Osborne & Ors v Revenue & Customs [2009] UKFTT 241 (TC)

FTT-Tax
Osborne & Ors v Revenue & Customs
[2009] UKFTT 241 (TC) · 2009-09-08
[1]These are 13 joined appeals against decisions of HMRC that Class 3 National Insurance Contributions paid by the Appellants in respect of various tax years were not paid in error, and that consequently those contributions were not repayable under regulation 52 of the Social Security (Contributions) Regulations 2001.[2]Of the 13 Appellants, 10 were either present or represented. Those not so represented were Valerie Patterson, Stanley Mower and Robert Brumpton. None of those appeared at the hearing. All the appeals raise similar issues, and accordingly it was expedient for them to be heard together. Each of the Appellants who did not appear had previously agreed to their appeals being heard together with the other appeals in this matter and I am satisfied that notice of the hearing was given to them all. In those circumstances I considered that it was in the interests of justice to proceed with all the appeals, including those of the Appellants who were absent and unrepresented, pursuant to rule 33 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009.[3]As well as Clifford Bonner for those of the Appellants whom he represented, I also heard from the Appellants Ian Osborne and Michael Dobson, who were present in person as well as being represented by Mr Bonner, and from Stanley Simmons who appeared for his wife, Angela Simmons. David Forsdick of Counsel appeared for the Respondents. I am grateful to them all for their helpful submissions. The Respondents also produced a bundle of documents containing material in relation to each of the appeals, including written submissions from the Appellants, all of which I have read and taken into account in reaching my decisions. Background[4]The background to these appeals is the pensions reform that was foreshadowed in a Government White Paper: “Security in retirement: towards a new pensions regime” (Cmd 6841, May 2006), that was issued on 25 May 2006. That White Paper made a number of wide-ranging proposals for a fundamental reform of the state pensions regime. Amongst its proposals, and the only one that is relevant for the purpose of these appeals, was a proposal that for men and women reaching the state pension age on or after 6 April 2010 the number of qualifying years required to earn the full Basic State Pension be reduced from the then current 39 years (in the case of women) and 44 years (for men) to 30 years.[5]This change to the number of qualifying years required to earn the full Basic State Pension was later enacted as s 1(3) of the Pensions Act 2007, which received Royal Assent on 26 July 2007. Section 1(3) came into force on 26 September 2007.[6]Class 3 NICs may be made under s 13 of the Social Security (Contributions and Benefits) Act 1992, subject to certain conditions, to enable a person to satisfy the contribution conditions (outlined in s 21 of that Act) related to the entitlement to certain benefits, including the Basic State Pension, widowed parent’s allowance and bereavement allowance, by making a year a qualifying year. A contributor has to be entitled to pay Class 3 contributions, but they are voluntary.[7]In order for a tax year to be a qualifying year, sufficient NICs must have been paid, treated as paid, or credited for that year. This is usually achieved through a compulsory payment of Class 1 or Class 2 contributions through employment or self-employment respectively. Where, for whatever reason (for example, insufficient earnings from employment), a person has not paid sufficient contributions to make a year or years a qualifying year or years, they may choose to pay Class 3 contributions to make those years qualifying years. Individuals normally become aware that they have a non-qualifying year or years by:(1) receiving a State Pension forecast from the Department for Work and Pensions (DWP), or, if they are living abroad, from HMRC;(2) receiving a letter from HMRC informing them that a tax year is a non-qualifying year; or(3) making enquiries of HMRC about any non-qualifying years.[8]In each of the cases concerned in these appeals, for reasons that are not material, the Appellants had not paid, been treated as having paid, or been credited with, sufficient NICs in order that the tax years in question could be qualifying years. They made Class 3 contributions for those years in the manner described later in this decision. However, in all cases, prior to the payment of these contributions, each of the Appellants already had 30 qualifying years, so that, as far as the entitlement to Basic State Pension is concerned, the change in the law had the consequence that the additional contributions provided them with no value in terms of increased pension. Consequently, each of the Appellants sought a refund from the Respondents of those “excess” Class 3 contributions and it is from the decisions of the Respondents that such refunds are not due that the Appellants now appeal. Issues for determination[9]The Respondents state the issues for determination by the Tribunal as follows: Whether voluntary Class 3 NICs paid I. prior to the publication of the government’s White Paper ‘Security in retirement: towards a new pensions system’ on 25 May 2006; or II. after the issue of the flyer, which HMRC started to issue in August 2006, but before the enactment of the Pensions Act 2007; or III. after the coming into force of the 30 qualifying year provision of the Pensions Act 2007 are paid in error within the meaning of regulation 52 of the Social Security (Contributions) Regulations 2001.[10]The Appellants did not dispute that these issues require determination, but they raised a number of other arguments which I shall also address in this decision. The facts[11]In respect of the issue whether the contributions were “paid in error”, it is convenient (as was the case at the hearing) to describe the relevant periods as Category 1 (prior to publication of the White Paper), Category 2 (after the issue of the flyer) and Category 3 (after the coming into force of the 30 qualifying years provision of the Pensions Act 2007). The flyer[12]As I have described, the White Paper that was issued on 25 May 2006 included the proposal, subsequently enacted, to reduce the number of qualifying years required for the full Basic State Pension to 30. The Respondents sought to bring this proposal to the attention of individuals by issuing a flyer in the following circumstances:(1) with the letter, issued between September 2006 and January 2007, advising individuals that the 2004/05 tax year was a non-qualifying year;(2) to those who were paying, in the 2006/07 tax year, Class 3 NICs by direct debit or quarterly “bill”. The flyer was issued between 30 August 2006 and 8 September 2006;(3) with all new applications to pay NICs made between September 2006 and September 2007; and(4) with a Pension Forecast issued, on request, to individuals living abroad.[13]I was shown an example of the letter sent by the Respondents. I set out its text below:
“ IMPORTANT INFORMATION – Please read this carefully before you decide to pay further voluntary Class 2/3 contributions On 25 May 2006 the Government published a White Paper ‘Security in retirement: towards a new pensions system’ ( CMD6481 ). The White Paper includes a proposal to reduce the number of years needed to qualify for a full basic State Pension to 30 years for both men and women reaching State Pension age on or after 6 April 2010 (at the moment women need 39 years and men 44 years). For this to happen the law needs to be changed. Our records show that you may be currently paying voluntary Class 2/3 contributions to make the year count for your pension under the current law. If the White Paper becomes law, you may not need to pay any further voluntary Class 2/3 contributions, this is because you will reach State Pension age on or after 6 April 2010 and: · you may already have qualified for a full basic State Pension under the proposed new rules; or · you may anticipate working and paying enough contributions to qualify for a full basic state pension under the new rules. We should know by late summer of 2007 if the proposal in the White Paper will become law. You should therefore consider very carefully whether you should delay paying any further Class 2/3 contributions until it is clear whether the rules will change. If you decide that you want to continue to pay, you might not be able to get a refund if it turns out that you need not have paid them. However, if you delay paying the contributions, you may have to pay them at a slightly higher rate. For more information visit www.dwp.gov.uk/pensionsreform ”
[14]The DWP also enclosed a flyer with a State Pensions forecast issued to individuals on request. Between December 2005, when the DWP started to issue the flyer, and May 2006, the flyer simply alerted individuals to the fact that the Government was consulting on pensions reform. The flyer made no mention of the 30 years proposal. The flyer issued from May 2006 reflected the fact that the White Paper had been published. Although it mentioned the fact that the changes would mean that state pension would be calculated differently for those reaching state pension age on or after 6 April 2010, it did not mention expressly the 30 years proposal. Category 1[15]Eleven of the 13 appeals fall into Category 1. Payments were made by the Appellants before the publication of the White Paper on 25 May 2006. Prior to the White Paper, the Government had established a Pensions Commission to report on pensions reform. The Commission issued its first report on 12 October 2004, its second report on 30 November 2005 and its final report early in 2006. However, the proposal for a reduction in the maximum required number of qualifying years for the full Basic State Pension to 30 was not included in any of these reports and was first published in the White Paper. Category 2[16]Only Mr Brumpton fell into this category. According to the documents produced to me, and I find as a fact, Mr Brumpton received a letter from the Respondents in respect of the tax year 2004/05. This included a form setting out how to pay the Class 3 contributions and advising that, if Mr Brumpton wished to pay, payment would need to be received before 6 April 2011. The technical details at the head of this form include the date, which was 15 September 2006. I find as a fact that the letter, and the form, were sent by HMRC to Mr Brumpton on that date. The form is stamped with a Post Office stamp dated 26 March 2007 in the amount of £371.80, and I find that Mr Brumpton paid the Class 3 contribution on that date.[17]In a letter to HMRC dated 2 September 2007, Mr Brumpton wrote:
“I honestly did not know about the changes when I wrote out the cheque…I opened the letter and saw the amount payable, then threw the rest away. I then put the order to one side to think about it. Much later I had a small pension mature which made my mind up, and I paid up at the Post Office.”
On the basis of HMRC practice regarding the distribution of the flyer, and Mr Brumpton’s explanation of what happened to the contents of the letter he received from HMRC, I find that on the balance of probability the flyer was sent to Mr Brumpton on 15 September 2006.[18]In the same letter to HMRC Mr Brumpton went on to say:
“Later my pension provider North Lincs Council sent me a new letter about govt contributions etc, and that you had to apply reclaim them if you had paid any. This is honestly the first time I had heard of the new rulings. I then sent you a letter to reclaim the contributions. Do you honestly think I would have written a cheque for that amount if I had an inkling I had no need to?”
The letter to HMRC to which Mr Brumpton refers was sent by him to HMRC on 15 May 2007.[19]I did not have the advantage of hearing from Mr Brumpton in person, but the letters from him to HMRC to which I have referred were included in the bundle provided by the Respondents and their contents were not challenged by them. I find that Mr Brumpton first learned of the proposed change to the required number of qualifying years on receipt of the letter from North Lincs Council, and that on the basis of his consequent claim for a refund it can be inferred, and I find as a fact, that he made the March 2007 payment in order to achieve a further qualifying year for the purpose of the Basic State Pension and would not have done so had he been aware of the proposed change in the law.[20]Although Mr Brumpton was not among them, I should in the context of Category 2 mention another class of payers of Class 3 contributions, namely those who paid after the publication of the White Paper but before 26 July 2007 (the date the Pensions Act 2007 passed into law). In those cases, I am informed, if the payers were not aware of the 30 years proposal when they made the payments (by which was meant that at the time they paid they had not received information from HMRC about the changes) HMRC would accept that the contributions were paid in error and would make refunds. This policy was announced by the Government on 16 January 2007, and the administrative arrangements for such refunds were published on the HMRC website in June 2007. Category 3[21]Category 3 applies only to Mr Wadwell. He made two payments that are the subject of his appeal. The first was for £356.20 on 4 January 2005 in respect of tax year 2002/03, which falls into Category 1. The second, which is in Category 3, was for £1,666.60 and was paid on 30 October 2007 in respect of tax years 1997/98 to 2001/02.[22]In his letter of 30 October 2007, enclosing his cheque for £1,666.60 Mr Wadwell said:
“According to my calculations, with the … voluntary contributions, I now have 44 qualifying pension years and that this is the number of years required to guarantee my full State Pension. I should be most grateful if you would confirm that my calculations and understanding are correct.”
On this basis it was accepted by Mr Forsdick on behalf of the Respondents that the payment of £1,666.60 on 30 October 2007 was made by Mr Wadwell to “buy” additional qualifying years for Basic State Pension purposes. This led to the concession to which I shall refer below. Discussion[23]I first consider the Respondents’ issues for determination, all of which depend on whether the contributions made at the various times were paid in error and were thus repayable under regulation 52 of the Social Security (Contributions) Regulations 2001. So far as is material to these appeals, the version of regulation 52 that applies for contributions in respect of tax years 2003/04 and subsequent years is as follows: 52-(1) This regulation applies if a contribution other than a Class 4 contribution has been paid in error. ...(2) If this regulation applies, an application may be made to the Board for the return of the contribution paid in error.(3) An application under paragraph (2) shall be made to the Board— ( a ) in writing, or in such form and by such means of electronic communications as are approved; and ( b ) within the time permitted by paragraph (8).(4) On the making of an application under paragraph (2) the Board shall return the contribution paid in error. ... (8) An application for the return of any contribution paid in error shall be made within the period of six years from the end of the year in which the contribution was due to be paid. This is subject to the following qualification. If the application is made after the end of that period, an officer of the Board shall admit it if satisfied that— ( a ) the person making the application had reasonable excuse for not making the application within that period; and ( b ) the application was made without unreasonable delay after the excuse had ceased. (9) In this regulation “error” means, and means only, an error which— ( a ) is made at the time of the payment; and (b) relates to some past or present matter. The former regulation 52, which applied for the tax years in question prior to 2003/04, is worded a little differently in some respects, but provides for the same right of return of a contribution paid in error, and the same definition of “error”.[24]Before seeking to apply this provision to each of the categories of case in these appeals, I must first consider the proper construction of “error” in this context. I agree with Mr Forsdick that regulation 52 provides for a restrictive definition. The definition is exhaustive. This is emphasised in particular from the employment of the phrase “and means only”. First, in my view it has the effect that only an error which is both made only at the time of the payment and also relates solely to some past or present matter can be an error for regulation 52 purposes. It precludes hindsight. So, if an error relates to a future matter as well as to a past or present matter, it is excluded. If the error can be discerned only by reference to something that happens, or does not happen, in the future, then it is not an error within the meaning of regulation 52. Secondly, the error must be one that “relates” to a past or present matter. Such a matter must therefore be one on which the decision whether or not to make a payment at the time in question can be based. To be such a matter it must be one that, objectively, is presently available to be relied upon for the purpose of such a decision.[25]Applying this construction to each of the Categories, I reach the following conclusions. Category 1[26]In relation to the question whether payments were made in error, Mr Bonner argued that in each case if an Appellant had been aware that he or she was paying such a large sum for only a small benefit (for example, the bereavement allowance, in contrast to the enhanced Basic State Pension), then payment would not have been made. On this basis, and on the basis that it was assumed that the monies would be applied to the Basic State Pension, it is contended by the Appellants that an error was made, and that this was an error of judgement. In addition Mr Bonner argued that as it had been accepted by the Respondents that certain payments of contributions after the publication of the White Paper and before 26 July 2007 had been paid in error, then the same analysis ought to be applied to all payments. It was furthermore argued by the Category 1 Appellants that information on the White Paper proposals must have been available within Government, and that this information ought to have been made available to individuals making Class 3 contributions. Without it, it was submitted, the payments were made in error.[27]Mr Forsdick accepted that someone in the Government must have known of the 30 years proposal before the publication of the White Paper announcing this proposed change for the first time. The Pensions Commission had not included this proposal in its own recommendations, and it was first announced in the White Paper. Discussions prior to the issue of the White Paper were, he said, inchoate, and such undeveloped ideas and proposals could not be regarded as forming a basis on which a decision whether or not to pay contributions could reasonably be based. At the times the Category 1 payments were made the only certain fact was that, under the then current law, 44 qualifying years were required in the case of men, and for women 39 qualifying years. A prospective change in law about which nobody outside the policy-making body itself is aware cannot be taken into account. Accordingly, having regard only to the circumstances pertaining at the times of the payments, the payments were not made in error.[28]I agree with Mr Forsdick. I do not accept in the case of the Category 1 payments the Appellants’ contention that there was an error capable of falling within regulation 52. Viewed objectively at the times when the payments were made, and taking into account the facts and circumstances and the information available to the Category 1 Appellants at those times, it could not in my view be concluded that an error had been made. With hindsight, once the White Paper was published it could then be seen that it might have been advisable at the relevant time for payment to be at least deferred, and later, when the Pensions Act provisions came into force, not to be made at all, but the use of hindsight is precluded by the definition given to “error” in regulation 52. I agree with Mr Forsdick that a payment made in ignorance of internal Government thinking an unpublished proposal is not one made in error. Such inchoate material was not material that was available to the Category 1 Appellants at the times they made their payments and it could not therefore have formed the basis of decisions which they made as regards payment. The only past or present matters on which the Category 1 Appellants could at those times have made their decisions were the existing legal requirements in respect of qualifying years. No error was made by any of the Category 1 Appellants in those respects. Category 2[29]Mr Forsdick argued in relation to Category 2 payments that the Respondents had gone to exceptional lengths to bring the 30 years proposal to the attention of individuals by the issue of the flyer which I have earlier described. He said that the flyer is unambiguous. He referred to Mr Brumpton’s assertion that he threw away materials sent to him by the Respondents without reading them and argues that, notwithstanding this, the test must be an objective one under which it has to be assumed that a person has knowledge of all the advantages and disadvantages of a particular course of action (or inaction) and that Mr Brumpton must be assumed to have made a legitimate choice. Mr Forsdick referred in this connection to the possibility that, if payments had not been made at the relevant time, either they would be out of time or, as the flyer made clear, they might have become payable at a slightly higher rate.[30]I do not accept Mr Forsdick’s arguments in this respect. There is nothing in regulation 52 to suggest that the payer of a contribution must be deemed to have all the available information and thus to have made an informed choice. The only question is whether, on the actual facts, there is a present error. An error can be, indeed is more likely to be, made out of ignorance as well as with the benefit of knowledge of all the relevant facts and circumstances. If a payer of a contribution is ignorant of the position, it is not an answer to say that the information is unambiguous or that the Respondents did all they could to bring it to the payer’s attention. Those factors may be relevant in determining whether or not the payer did in fact know of the relevant matters, but they do not of themselves preclude the possibility of error.[31]In the case of Mr Brumpton it is necessary to ask if, having regard to the facts and circumstances, and the information available to Mr Brumpton at the time of payment, a present error can objectively be said to have been made. This does not mean that Mr Brumpton must be deemed to have read the available information, or understood it. It is merely that the available information is a matter which the objective observer can take into account in considering if Mr Brumpton made an error. Applying this test to Mr Brumpton’s payment on 26 March 2007, I have, as described above, found that Mr Brumpton made the payment in order to achieve a further qualifying year for the purpose of the Basic State Pension, and accordingly that he did not make a choice to make the payment for the other benefits that could have been obtained, such as bereavement allowance. Furthermore, I have found that at the time he made it he would not have made the payment if he had been aware of the proposed change in the law, in respect of which there was available information (and thus a present matter) in the form of the White Paper and the flyer. He did not therefore make a legitimate choice to make immediate payment either to avoid falling outside a time limit (this would not in any event have expired before 6 April 2011) not to avoid an increased rate of payment. I find therefore that Mr Brumpton’s payment on 26 March 2007 was made in error for the purposes of regulation 52 and that he is entitled to repayment of the sum of £371.80.[32]I should add, in case there is any doubt, that making an immediate payment instead of deferring that payment can be just as much an error under regulation 52 as the making of a payment which ought not to have been paid at all. The present material available to Mr Brumpton at the time of the payment would have informed him of a possible future change in the law, on which basis, in my view, he would at least have deferred payment until the position was clarified. The error was in making immediate payment when the alternative course would have been at least to defer payment. It was not one that could be discerned only once it was known that the law had changed, as the possibility of such change had been indicated by the White Paper and the flyer. The information available from those present sources that the law might be changed in the future would, in my judgment, have led Mr Brumpton not to have made the payment when he did. The error was therefore a present error made in relation to present matter. Category 3[33]As a general proposition in relation to Category 3 contributions Mr Forsdick argued that even after the coming into force of the 30 years rule, individuals could still make a legitimate choice, in that even though additional Class 3 contributions for years in excess of the 30-year limit would no longer increase the Basic State Pension for individuals affected, those payments would nevertheless entitle the payer to other benefits, such as bereavement allowance. However, on behalf of the Respondents Mr Forsdick conceded that on its facts Mr Wardwell’s appeal in respect of the payment of £1,666.60 on 30 October 2007 should be allowed. I agree. Mr Wardwell had made this payment to secure additional qualifying years which, following the coming into force of the 30 years rule, he did not need. This was clearly an error on his part. Appellant’s other arguments[34]Mr Bonner referred me to legislation on mis-selling in the Fraud Act 2006, and said that the notifications by the Respondents and the DWP to individuals as to their rights to make Class 3 contributions were tantamount to a commercial company inviting its customers or investors to invest or deposit funds in the certain knowledge that they had no intention of repaying them. In the same vein, Mr Simmons argued that the Respondents owed a common law duty of care to the contributors and that they had been guilty of common law negligence. Damages should be due in an amount equal to the contributions. Other Appellants made similar points that they ought to have been kept informed of the risk of a change in the law, and they had not been.[35]As Mr Forsdick reminded me, my jurisdiction is limited to the appeals against the decisions made by the Respondents that the payments were not paid in error. The statutory scheme for contributions is a comprehensive one and there is no scope for the application of extra-statutory exceptions, derogations or common law principles. I have taken into account these arguments of the Appellants in reaching my decisions on whether payments were made in error, particularly as regards Category 1, but except to that extent these arguments that a refund ought to be made cannot be entertained by me within the jurisdiction of this Tribunal.[36]Similarly, I have no jurisdiction to consider arguments based on fairness or natural justice. Essentially this comes down to a criticism of the legislative changes themselves in relation to the number of qualifying years required before a full Basic State Pension could be claimed. It is said (and I can understand the sense of grievance felt by the Appellants in this respect) that those who have taken prudent steps to manage their retirement – in a climate in which, it is argued, the Government has proactively encouraged members of the public to do so – will be disadvantaged as compared with those who took no action to fund their pension or, as Mr Bonner put it, fundamentally to “pay their way”. In a similar vein it was objected that the legislation did not create a level playing field. It was also suggested that the change ought to have been introduced on a phased basis to lessen the perceived unfairness. These are essentially criticisms of the change in the law and of the policy giving rise to that change. Legislative matters are of course for Parliament to determine, and wholly outside the jurisdiction of this Tribunal, so these arguments cannot assist the Appellants.[37]Mr Forsdick quite properly referred me to a decision of the General Commissioners in a case that would, in the classification adopted in this decision, have fallen into Category 1. I understand that HMRC have requested, but had not at the date of the hearing of these appeals received, a stated case, and so Mr Forsdick was in a position only to give me the barest of outlines. In essence, I was told that the General Commissioners had found that the contribution in that case had not been paid in error, which is consistent with what I have decided in relation to the Category 1 appeals before me. However, the General Commissioners had allowed the appeal and held that the contribution should be repaid on the basis that the contribution had not bought anything. I am not of course bound by a decision of the General Commissioners in another appeal. In my judgment the argument on which the General Commissioners apparently found for the Appellant in that case is unsustainable in this Tribunal. The jurisdiction extends only to application of the law, which in this case is confined to the question whether the contributions were paid in error.[38]Finally, one of the Appellants, Mr Swales raised in a letter to the Respondents, produced to me, an argument that the original decision not to allow a refund in his case had referred to the wrong tax year to which the contribution related. The decision dated 24 April 2008 stated:
“That the Class 3 contributions paid for the period 6 April 2002 to 5 April 2006 have not been paid in error”
. In fact, Mr Swales had commenced paying Class 3 contributions only in the tax year 6 April 2005 to 5 April 2006, and it was in relation to that year that the contribution in question was paid. This mistake was noticed by the Respondents and a varied decision referring to the correct period was issued to Mr Swales on 24 June 2008. In my view this properly rectified any irregularity and I reject Mr Swales’ argument in this respect. In any event the right to a refund is governed by regulation 52 which applies only if the contribution has been paid in error. A defect in a notification of a refusal to make such a refund cannot give rise to a right to a repayment of a contribution that is not paid in error. Decision[39]For the reasons I have given I allow the following appeals:(1) Robert Brumpton(2) David Wadwell, in respect of the payment of £1,666.60 made on 30 October 2007 in relation to tax years 1997/98 to 2001/02.[40]For the reasons I have given I dismiss the following appeals:(1) Ian Osborne(2) John Godden(3) Valerie Patterson(4) William Swales(5) Stanley Mower(6) Angela Simmons(7) Michael Phillips(8) Clifford Bonner(9) Ian Hodkinson(10) Michael Dobson(11) John Skeldon(12) David Wadwell, in respect of the payment of £356.20 made on 4 January 2005 in relation to tax year 2002/03. Those Appellants whose appeals have been dismissed, and the Respondents in relation to those appeals that have been allowed, each have a right to apply for permission to appeal against the relevant decision pursuant to Rule 39 of The Tribunal (First-tier Tribunal) (Tax Chamber) Rules 2009. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. ROGER BERNER TRIBUNAL JUDGE RELEASE DATE: 17 September 2009

Cited in 1 later judgment