ZM and AB v HMRC (TC) [2013] UKUT 0547 (AAC)- CTC/2335/2011 and CTC/2326/2011

29 November 2013

ZM and AB v HMRC (TC) [2013] UKUT 0547 (AAC)

These two cases arose when a couple tried on two separate occasions to claim tax credits. HMRC refused the claims on the grounds that the national insurance number (NINo) requirement was not met and notified them of a right of appeal. They duly appealed. HMRC then argued that the tribunal had no jurisdiction to consider the appeals because there was no right of appeal against a decision that a claim had not been validly made due to failure to meet the NINo requirement. The First-tier Tribunal struck out the appeals and the claimants have appealed against this decision to the Upper Tribunal.

On the facts of the case, the NINo requirement was met - one member of the couple was a person subject to immigration control because she required leave to enter or remain and did not have it and was therefore not required to provide a NINo or apply for one.

The Upper Tribunal gave judgment in this case on 5th November 2013.

The appeal was allowed. The Upper Tribunal decided that in cases where HMRC have decided that the NINo requirement is not met but there is an issue as to whether or not one of the claimants requires a NINo (people who are subject to immigration control because they are someone who requires leave to enter or remain but does not have it- ie most asylum seekers, illegal entrants or overstayers do not require a NINo), then Article 6 of the European Convention on Human Rights means that the tax credit legislation must be read so that there is a right of appeal to the First-tier Tribunal against this decision.

Note that the judgment does not extend to other issues that arise under the NINo requirement for tax credits (for example whether the claimant has an excuse for not providing a NINo)- in these other cases, it appears that the only remedy for the claimant will be to seek judicial review of the decision that they have not made a claim for tax credits because the NINo requirement is not met (although technically the judgment does not decide this as those were not the facts of the case, it is likely that this is the case).