that he would be entitled to a pension. In so far as he relies on the letter sent to Mrs Balchin of 21st January 2002, that letter may have given him hope but its careful phraseology is not sufficient to give rise to a legitimate expectation on his part.[75]As regards the fact that a pension was awarded to Mr Howie, I accept the evidence that there is nothing in the papers still available to suggest that when considering the amount of time Mr Howie devoted to the duties of his office, his travel time was taken into account or that an additional amount of time for administrative work was taken into account, other than that included in the two times meeting multiplier. All the evidence suggests that the policy which has been applied to Mr Baird is the same as that applied to previous pension claims.[76]It was on this issue of the department's past policy of awarding pensions that Mr Woolf, representing Mr Baird, applied to cross-examine Mr Jordine. In his contention it would be wrong to accept the reasonableness of the two times multiplier without disclosure of the documents relating to the departmental decisions on previous applications relating to pensions. But live evidence is exceptional in judicial review. In this case it would not, in my view, have taken Mr Baird's case any further. Mr Jordine was not in post in the 1990s and his evidence was unlikely to throw any further light on earlier pension decisions. Moreover, I have no reason to doubt the veracity of Mr Jordine's statement.[77]Finally, it is said that the defendant made an error of law by acting in a discriminatory and inconsistent manner. At one point it was suggested that Mr Baird was not given an option to select which year he considered most favourable, whereas other applicants had been given that option. But at its strongest Mr Baird's evidence is that he cannot remember whether he was given an option. As a matter of record Mr Baird now suggests that the most favourable year for his application was 2006. In that year there were 319.5 hours of hearing time, giving 639 hours with the times two multiplier, 58 hours for setting up meetings, eight-and-a-half hours for cancelled meetings, giving a total of 705.5 hours compared with the 621 hours currently allowed. Conclusion[78]Mr Baird gave many years of service as a clerk to the General Commissioners. From the evidence before me, it is obvious that he earned the high respect of the General Commissioners he served. But in my view, his claim cannot succeed on the applicable law. Although in my view the Minister was wrong not to consider whether Mr Baird's travel time ought to have been taken into account in deciding whether he was a full-time clerk, it is a well accepted principle that for an application for judicial review to succeed, it is necessary for an error of law or a misdirection to be material: R (on the application of Warren) v Mental Health Review Tribunal London and Northeast Region [2002] EWHC 881 (Admin Court); Fordam, Judicial Review Handbook, 5th edition (2008), paragraph 48.1.6. If Mr Baird's 2006 figure of 705.5 hours had been used, coupled with time for contentious cases and travelling time, the total still falls short of the requisite threshold of 1,117 hours per annum. Thus the error or misdirection I have identified would not have affected the outcome. In those circumstances it is not appropriate for the court to interfere. I refuse the claim.[79]MISS MOORE: My Lord, to make it clear, I am not instructed to ask for costs in this case.

MR JUSTICE CRANSTON: Are there any further applications?

[81]MR WOOLF: My Lord, can I ask for leave to appeal when necessary to do so.

MR JUSTICE CRANSTON: On what grounds?

[83]MR WOOLF: I would submit certainly on the question of natural justice because we never actually had a proper opportunity to kind of question the basis of the policy, because we were not informed about it. There was an unfairness in the decision. That is one of my obviously primary submissions to you and for that reason I would submit there was an error of law.[84]MR JUSTICE CRANSTON: I think I have dealt with that in the judgment. I think you will have to go elsewhere Mr Woolf.[85]Can I thank you both for the care with which you have presented the case.