Allan v Revenue & Customs [2011] UKFTT 115 (TC)

FTT-Tax
Allan v Revenue & Customs
[2011] UKFTT 115 (TC) · 2011-02-11
[1]This is Mr Allan’s appeal against HMRC’s decision that he was not entitled to make late payments of voluntary Class 3 National Insurance Contributions (“NICs”) for the years 1953 to 1977. HMRC’s case is that Mr Allan was not permitted to make these late payments because he had failed to exercise the requisite due care and diligence. Mr Allan contends that there was no such failure. The facts[2]This case is set against the background of the early years of the National Insurance (“NI”) scheme which began n 5 July 1948. In outline, the scheme worked as follows(1) All men of working age, and some women, were in the NI scheme, and had an NI card.(2) The cards were renewed once a year. In order to spread the burden of renewals, the working population was divided into four groups, each with a different “Contribution Year”.(3) Employees’ cards were held by their employer, who deducted the appropriate NICs from weekly wages, stamped the card, and paid over the contributions.(4) At the end of each Contribution Year the employer asked the employee to insert his address on the card and sign it; the employer then sent the card to the Department and obtained a new card in its place.(5) The details from the cards were transcribed onto the individual’s form RF1A, which provided a record of his contributions, and the cards were then destroyed.(6) When the individual moved employments, he normally took the card with him and gave it to his new employer.[3]Much of HMRC’s case rests on establishing the extent of Mr Allan’s knowledge of the NI scheme in these early years. It is thus it is necessary to establish, so far as possible, whether Mr Allan saw his NI cards and if so, how often; what was on any cards he did see, and the extent of his general knowledge of the scheme.[4]With this in mind, I find the following facts.[5]Mr Allan was born on 26 April 1931. He began work before the inception of the NI scheme. Instead, he paid contributions to an “Approved Society”. When the scheme began in 1948, Mr Allan’s contribution record was automatically transferred to the scheme. He did not need to register in person and so never applied for an NI card.[6]The Tribunal was provided with a specimen NI card for the Contribution Year 6 June 1949 to 4 June 1950. In the bottom right hand corner is a section headed “There are Special Contribution Provisions for−” followed by a short list. This does not include any reference to “Men who go abroad”.[7]On 21 July 1949, shortly after Mr Allan’s eighteenth birthday, he was called up for National Service and posted to Malaya, a country which was, as he puts it, “in the throes of an emergency - communist terrorist insurrection”.[8]HMRC say he would have been required to collect his NI card when he left his employer and give it to the army, his new employer. Mr Allan has no recollection of handing over the card. However, little turns on this, as the card in question made no mention of any special provisions applying to men who go abroad.[9]Mr Allan says, and I accept, that he was not required to sign the card while he was on active service in Malaya. In any event no specimen card was provided to the Tribunal for the 1950-51 Contribution Year.[10]Mr Allan was discharged in August 1951 after two years in the army. He took a week’s holiday and then returned to his former employer in Glasgow. HMRC say that Mr Allan would have given a stamped card for the 1951-2 Contribution Year, which he then handed to his employer. For his part Mr Allan has no recollection of receiving this card, and suggests his employer may have obtained it directly from the army.[11]The specimen card provided to the Tribunal for 1951-52 has the same heading:
“There are Special Contribution Provisions for−” in the bottom right hand corner, but there is now an additional line at the bottom of the list, which reads: “Men who go abroad - see leaflet N.I.138”
. Leaflet N.I.138 is the leaflet which explains Class 3 voluntary contributions provisions.[12]I have to weigh Mr Allan’s statement that he did not receive this card against HMRC’s description of the process that would have been followed when a soldier was demobbed. I note that HMRC’s statements as to how he obtained this card have changed over time:(1) In the letter to Mr Allan, dated 6 March 2008, HMRC say it was the army which “will have provided” Mr Allan with a stamped card to give to his next employer.(2) On 7 October 2008 this has become more certain: the army “provided” Mr Allan with the card.(3) The “Background” section of the HMRC Statement of Case corrects this and says the Department’s Contribution Branch HMF Section would have been informed of Mr Allan’s discharge from the army, and an NI card “would have been sent to his current home address”.(4) In the “Respondents’ Contentions” part of the same Statement of Case HMRC say, less precisely, that “arrangements would have been made” for a card to be issued to Mr Allan.[13]HMRC have not provided the Tribunal with any documents other than the letters and statements set out above. I thus find that neither party has reliable evidence, and make no finding as to whether the card was provided to Mr Allan or sent directly to his employer.[14]Because of his week’s holiday, Mr Allan made only 51 out of 52 contributions for the 1951-52 Contribution Year. HMRC’s contemporaneous records show that he was sent a “Statement” to that effect by the Department.[15]Mr Allan was employed by the same employer during the rest of that Contribution Year, and for the whole of the 1952-53 Contribution Year. The Tribunal was not provided with a specimen card for 1952-53, but only for the preceding and following years. Both of these contain the “men who go abroad” sentence, and on that basis I find that the same paragraph was included on the 1952-53 card.[16]Since Mr Allan was in employment at the end of the 1951-52 and 1952-53 Contribution Years, I find that, in accordance with the rules of the NI scheme, he signed his NI cards in June 1952 and June 1953, and that both cards included the reference to Leaflet N.I.138.[17]In relation to signing the card, Mr Allan says:
“There was no formality on this, just something along the lines of ‘here sign this and put in your address (or, we’ve done it for you) and here’s your pay packet.’ ‘Yes sir, thank you sir.’”
[18]In August 1953 Mr Allan left his employment. The specimen NI card for 1953-54 included the “men who go abroad” note. It also gives the following instructions to the employer:
“ When an employee leaves your employment you must return the card to him stamped up to date. If, for any reason, you cannot return his card to him, send it to the nearest local National Insurance Office, with a note explaining the circumstances.”
[19]Mr Allan says that, when he left his job in Glasgow, his employer did not return the card to him and he assumes therefore that it was returned to the Department after his departure. HMRC do not directly challenge this evidence, saying only:
“An employer was responsible for the care of the card until it was returned to the person (usually on termination of employment), or delivered to the Local Office at the end of the Contribution Year. Where the card was returned to the person by the employer it was their responsibility to surrender the card to their Local Office.”
[20]On this issue I accept Mr Allan’s evidence, and find as a fact that he did not see the card at the end of his employment. In so finding I note that there was no reason for Mr Allan to take the card, as it was irrelevant to his new overseas assignment. Furthermore, his employer was in regular contact with the Department and the card gives clear instructions to employers as to what to do with cards remaining in their possession.[21]Mr Allan’s new employer was HM Overseas Colonial Service (“HMOCS”), and he was recruited to serve in the Kenya Police Force during the Mau Mau uprising. He says “it was a bloody and barbarous campaign…suffice to say the last thing on my mind was the UK National Insurance Scheme.”[22]Mr Allan remained employed by HMOCS until May 1968, when he moved to South Africa. At some time around 1979 he contacted HMRC and asked to pay voluntary Class 3 contributions. Under the regulations which were current at that time he was allowed to make up contributions for the 1977-78 and 1978-79 tax years. He continued to pay voluntary contributions until 5 April 1996, when he reached state pension age. Because he has an incomplete contribution record, his basic state pension is reduced.[23]In 2007 Mr Allan became aware that the rules of the NI scheme might allow him to make backdated contributions for his missing years. On 16 November 2007 he wrote to HMRC asking to make these contributions, so he could receive a full basic state pension. On 7 October 2008 HMRC refused his request, and on 29 October 2008 Mr Allan made a formal appeal against this decision.[24]Almost a year later, on 12 October 2009, Mr Allan wrote to HMRC asking about the progress of his appeal. HMRC replied on 17 November, apologising that his papers had been “unfortunately and inadvertently misfiled”, but rejecting his appeal. The form RF1A[25]The HMRC bundle included a copy of Mr Allan’s contemporaneous RF1A card, which recorded his contributions. The entries on his card caused some confusion, and I thus deal with them as a separate issue.[26]The RF1A card includes a column headed “contribution card issued”. On Mr Allan’s card, the entries in this column are as follows:(1) For 1949-50, the entry is 2/10/50(2) For 1950-51 the entry is “NO”.(3) For 1951-52, the entry is “29/7/52” followed in the Notes column by the word “Statement”.(4) For 1952-3 the entry is again “NO”.(5) For 1953-54 and subsequent years, the entry is “NO”.[27]Mr Allan, very reasonably given the column heading, understood this column to be recording the issuance of his annual NI card, and thus as indicating that no card was issued for years where a “NO” entry appears.[28]HMRC’s bundle also includes a helpful document entitled “Explanation of Entries on Form RF1A”. This states that column’s purpose is to record where “a contribution notice was issued, for example because of a deficiency, the type of notice and date of issue is entered in abbreviated form.”[29]This solves the puzzle of why the dates in the column are subsequent to the year in question, whereas NI cards would normally be sent out at the beginning of each Contribution Year. For example, the column states that a “contribution card” was issued on 29 July 1952 (well after 1 June, the end of Mr Allan’s 1951-52 Contribution Year) and next to it is written “Statement”. These entries record, not the issue of an NI card, but of a Statement of deficiency - because, as explained earlier, Mr Allan took a week’s holiday after being demobbed, with the result that only 51 contributions were recorded for that Contribution Year instead of the full 52.[30]The RF1A form thus does not provide evidence that no card was issued in the years marked “NO”. Rather, as contributions were recorded on the RF1A for the years in question, I find that cards were in existence from 1948 through to 1953. The statutory test[31]The NI regulations have always allowed limited backdating of contributions. For most of the period under consideration, backdating was permitted for a six year period, although for part of the time only a two year backdating was allowed. These backdating rules are not at issue in this appeal.[32]The relevant provisions in Mr Allan’s case are the Social Security (Contributions) Regulations 2001, Regulation 50 and the Social Security (Crediting and Treatment of Contributions and National Insurance Numbers) Regulations 2001, Regulation 6 (“SI 2001/769”). The former [1] says:(1) If— (a) a person (“the contributor”)— (i) was entitled to pay a Class 3 contribution under regulation 48, 146(2)(b) or 147; and (ii) failed to pay that contribution in the appropriate period specified for its payment; and (b) the condition in paragraph (2) is satisfied, the contributor may pay the contribution within such further period as an officer of the Board may direct.(2) The condition is that an officer of the Board is satisfied that— (a) the failure to pay is attributable to the contributor's ignorance or error; and (b) that ignorance or error was not the result of the contributor's failure to exercise due care and diligence.[33]SI 2001/769 reg 6 reads as follows: (1) In the case of a contribution paid by or in respect of a person after the due date, where— (a) the contribution is paid after the time when it would, under regulation 4 or 5 above, have been treated as paid for the purpose of entitlement to contributory benefit; and (b) it is shown to the satisfaction of the Inland Revenue that the failure to pay the contribution before that time is attributable to ignorance or error on the part of that person or the person making the payment and that that ignorance or error was not due to any failure on the part of such person to exercise due care and diligence, the Inland Revenue may direct that, for the purposes of those regulations, the contribution shall be treated as paid on such earlier day as the Inland Revenue may consider appropriate in the circumstances, and those regulations shall have effect subject to any such direction. …[34]The tests in regs 50(2) and 6(1)(b) are identical. The parties agree that Mr Allan's failure to pay Class 3 contributions was attributable to “ignorance or error”; the issue before the Tribunal is whether his ignorance or error was due to any failure on his part to exercise “due care and diligence”. Mr Allan’s submissions[35]Mr Allan submitted that he could not exercise due care and diligence to acquaint himself with a matter he did not know existed. His knowledge of the NI scheme before he left the UK was limited, and he had no reason to think he could continue to make contributions after he left to work overseas. He had no recollection of seeing what he calls “the terse line” at the bottom of the NI card which referred to “men who go abroad”.[36]He first discovered he could pay voluntary contributions in 1979, and made contact with the Department in that year; he was not then informed that there was any possibility of making contributions for earlier years other than the two immediately preceding his request.[37]He has become aware in the course of these proceedings of a document informing those in overseas Crown service of the right to pay voluntary Class 3 contributions, but had not previously had sight of it.[38]He was also unaware, until 2007, of a telegram dated 15 August 1948 from the Secretary of State for the Colonies to the colonial administration in Kenya. The telegram asked that details of the availability of the NI scheme be given to those working abroad. In 1968 further information about the scheme was disseminated to those still in government service overseas, but Mr Allan had left HMOCS by that stage, and he says that this information was not communicated to former employees. Mr Allan first became aware of the 1948 telegram and the 1968 information in 2007, the year he asked for reinstatement of the missing years.[39]Mr Allan submits that as the government (in the form of HMOCS) was his employer, it had a duty of care towards him, and its failure to provide him with information about voluntary Class 3 payments was a breach of that duty. This claim is, however, outwith the jurisdiction of this Tribunal.[40]Finally, Mr Allan asks the Tribunal, should he succeed in his appeal, to direct HMRC as to the mechanics of payment and collection. HMRC’s submissions[41]HMRC’s submissions can be summarised as follows:(1) Mr Allan did nothing, and doing nothing cannot be the exercise of due care and diligence.(2) Mr Allan was aware of the contributory provisions of the NI scheme because he registered for NI and paid contributions before he went overseas. He must have been in possession of an NI card on at least one occasion and must therefore have seen the reference to “men who go abroad” and should have asked for leaflet N.I.138; his failure to do so demonstrates his lack of care and diligence.(3) It was Mr Allan’s responsibility to inform the Department about his departure abroad and to enquire how he could maintain his NI record while he was there, and he made no such enquiries.[42]It is not part of HMRC’s case that Mr Allan was informed about the possibility of paying voluntary contributions after he left the UK and before he made contact with the Department in 1979.[43]HMRC provided the Tribunal with a number of helpful case law authorities, namely a brief extract from Social Security Commissioner’s decision R(G) 1/79 (paragraphs 9 to part of paragraph 11 only); a note of a case involving a Mr X’s appeal in relation to contributions for the years 1948 to 1979 (unreferenced); Bernard David James Walsh v Secretary of State for Social Security [1994] (unreported); Mrs Adedolapo Fehinola Adojutelegan v Derek Clark (Officer of the Board) SpC 430 (“ Adojutelegan”) , Rose v HMRC SpC (2006) (“ Rose” ) and Kearney v HMRC [2010] EWCA Civ 288 (“ Kearney ” ) . Consideration of the case law[44]Although I reviewed all the cases put forward by HMRC in coming to my decision, I have been guided in particular by the recent Court of Appeal decision in Kearney .[45]I also considered the recent decision of this Tribunal in Goldsack v Revenue and Customs Commissioners [2010] UKFTT 530 (TC) (“ Goldsack” ), where the facts are similar to Mr Allan’s and which also followed Kearney . The case law before Kearney[46]In assessing whether the various Appellants had “exercised due care and diligence”, the earlier cases stress that “doing nothing is not the exercise of due care and diligence” as Dr Avery Jones put it in Adojutelegan. He said of the Appellant:
“If she had never heard of National Insurance I would readily agree that it could not be said that she had failed to exercise due care and diligence if she had made no enquiries about it. However, she was not ignorant about the existence of the NI scheme and must have known the basic principle that benefits were in some way related to contributions… Doing nothing is not the exercise of due care and diligence. Had she made an enquiry she would have been told there was a six-year time limit for paying contributions. Her ignorance of this was due to her failure to make enquiries, which is a failure to exercise due care and diligence.”
[47]However, this principle was subsequently modified in Kearney , as discussed further below. I also note that these cases were all decided in the context of very different factual matrices from Kearney , Goldsack or Mr Allan’s case. Specifically: (1) The decision in Walsh concerned an individual, working in the UK, who had omitted to stamp his card for nine years - although he was fully aware of the obligation to do so - because:
“…he went on holiday with his family. When he came back the insurance card was not to be found (not that he sought to find it) because it had fallen down behind one of the drawers in his desk and could not be seen.” [2] (2) In Adojutelegan the Appellant arrived in the UK from Nigeria in 1961 and returned there in 1969. During her time in the UK she was paid or was credited with Class 1 NICs. In September 1962 she exercised her right as a married woman and chose not to pay contributions. That election was cancelled a few days later. In 1968 she again exercised her right as a married woman and chose not to pay contributions. She made claims for sickness benefit and maternity benefit. Judge Avery Jones found that, given her knowledge of the NI system, her failure to make enquiries about Class 3 Contributions was a failure to exercise due care and diligence. (3) In Rose, Judge Williams found at [48] that: “Dr Rose was aware at the time of his choices, or at least he would have been aware of them had he read the leaflets he was sent and had he made the reasonable enquiries that those leaflets should have prompted.”
[48]One of the conclusions of the Court of Appeal in Kearney is that decisions as to whether an Appellant exercised due care and diligence in the context of the test set out in these regulations must be considered “on a case by case basis”. I thus find that the factual differences between these earlier decisions and Mr Allan’s situation means they are likely to be of limited assistance. The Kearney case[49]The background to Kearney is set out in the headnote:
“The contributor worked as a police officer in Palestine in 1947 and 1948. In 1948, he returned to the United Kingdom , and worked in London for two months, just after the introduction, in July 1948, of the national insurance scheme. Later in 1948 he went to Kenya , where he worked for many years as a police officer. Whilst in Kenya , he was not obliged to pay national insurance contributions ('NICs') and did not make any voluntary Class 3 contributions. Many years later, he applied for an extension of time in which to make voluntary Class 3 contributions for the period 1948 to 1965. The Revenue refused that request.”
[50]Following the earlier authorities, HMRC’s Counsel in the case, Mr Nawbatt, submitted at [32] that:
“if a contributor has knowledge of the scheme, he comes under an obligation to make enquiries about the consequences of going abroad if he goes abroad or alternatively to notify the NICO of his whereabouts…In other words, on Mr Nawbatt's submission, the contributor has to do something and doing nothing is not the exercise of due care and diligence”
[51]However, Mr Nawbatt modified this submission in the course of his argument, accepting at [33] that HMRC should follow the process set out in their Guidance Manual, namely to consider:
“( i) the steps the contributor made to maintain their contribution record, (ii) any previous warnings about the consequences of late payment, and (iii) their ability to understand their obligation to pay NICs giving consideration to their age, health and intelligence.”

Lady Justice Arden said at [34] that:

“this guidance reflects the correct approach, which is to treat all relevant circumstances as factors which have to be balanced together to reach an assessment or evaluation on a case-by-case basis as to whether due care and diligence was exercised and, if not, whether the failure was the cause of the contributor’s ignorance.”
[53]She gave some guidance on the relevant factors at [35] to [37]:
“I do not think it is possible to produce a definitive list of relevant factors. However, they would include the contributor’s age and any relevant physical disability or incapacitation. Thus Mr Nawbatt accepted that a 19-year-old student might be in a stronger position to show that he had exercised due care and diligence when he took no action to pay contributions than an older person in employment.... Knowledge of the NIC scheme is also likely to be a very important factor, but it may have to be established what the source of his knowledge was and generally the degree of knowledge. Moreover, there cannot logically be an absolute rule that, if the contributor has knowledge of the existence of some aspect of the NIC scheme, he can never show that he exercised due care and diligence unless he made further enquiries about his rights or obligations. It must, as the judge recognised, all depend on the circumstances. Nonetheless, it will be an unusual case in which a person is able to show that, while he made no contributions even after learning the basic features of the NIC scheme, he nonetheless exercised due care and diligence. The decision-maker also has to look at the circumstances as they stood at the time. People can now be expected in many parts of the world to have access to the internet or to mobile phones, but that would not have been the position in the 1960s.”
[54]In relation to Mr Kearney, she says at [52] that:
“ When he was in the United Kingdom in 1948, Mr Kearney was only nineteen years old. His stay in United Kingdom was very short. Thereafter he worked continuously abroad. While overseas in both Palestine and Kenya , he was occupied with serious insurrection: in those circumstances his knowledge of the NIC scheme before he left for Kenya might, due to no culpable error on his part, have completely gone out of his mind.”

Decision

[55]As a result of the decision in Kearney , HMRC’s submission that Mr Allan’s failure to act means he had not exercised due care and diligence cannot stand. Lady Justice Arden makes it clear that mere failure to act does not decide the matter. Instead, the Tribunal has to balance the relevant circumstances and then assess whether or not Mr Allan exercised due care and diligence.[56]One of these relevant circumstances is whether, as HMRC submit, Mr Allan should have been on notice that there were special provisions relating to men working abroad, because this was referred to on his NI card.[57]On the facts as found, the only occasions on which Mr Allan definitely saw an NI card with the reference to “men who go abroad” were when he signed the 1951-52 and 1952-53 cards in June 1952 and June 1953. In assessing whether he acted with due care and diligence in failing to remember this note on the card, it is relevant that he saw it for a brief moment only; moreover he did so in order to check his employer had it correctly stamped the card, and to insert or confirm his address - not to read the small print.[58]I find that Mr Allan’s failure to take action following fleeting glimpses of a cursory reference to a Departmental leaflet does not constitute a lack of due care and diligence.[59]It is also relevant to consider whether, as HMRC submit is the case, Mr Allan had adequate knowledge of the NI scheme. In considering this point I am mindful of

Lady Justice Arden’s warning that:

“It will be an unusual case in which a person is able to show that, while he made no contributions even after learning the basic features of the NIC scheme, he nonetheless exercised due care and diligence.”
[60]I find Mr Allan had knowledge of the NI scheme, but his knowledge was extremely limited. He signed his card on two occasions, and received a deficiency Statement in 1952. His card may, or may not, have passed through his hands on its way to and from the army. There is no evidence that he was given any information by the Department, by his UK employer, by the army, or by HMOCS, which would have alerted him to the fact that he could still contribute on a voluntary basis to the NI scheme when no longer working in the UK.[61]I must also consider other relevant factors, as Lady Justice Arden did in Kearney . Although Mr Allan was 22 when he left the UK for Kenya, and thus older than Mr Kearney, for two of those years he was overseas in the armed forces. When he left the UK, still a very young man, he was, like Mr Kearney, “occupied with serious insurrection” in Kenya - as indeed he had previously been in Malaya. As he says “suffice it to say the last thing on my mind then, was the UK National Insurances scheme.” This is the context against which his alleged lack of due care and diligence must be judged.[62]In Goldsack,

Judge Poole said that the Appellant:

“failed to follow up an obscure note on the back of his previous NI contribution cards (which he may or may not even have read, and which was certainly not couched in terms likely to attract attention to its potential importance) and he failed to apply his mind generally to the question of whether there was anything he should be doing in relation to the making of NI contributions while he was abroad. Did this amount to a failure on his part to exercise due care and diligence? In our view, in the circumstances outlined to us, it did not.”
[63]The relevant circumstances in Mr Allan’s case are of course different from those in Goldsack , but my conclusion is the same and I allow the appeal.[64]Mr Allan asked the Tribunal to rule on the mechanics of payment and collection, but on this I make no direction, leaving it instead for HMRC to implement this decision in accordance with the regulations. However, in view of Mr Allan’s advanced age, and the one year delay already caused to the progress of his case by HMRC’s earlier loss of his appeal papers, I ask that his application be handled with alacrity. In saying this I do not, of course, seek to trespass in any way on HMRC’s rights of appeal.[65]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. 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. Anne Redston TRIBUNAL CHAIR RELEASE DATE: 11 FEBRUARY 2011 [1] This regulation replaced the earlier SI 1969/1696 reg 32, but without changing the legal test. [2] At page 6 of the typescript.

Cited in 1 later judgment