Winchester City Council v The Commissioners for HMRC [2026] UKFTT 953 (TC)

[2026] UKFTT 00953 (TC)Case No TC 09928
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 19 May 2026Date Judgment date: 24 June 2026
By remote video hearing]
Appeal reference: TC/2025/02860
VAT – successive claims – when is a new claim valid
Before
TRIBUNAL JUDGE HARRISON
Between
WINCHESTER CITY COUNCILAppellantTHE COMMISSIONERS FOR HER MAJESTY’S REVENUE AND CUSTOMSRespondentLeslie Allen of Counsel for AppellantHeather Sercombe, litigator of HM Revenue and Customs’ Solicitor’s Office for RespondentsDECISION

Introduction

[1]With the consent of the parties, the hearing took place by video using the Microsoft Teams platform.[2]The hearing was attended by James Boulton and Neil Aitken of Winchester City Council (“WCC”) and Rennie Fabikun of Her Majesty’s Revenue & Customs (“HMRC”). Mr Boulton provided a witness statement in advance of the hearing. His evidence was unchallenged.[3]The Tribunal was assisted by a 139-page bundle, a HMRC skeleton argument (of 14 pages) and a WCC skeleton argument (of two pages).[4]During the hearing HMRC told the Tribunal that they were unable to comment on WCC’s submission that the 27 May 2025 claim had been submitted on time. With the consent of the parties the Tribunal accepted written submissions on this point, which were received on 8 June 2026 from HMRC and on 11 June 2026 from Winchester City Council.[5]Prior notice of the hearing had been published on the gov.uk website, with information about how representatives of the media or members of the public could apply to join the hearing remotely in order to observe the proceedings. As such, the hearing was held in public.

FACTS

[6]WCC applied to the Tribunal for permission to commence a late appeal against the refusal of a claim for overpaid VAT in respect of disabled facilities grant administration fees. WCC’s appeals relate to three different periods:(a) April 2023 to April 2025: Both HMRC and WCC agree the appeal for these periods has been made in time. Therefore the Tribunal has not considered it any further.(b) May 2021 to March 2023 (the “Relevant Periods”): These periods are the subject of the present application.(c) May 2019 to April 2021: WCC confirmed during the hearing that it was not asking the Tribunal to exercise its discretion to allow WCC to appeal these periods late. Therefore this part of the appeal is treated as withdrawn.[7]On 31 May 2023 WCC made a claim for overpaid VAT which covered the Relevant Periods. This claim was submitted by Mr Boulton’s predecessor and stated that:
“Winchester City Council is writing to lodge a claim for the treatment of Disabled Facility Grant administration fees to be treated as exempt from VAT.”
[8]On 15 August 2024, HMRC rejected this claim.[9]WCC did not take any steps to appeal the rejection of the 31 May 2023 claim. Mr Boulton told the Tribunal that he did not know why no appeal had been made.[10]On 27 May 2025, Mr Boulton (who was unaware of the previous claim) made a claim for overpaid VAT on behalf of WCC. This covered the periods May 2019 to March 2023, including the Relevant Periods. This claim stated that:
“The Council currently treats these administration fees as liable to VAT at the standard rate. However I believe the fees should have been treated as either exempt from VAT as a welfare service, or outside the scope of VAT as the Council is acting in its non-business capacity.”
[11]On 15 July 2025, HMRC rejected the 27 May 2025 claim for the Relevant Periods on the basis that an earlier claim had been made for the Relevant Periods.[12]On 15 July 2025 WCC appealed to the Tribunal.

PARTIES ARGUMENTS

[13]The Tribunal must determine whether the claim made on 27 May 2025 is a valid claim under section 80 Value Added Taxes Act 1994 (“VATA 1994”), or whether it is to be treated as an impermissible repeat claim or an abuse of process.[14]WCC argues that:(a) The claim made on 27 May 2025 was a valid claim under section 80 VATA 1994. As a result, HMRC were incorrect to reject it.(b) Section 80 VATA 1994 permits claims made within the 4 year statutory time limit and does not prevent a further claim where an earlier claim has simply been rejected by HMRC.(c) No appeal was submitted in respect of the 27 May 2025 claim. As a result, there has been no court determination or statutory agreement which would prevent a second claim being made. WCC relies on Hayward Gill & Associates ([1998] VTD 15635).(d) The appeal against the 27 May 2025 claim was submitted on time.[15]HMRC argues that:(a) The only valid claim made by WCC for the Relevant Periods is that 31 May 2023 claim.(b) As a result, WCC is appealing late, and following the principles in Martland v HMRC ([2018] UKUT 178 (TCC)) the Tribunal should not exercise its discretion to permit the appeal late.(c) The 27 May 2025 claim, is in substance, an attempt to circumvent (i) section 83G VATA 1994 (time limits for appeals); and (ii) the requirement to seek permission for a late appeal.(d) The 27 May 2025 claim is an abuse of process and undermines finality and legal certainty. As such, HMRC acted correctly in rejecting this claim.

The Law

[16]Section 80 VATA 1994 provides a statutory right to claim repayment of overpaid VAT within the applicable time limit (generally four years). There is no express prohibition in this section against making a second claim.

VAT cases regarding subsequent claims

[17]In Hayward Gill & Associates Ltd v Customs and Excise Commissioners ([1998] 8 WLUK 34), the VAT and Duties Tribunal held that section 80 VATA 1994 placed Customs under a statutory duty to repay overpaid tax. The principle of res judicata did not apply in the absence of adjudication by an independent authority. The claim had not been subject to a settlement or compromise, as no negotiations had taken place that could have formed the basis of a legally binding agreement and the appellant could not be estopped from recalculating the overpayment in the absence of a representation of fact and Customs had not suffered a detriment due to payment of the first claim.[18]Hayward Gill and the question of whether successive claims could be made in respect of interest was considered by the Court of Appeal in John Wilkins (Motor Engineers) Ltd v Revenue and Customs Commissioners ([2010] EWCA Civ 923). Paragraph 50 of this decision states:
“Thirdly, although there is nothing expressly stated in section 78 which precludes successive claims to interest, and although, critically, each case will turn on its own particular facts, the notion of a general right to make an unlimited series of claims (limited only by the three year limitation period), each giving rise to a “disputed decision” and a new right of appeal for the purpose of Rule 4 in respect of precisely the same VAT capital overpayment, does not seem consistent with a sensible statutory scheme for disposing of disputed claims in an efficient and timely manner.”
[19]John Wilkins was considered (in the context of subsequent claims under section 80 VATA) by the Upper Tribunal in Cambria Automobiles (South East) Ltd v Revenue and Customs Commissioners ([2021] UKFTT 406 (TC)) which stated that (paragraphs 21-23): “The Tribunal in Hayward Gill had held that on the face of the legislation was nothing preventing second or successive claims being made under section 80. However the Court of Appeal in John Wilkins imposed limitations on that right. Earlier in [74] Laws LJ commenting on a passage in Hayward Gill which states that it would not be open to a taxpayer to bring a second appeal based on the same facts, comments that he does not think it is clear whether in that passage the Tribunal meant to indicate the repeat claim with no new facts will be barred as a matter of jurisdiction or as a consequence of being abusive. In his view it was because they would be abusive. At [62] of John Wilkins , Sullivan LJ, who agreed with the judgment of Laws LJ, thought there was no reason why a claimant who had received an unfavourable letter in response to a claim should not be able to write again to HMRC restating the claim and seeking to explain, by reference, if appropriate, to further facts or to some more recently decided legal authority, why HMRC's letter was wrong. At [65] he went on to say that if repeat claims are permissible in principle, then there is no reason why they must be based on the emergence of some new fact which shows that the decision on the original claim was wrong and may not be based on a new decision of the court. "As Laws LJ says, a repeat claim which has nothing new to say whether factually or legally will be rejected by the Commissioners as abusive."[20]In finding that the second set of claims made by the taxpayer were not “repeat claims which have nothing new to say either factually or legally”, the Upper Tribunal in Cambria went on to say (at paragraph 24(5):
“It seems to me, too, that the hurdle which a claimant needs to overcome in justifying that a repeat claim says something new should be a low one.”

Abuse of process

[21]Abuse of process is generally thought of as a principle which applies where a claimant seeks to litigate an issue which could have been raised in previous proceedings (Henderson v Henderson (1843) 3 Hare 100).[22]In Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Lord Diplock explained that the purpose of the Court’s power to strike out proceedings on the basis of abuse of process was:
“… to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”
[23]Lord Diplock went on to note that “the circumstances in which abuse of process can arise are very varied” and that they should not be limited to fixed categories.[24]In relation to this category of abuse of process, Lord Bingham explained in Johnson v Gore Wood & Co [2001] 1 All ER 481 that:
“The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.”
[25]Lord Bingham confirmed Johnson v Gore Wood that in determining whether there had been an abuse of process, the Court should approach this by making:
“…a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not… It is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.”
[26]It is worth noting that, in Johnson v Gore Wood, Lord Millett observed that:
“It is one thing to refuse to allow a party to re-litigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon… [abuse of process] can be no more than a procedural rule based on the need to protect the process of the Court from abuse and the defendant from oppression.”
[27]It is for the party alleging abuse of process (in this case, HMRC) to establish that it is oppressive or an abuse of process for them to be subject to the second action (Johnson v Gore Wood).

Discussion and Decision

[28]The first question for the Tribunal to determine is whether the claim made on 27 May 2025 was a valid claim under section 80 VATA 1994. The Tribunal considers that it is a valid claim. The question is whether the second claim is merely repetitive, or whether it advances something new such that it is not abusive in principle.[29]The grounds of the 27 May 2025 claim are wider than the grounds of the original 31 May 2023 claim. The 31 May 2023 claim raised a single reason for why HMRC should repay the output VAT (that the supplies are exempt). The 27 May 2025 claim raises two arguments; either the supplies are exempt from VAT or outside the scope of VAT. A different legal characterisation of the same supplies is capable, in principle, of constituting something new for these purposes. As a result, the 27 May 2025 claim advances something materially new compared to the original 31 May 2023 claim. Given that the hurdle identified in Cambria is a low one, the Tribunal is satisfied that the additional legal basis advanced in the later claim is sufficient to meet that threshold.[30]In reaching this conclusion, the Tribunal acknowledges that both claims seek repayment of the same VAT and Mr Boulton did not know about the 31 May 2023 claim and so has not consciously sought to say something new either factually or legally. The absence of knowledge of the earlier claim does not affect the character of the later claim or its validity. In the Tribunal’s judgment the question whether a claim has something new to say is to be assessed by reference to the content of the claim, including both its factual and legal basis. The 27 May 2025 claim advances an additional and legally distinct basis, namely that the supplies fall outside the scope of VAT. That is not merely a reformulation of the earlier argument but introduces a different legal analysis.[31]This conclusion is reached on the particular facts of this case and should not be taken as endorsing the general permissibility of repeated claims raising no materially different basis. A claim which merely repeats an earlier claim without any material difference, whether in fact or law, is liable to be rejected as abusive. Had the later claim raised no materially different factual or legal basis, the Tribunal would have been likely to regard it as abusive.[32]The Tribunal draws support for this approach from Lord Millett’s comments in Johnson v Gore Wood & Co (see paragraph 26 above). This is a situation where the Tribunal is being asked to deny WCC the opportunity to litigate for the first time the question of how the administration fees should be treated for VAT purposes. The statutory scheme distinguishes between the making of a claim under section 80 and the bringing of an appeal against its rejection. The existence of time limits for appeals does not, of itself, preclude the making of a further claim within the statutory limitation period, subject to abuse of process principles. This is not a situation where the VAT treatment of the administration fees has been adjudicated by a court or Tribunal (or through a section 85 VATA 1994 agreement).[33]The Tribunal also considers this conclusion to be consistent with “broad, merits-based” approach described in Johnson v Gore Wood. While HMRC is correct to emphasise the importance of finality and legal certainty, the present case is not one in which the Tribunal’s processes have previously been invoked and misused. There have been no prior Tribunal proceedings in which the appellant failed to advance its case. Taking a broad, merits-based approach, and having regard to the absence of prior adjudication, the Tribunal is not satisfied that the making of the second claim is oppressive, unfair, or brings the administration of justice into disrepute.[34]The Tribunal does not accept HMRC’s submission that the second claim constitutes a circumvention of the statutory appeal time limits. The statutory scheme contemplates claims under section 80 as freestanding claims, and the authorities recognise that further claims may be made, subject to abuse principles. The present claim falls within that framework. A critical feature of this case is that the earlier claim was rejected administratively and has not been the subject of judicial determination. HMRC has not established that the claim is oppressive, unfair, or otherwise an improper use of the Tribunal’s process.[35]This conclusion is fact-specific. The Tribunal does not suggest that taxpayers are entitled to bring successive claims as a means of avoiding statutory time limits or re-litigating issues. Each case will depend on whether the later claim advances something materially different and is not abusive.[36]Drawing these strands together, the Tribunal is satisfied that the later claim is not barred either by principle or authority. This conclusion is consistent with the observations in John Wilkins that repeat claims are not excluded in principle but may be rejected where they are abusive. For those reasons, the Tribunal is satisfied that the later claim is permissible in principle and not barred as an abuse.[37]On the basis of the above, the Tribunal concludes that the claim made on 27 May 2025 is a valid claim under section 80 VATA 1994 and is not purely a repetitive claim. As a result, WCC’s appeal is in time. It is therefore unnecessary for the Tribunal to consider whether to admit the appeal late.

Conclusion

[38]Accordingly, the Tribunal concludes that the claim made on 27 May 2025 is a valid claim under section 80 VATA 1994. It is not a purely repetitive claim and does not constitute an abuse of process. HMRC has not discharged the burden of establishing that the claim is abusive.[39]The appeal is therefore allowed.

Right to apply for permission to appeal

[40]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. JUDGE JUDITH HARRISON TRIBUNAL JUDGE Release date: 24 June 2026