PO (by his Controller, CD) v The Commissioners For HMRC

PO was a farmer. This case concerns Landfill Tax in relation to the disposal of waste on his farm in Northern Ireland. PO was charged with environmental offences in relation to the disposal of waste. However, in the Crown Court, PO was found not fit to plead in relation to those offences. Subsequently to that, assessments for Landfill Tax were raised.

The issues in dispute in this appeal are:

The case concerns a disposal other than at a landfill site. The legislation was amended in 2018 to bring into charge such disposals, even if made before 1 April 2018. It does so by “treating” such a disposal to be made on 1 April 2018. There is a dispute between the parties as to whether, therefore, for the purpose of liability one looks at the mental state of the appellant at 1 April 2018 or when the waste was deposited on the land.

This decision necessarily discusses in detail the mental health of PO, including detailed discussions of suicidal ideation. The hearing was not held in private, but no person other than the parties and witnesses were present. At the end of the hearing, at my suggestion, Mr McNamee made an application that the decision be anonymised. HMRC indicated that they were neutral in relation to the application.

As no part of the hearing was in private, r.32(6) does not apply. The relevant principles are most recently set out in HMRC v Dettori [2024] UKUT 12 (TCC); [2024] STC 343. There is a very strong presumption in favour of open hearings and open justice and so against anonymisation. This is demonstrated by A v BBC [2014] UKSC 25 at [25]; Global Torch Ltd v Apex Global Management Ltd; Apex Global Management Ltd v Fi Call Ltd [2013] EWCA Civ 819 at [13] and HMRC v Banerjee (No 2) [2009] EWHC 1229 (Ch), [2009] STC 1930 at [35].

It is clear that the appellant is sensitive concerning his mental health, the evidence shows that he was reluctant to share details with his family and his GP. The appellant has suicidal ideations and there is the potential that publication of his detailed medical history could expose him to a real risk of self-harm, which would engage his Article 3 rights. Those rights are absolute and not subject to any balancing exercise. We have therefore decided to anonymise the appellant and (as it could enable him to be identified) his controller and make the order that is detailed at the end of the decision. Accordingly we consider that the order that appears at the end of the decision is in the interests of justice.

Even if we were wrong concerning Article 3, we consider that the detailed discussion of his mental health so strongly engages his Article 8 rights, that it outweighs the strong public interest in open justice and the Article 10 rights of the press. Accordingly the order that appears at the end of the decision would be in the interests of justice. The only redactions/restrictions are in respect of the identities of the appellant and his controller and the published decision fully sets out our reasoning and the facts on which we have based our decision. Accordingly, even if we were wrong in relation to Article 3, this limited restriction of open justice is proportionate to the legitimate aim of protecting the Article 8 rights of the appellant.

We have considered an authorities bundle of 112 pages and a hearing bundle of 239 pages in addition to the following that were handed up during the hearing:

In addition we had the benefit of skeleton arguments, notes on evidence, chronologies and written closings from both parties.

We heard live witness testimony in the following order:

We make the following general findings in relation to the witnesses’ testimony.

Mr Young was called as a witness of fact, not as an expert witness (no direction was applied for him to give expert evidence). He provided no witness statement but a report, which he adopted as his evidence in chief. We find his written report to lack detail and be largely assertive: it does not describe the methodology employed. It provides no details of any site visits, when they were conducted, and what was observed. Furthermore, on the face of the report it appeared contradictory: not explaining how it claimed 80 per cent of the waste was removed which did not appear to tally with the calculations in the report.

Mr Young elaborated in somewhat more detail in his oral evidence as to the methodology he employed. He referred to trial pits and the use of GPS. However he was vague as to what he actually did and where. In his closing submissions Mr McNamee suggested that Mr Young had followed Officer Blair’s measurements – we find no basis for that on the evidence. Similarly, in closing Mr McNamee mentioned that Mr Young’s report was filed at the last minute due to personal difficulties Mr Young was experiencing and that accounted for the lack of detail. Closing submissions are not to give evidence, and those submissions were not based on evidence. We place no weight on them.

We also note that Mr Young’s report, dated 7 July 2025, was based on inspections in June 2025. Accordingly it is of little assistance in determining what waste was located on the sites on 1 April 2018.

Overall, we did not find Mr Young an impressive witness. We approach his evidence with great caution.

We found CD to be a straightforward and honest witness who answered directly all the questions put to her. Several of those questions involved asking her who signed certain documents which bore her father’s signature. In response she stated that either (i) she signed the documents herself; or (ii) she got her father to put his name on the document, with her father not understanding the contents of the documents. HMRC say if this is to be believed she is not an honest person and therefore her evidence should be approached with caution. We do not accept HMRC’s argument on this point. Whilst we do not in any way wish to minimise the seriousness of these actions, viewing them in context we accept that she was doing what she thought was the best to “keep everything together” in the very difficult circumstances of her father’s illness. We do not consider it represents a dishonest nature. To the contrary, in admitting this it shows her honesty in seeking to present a full and honest account to the Tribunal.

Her choices were unwise and contrary to proper legal procedure – she should have sought to be her father’s controller at an earlier date. However, there is no suggestion that she acted for personal gain or with any intent to deceive for her own benefit. On the contrary, the evidence suggests that her overriding motivation was to ensure stability and continuity for her father and the family as a whole.

Her frankness in admitting these actions, and her willingness to explain the reasoning behind them, speaks in favour of her credibility. It shows she has not sought to hide or downplay what happened, even though it might cast her in an unfavourable light – and might even provide a potential cause of action against her. That openness is inconsistent with a person who is fundamentally dishonest. Instead, it reflects someone who made misguided decisions under difficult circumstances, not someone engaged in deception.

We also found both officers to be straightforward and honest witnesses. This is shown by how they answered directly all the questions put to them. They did so even when their answers were unfavourable to HMRC: for example Officer Moore admitted she had not seen the wind turbine when she visited the site.

We begin by making the following initial findings of fact to give context to other parts of the decision.

PO was a farmer, who has struggled for many years with severe mental health difficulties. In 1986 ownership of the farm was transferred to his wife – at about this time he was hospitalised in Purdysburn Hospital for mental health issues.

In 2008 PO’s wife passed away. This triggered a deterioration in his mental health.

On 29 May 2013 PO purchased a smaller farm adjoining the existing family farm. This was done to give his children the opportunity of living nearby. The purchase was subject to a charge by Northern Bank Limited.

On 1 December 2013 PO entered into a conacre agreement with John Ward. Conacre agreements are common in Northern Ireland. A conacre agreement is a form of licence agreement – not a lease – and so PD retained full rights of access to the land at all times. PO attended his family solicitors, M&M, to execute the agreement with another of his daughters (not CD). The agreement was provided to HMRC by M&M. The agreement is a genuine document. In the agreement Mr Ward is said to reside in Monaghan (a town in the Republic of Ireland). While HMRC have made enquiries with the local Garda Síochána they have not been able to trace Mr Ward. CD never met Mr Ward or had any dealings with him.

On 16 January 2014 PO purchased a JCB telehandler. This was bought to help move silage into the central feeding compartment for cattle on the farm. The purchase came from the farm account and was in the name of PO. However, the actual purchase was undertaken by CD.

On 25 February 2014 Officer Blair first inspected the property. He identified waste disposed at a number of locations:

On that occasion, Officer Blair did not meet with PO. He spoke to PO’s daughter who said that she did not know where he was. Officer Blair observed that the JCB telehandler, which was located in adjacent farm buildings, had round the wheels, bodywork and shovel small deposits of glass and plastic similar in nature to that found in the waste deposit.

Officer Moore has exhibited a form “SAF 1”, signed in the appellant’s name on 8 May 2014, for single farm payment. CD testified that she signed her father’s name and the form was filled in by a neighbour, Charlie, who worked at the Department of Agriculture, Environment and Rural Affairs (“DAERA”) and helped his neighbours with such forms. We accept this to be the case.

On 3 September 2014 Officer Blair re-visited the site. He found that the waste had been removed from the silage bay and the barn. He also noted the presence of the JCB telehandler and three other vehicles registered to PO. He also observed a pathway to the south of the site, made of crushed glass. The average depth of the waste is 0.5 metres with a 161m² surface area. The volume of disposed waste is therefore approximately 80.5m³.

On 7 November 2014 Officer Blair re-visited the site. He noted that approximately an additional 800m³ of shredded glass had been deposited in the gully. He also observed a pathway of crushed glass to the north of the site that leads to a wind turbine: this is shown in Figure 3 in the Appendix to this Decision. The average depth of the waste is 0.5 metres with a 895m² surface area. The volume of controlled waste is therefore approximately 447.5m³.

Mr McNamee suggested that it was logical that the pathway and the glass must have been placed there by those who built the wind turbine, which he said was Aircore. He put this to Mr Young and CD, neither of whom was able to say who was responsible for building the wind turbine. In any event, it would be a commercial bargain who was responsible for building an access route, presumably as part of the negotiation for building the wind turbine. We heard no evidence on this, although presumably there would have been commercial documentation that could have been made available. There was no suggestion that Aircore were given ownership of the land on which the path was built, so it would have remained owned by PO. Accordingly, we do not consider the fact that the path leads to the wind turbine necessarily means that PO did not makes the disposal of glass on the path, or knowingly cause or knowingly permit the disposal to be made

Officer Moore has exhibited a further form “SAF 1”, signed in the appellant’s name on 11 May 2015, for single farm payment. CD again testified that she signed her father’s name and the form was filled in by a neighbour, Charlie. We accept this to be the case.

Officer Moore also exhibited herd details she obtained from DAERA. These show PO and CD to be joint registered keepers of cattle found inside the sheds during the inspection on 7 November 2014.

On 23 October 2015 PO was arrested for environmental offences associated with the waste and interviewed under caution. He made no comment in interview. We find that due to his mental health he was unable to volunteer information.

In summer 2016 PO was seen privately by Dr Bindal, a consultant psychiatrist.

In November 2016 PO was examined by Dr Brasil, a consultant psychiatrist. We do not have a copy of this report.

On 6 December 2016 Dr Bunn examined the appellant for the first time.

On 19 January 2017 Dr Kelly examined the appellant.

In March 2017 PO was found unfit to plead by the Crown Court. The relevant test (as in England & Wales) is Pritchard. A person is not fit to plead if they cannot understand what they are accused of, understand the meaning of guilty or not guilty, follow what is happening in court or instruct counsel. The threshold is low: as long as the defendant can participate in a meaningful way, they are fit to plead.

On 19 October 2017 Dr Bunn re-examined PO for the purpose of his addendum report.

In March 2019 HMRC received the file from the NIEA.

On 2 August 2019 Officer Blair carried out a follow-up inspection and found the waste to remain on-site. The inspection was a visual inspection. The path to the wind turbine had been covered with white quarried stone. However at the edges of the path the crushed glass was still visible. This led Officer Blair to believe that the crushed glass was still beneath the quarried stone. We consider that a reasonable inference given the presence of the crushed glass to the side. That is at odds with the evidence of Mr Young, who does not mention the presence of any crushed glass at the side. We find Mr Young’s evidence unreliable for the reasons we have given. Accordingly, we find that the crushed glass was not removed and was below the quarried stone.

While CD’s witness statement says that “Much of the material referred to within this statement was removed by Mr John Ward and his associates from the premises prior to my father’s trial” it does not specify which material: it could easily refer to the material in the barn or silage bay. Nor do we know how she knew this, given that she never met Mr Ward.

On 22 July 2020, as HMRC were unable to speak to PO, HMRC issued a best judgement assessment against PO, under section 50A of the Finance Act 1996. There had, however, been significant correspondence between HMRC and M&M alluding to PO’s capacity and mental health.

On 7 June 2024 CD was appointed controller of PO, by order of the High Court of Northern Ireland, due to his mental incapacity. The reason for this was to allow HMRC to communicate with CD for these proceedings.

Liability to Landfill Tax is triggered by there being a “disposal” of waste. In this appeal, it is common ground that the waste was placed on the land in 2014 or before. Finance Act 1996 (“FA 1996”) was extensively amended by Schedule 12 to Finance Act 2018 (“FA 2018”). Paragraph 29(1) of Schedule 12 FA 2018 provides that:

“The amendments made by this Schedule have effect in relation to disposals that are made (or treated as made) on or after 1 April 2018.” [emphasis added]

Relevant to the disposals in this appeal is the deeming provision contained in paragraph 31(1) of Schedule 12 FA 2018:

“(1)

Where the Commissioners become aware of a disposal that—

(a)

has been made at a place other than a landfill site,

(b)

would, if made on or after 1 April 2018, require a permit or licence mentioned in subsection (4) of section 40 of FA 1996 (as that section has effect on that day), and

(c)

is not chargeable to tax apart from this paragraph,

the disposal is treated for the purposes of Part 3 of FA 1996 as having been made at that place on 1 April 2018.” [emphasis added]

Accordingly, it is common ground that the relevant provisions of FA 1996 are those in force on 1 April 2018.

Landfill Tax was introduced by Part III of FA 1996 (sections 39 to 71).

Section 40 FA 1996 sets out the circumstances in which the charge to Landfill Tax arises:

“40 Charge to Tax

(1)

Tax shall be charged on a taxable disposal made in England or Northern Ireland.

(2)

A taxable disposal takes place where material is disposed of and either—

(a)

the disposal is made at a landfill site (see subsection (4)), or

(b)

the disposal requires a permit or licence mentioned in subsection (4) but is not made at a landfill site.

(3)

For this purpose a disposal is made at a landfill site if the land on or under which it is made constitutes or falls within land which is a landfill site at the time of the disposal.

(4)

Land is a landfill site at a given time if at that time—

(a)

a permit under regulations made under—

(i)

section 2 of the Pollution Prevention and Control Act 1999, or

(ii)

Article 4 of the Environment (Northern Ireland) Order 2002 (S.I. 2002/3153 (N.I. 7)),

is in force in relation to the land and authorises deposits or disposals in or on the land,

(b)

a waste management licence issued under Part 2 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)) (waste on land) is in force in relation to the land and authorises deposits in or on the land, or

(c)

a licence under any provision for the time being having effect in Northern Ireland and corresponding to section 35 of the Environmental Protection Act 1990 (waste management licences) is in force in relation to the land and authorises disposals in or on the land.” [emphasis added]

It is common ground that the relevant land was not a landfill site. Therefore s 40(2)(b) FA 1996 is in issue.

Section 40A FA 1996 addresses when a “disposal” occurs, and relevantly stated:

“40A Disposals of material

(1)

For the purposes of this Part, there is a disposal of material if—

(a)

material is disposed of on the surface of land or on a structure set into the surface, or

(b)

material is disposed of under the surface of land.

(2)

For the purposes of subsection (1)(a) and (b) it does not matter whether the material is placed in a container before it is disposed of.

(3)

For the purposes of subsection (1)(b) it does not matter whether the material—

(a)

is covered after it is disposed of, or

(b)

is disposed of in a cavity (such as a cavern or mine).

(4)

If material is disposed of on the surface of land or on a structure set into the surface with a view to the material being covered, the disposal is to be treated as made when the material is disposed of and not when it is covered.

Section 41 FA 1996 determines the person who is liable to pay Landfill Tax on taxable disposals and relevantly stated:

“41 Liability to pay tax

…

(3)

A person is liable to pay tax charged on a taxable disposal not made at a landfill site if the person—

(a)

makes the disposal, or

(b)

knowingly causes or knowingly permits the disposal to be made.

(4)

Every such person is jointly and severally liable to pay the tax charged.

(5)

In the case of a taxable disposal not made at a landfill site, a person within subsection (6) or (7) is taken for the purposes of this Part to be a person who knowingly causes or knowingly permits the disposal to be made, unless it is shown to the satisfaction of the Commissioners that the person did not do so.

(6)

A person is within this subsection if, before the time of the disposal of the material in question, the person—

(a)

took any action with a view to the disposal of the material,

(b)

was party to a contract for the sale of the material, or

(c)

facilitated the transport or storage of the material.

(7)

A person is within this subsection if at the time of the disposal the person—

(a)

is the owner, or a lessee or occupier, of the land at which the disposal is made,

(b)

controls, or is able to control, a vehicle or trailer from which the disposal is made, or

(c)

is an officer of a body corporate or unincorporated association that is within subsection (3)(a) or (3)(b).” [emphasis added]

Section 42(1)(a) FA 1996 provided that Landfill Tax of £88.95 was payable for each whole tonne disposed of and a proportionately reduced sum was payable for any additional part of a tonne.

Regulation 44B of the Landfill Tax Regulations 1996 contains a series of rules to be applied in determining the weight of material disposed of at a place other than a landfill site.

Section 50A FA 1996 provides for a power to assess “unregistered persons” (of whom the Appellant was one). It states:

“50A Power to assess: unregistered persons

(1)

Where—

(a)

it appears to the Commissioners that a person is liable to pay tax on a taxable disposal, and

(b)

the person is not a registered person,

the Commissioners may assess the amount of tax due from the person to the best of their judgment and notify it to the person.

(2)

An assessment under this section must be accompanied by a notice—

(a)

identifying the land where the disposal was made;

(b)

indicating the date on which the disposal was made or treated as made, or the date on which (or period within which) the Commissioners believe it was made;

(c)

explaining why the Commissioners believe that the person to whom the notification is sent is liable to pay tax on the disposal;

(d)

describing the methods used to calculate the amount of tax, including the method used by the Commissioners to determine the weight of the material disposed of;

(e)

containing any other information prescribed by regulations.

(3)

An assessment under this section is not invalidated by any inaccuracy in the information given in the notice under subsection (2).

(4)

An assessment under this section—

(a)

may relate to more than one taxable disposal;

(b)

may relate to an unascertained number of taxable disposals;

(c)

may relate to taxable disposals at more than one location.

(5)

An assessment under this section shall not be made more than two years after evidence of facts, sufficient in the Commissioners’ opinion to justify the making of the assessment, comes to their knowledge. But where further such evidence comes to their knowledge after the making of an assessment under this section another assessment may be made under this section in addition to any earlier assessment.

(6)

Where an amount has been assessed and notified to a person under this section it shall be deemed to be an amount of tax due from the person and may be recovered accordingly unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced.”

Section 54 FA 1996 provides a right of appeal to the Tribunal against assessments to Landfill Tax. It relevantly states:

“54 Appeals

(1)

Subject to section 55, an appeal shall lie to an appeal tribunal from any person who is or will be affected by any of the following decisions—

…

(b)

a decision as to whether tax is chargeable in respect of a disposal or as to how much tax is chargeable;

…

(d)

a decision as to an assessment falling within subsection (2) below or as to the amount of such an assessment;

…

(2)

An assessment falls within this subsection if it is—

…

(b)

an assessment under section 50A.”

The parties disagree over when under the legislative framework PO must have (in the language of s 41(3) FA 1996) either (i) made the disposal, or (b) knowingly caused or knowingly permitted the disposal to be made.

Mr McNamee points to how s 41 FA 1996 was amended to impose liability on a person who makes a taxable disposal not made at a landfill site. He says that a disposal made at a non-landfill site prior to the amendments brought about by FA 2018 could not be a taxable disposal, because before April 2018 no such disposal was liable for tax.

Mr McNamee says there is no equivalence between physical deposit and disposal. For example a disposal may take place when a waste licence expires at a time long after the deposit of the material.

Accordingly Mr McNamee says that the date the Tribunal must consider is 1 April 2018 in considering PO’s capacity, to determine whether PO made, or knowingly caused/permitted the disposal.

HMRC say that this approach is not workable. To require an appellant to have a continuing state of mind on 1 April 2018 would render futile the provisions. HMRC concede that it is necessary for the waste still to be present on 1 April 2018. They say that is because of the reference to “has been made” (rather than “was made”) in paragraph 31(1) of Schedule 12 FA 2018.

We agree with HMRC. We consider that the legislation operates by creating a legal fiction that the disposal took place on 1 April 2018. However it does not go beyond that. Provided that the waste remains on the land on 1 April 2018 one looks at the circumstances of the actual disposal (which may be before 1 April 2018) to determine whether the appellant made, or knowingly caused/permitted the disposal.

That is clear from the language of paragraph 31(1) of Schedule 12 FA 2018. That refers to the disposal. If Mr McNamee were right it would render the deliberately retroactive nature of the legislation largely ineffective, as it would generally be necessary to point to conduct after 1 April 2018 to infer an intention to knowingly permit the disposal of material that was already on the land. We do not consider that the exceptional circumstance of a licence expiring provides significant guidance on the interpretation of the provision, as the more usual circumstance for a disposal is when it is placed in the land. That is clear from section 40A FA 1996.

We make the following findings with regard to PO’s capacity.

The appellant has a long history of mental-health difficulties. We have had the benefit of the reports outlined at [25(4)] above, in addition to the witness testimony of CD.

We consider it unfortunate that full GP records were not provided to the Tribunal that would have allowed a more granular assessment of his health: see HA (expert evidence, mental health) [2022] UKUT 111 (IAC).

It is clear beyond doubt to us that if the relevant date, as Mr McNamee submits, is 1 April 2018 the appellant must succeed, as the general trajectory of his mental state was downwards and he was held as not fit to plead in March 2017.

If the relevant date is, as HMRC assert and we find, in 2013/14 the situation is less free from doubt. However, looking at the evidence in the round we find, on the balance of probabilities, that PO was not involved in the management of the farm then as he lacked capacity and he also lacked capacity to (i) make the disposal of the waste, or (ii) knowingly cause or knowingly permit the disposal to be made.

We find that the present decline in the appellant’s mental state was brought about by his wife’s death in 2008. We consider it likely that by 2013/14 his mental health had declined to such a degree that he lacked capacity to (i) make the disposal of the waste, or (ii) knowingly cause or knowingly permit the disposal to be made. We expand on this below by reference to the evidence.

We note that the medical evidence was not prepared for this hearing, but for the criminal trial. Therefore the focus of the evidence is PO’s mental state when the trial was due to take place (2017). This is in some ways less helpful for our purposes – as it is less informative of his mental state in 2013/14. However, to the extent that it is informative of his mental health in 2013/14 we regard it as particularly reliable as the likelihood of feigning (reported) symptoms is low, as the tax investigation was not in contemplation and so there would have been no incentive to mis-report his mental state in 2013/14.

The appellant struggles to read (RB1 at [3.3]). In those circumstances it is perhaps unsurprising that the administration of running the farm was undertaken by the appellant’s wife and more recently by his daughter:

“Regarding the running of the farm the administrative capacity was undertaken by his wife and more recently by his daughter. He told me ‘I never started and never did it.’ He told me he had difficulty reading forms. Following his wife’s death he ‘has lost interest’ in the farm resulting in it being let out.”: RB1 §3.6

It is thus clear that PO was not active in the farm following his wife’s death in 2008. The effect of his wife’s death is also evidenced by the GP letter of 27 April 2016 which states, after considering various physical ailments:

“[PO] unfortunately was bereaved of his wife in recent years. She was a great support. He has suffered anxiety and withdrawal consequently. Due to the effects of his medical problems [PO] is disabled and restricted. Having assessed [PO] and taken account of his complaint and medical history I feel that his condition is such that he is unable for medical reasons to attend court on 9th May 2016.”

The GP report of 5 June 2016 states:

“[PO]’s late wife [M] was also a patient of our practice... She sadly died in recent years due to a distressing respiratory condition associated with a congenital condition also affecting other members of the family. She was a strong support for [PO] particularly with regard to his health but also to managing his administrative issues and providing support to the family members affected by the congenital condition. Her loss had a deep effect on [PO] and the whole family and he has suffered from depression and anxiety since that time. He has suffered stress associated with his own health, worries regarding the family members and his farm business and has had challenges in coping with it all.”

However, a limitation of these GP reports is that PO did not disclose his mental health when he went to see his GP. Dr Bunn’s report states:

“GP notes record that he was commenced on the antidepressant Fluoxetine in summer 2016. His family recognized that he was ‘not right/ They had been ‘at him’ for quite a while to see his GP but if he did attend his GP he did not disclose his difficulties. Despite the medication ‘there is no significant improvement.’ He could not tell me if the dose was increased.”: RB1 §5.2

The trigger for PO’s present mental illness was the death of his wife. Dr Bunn stated:

“On examination of [PO] and review of notes and records he has previously suffered from a depressive illness of sufficient severity to warrant his admission to hospital for psychiatric treatment in the late 1980’s. In my opinion there has been a recurrence of his depression following the death of his wife with similar somatic (physical) symptoms.” : RB1 §11.1

While PO started receiving medication in summer 2016, we infer his mental health difficulties began significantly earlier.

“[PO] described himself as a family man who worked hard. Following his wife’s death eight years ago he has become increasingly withdrawn and has no interest. He finds it hard to get out of the house. He has lost interest in life. He would not disclose any problems or difficulties to family.”: RB1 §8.1

HMRC rely on the following passage from Dr Kelly’s report:

“When I spoke with his daughter she relates that the beginning of his recent difficulties to the death of his wife in 2008. She describes that he became more withdrawn from then but has not been himself for the last one and a half years and getting worse particularly so in the last few months. He has come to live with her. Before that he was not washing, not dressing and not eating properly. He would also disappear for periods which concerned them. He has poor interest at the present time. Since he has come to live with his daughter he is eating better but requires prompting. He still attends with Dr Brazil and has a CPN and has been involved with the Home Treatment Team with a period of contact over four weeks. She describes there has been a marked change in his memory for the worse.”: CK §7.4

HMRC suggest that it is only since mid-2015 that PO “was not himself” and only particularly so “in the last few months”. However this is to take the passage out of context. The two preceding paragraphs discuss an acute and utter lack of comprehension. PO was “unable to remember a short phrase”. He also scored 0 out of 12 on the Information/Orientation section of the CAPE survey: in which he was unable to say who the Queen was or identify the colour of the Union Jack flag. Further, as already noted by Dr Bunn, PO would “not disclose any problems or difficulties to family”: RB1 §8.1.

Similarly, we note that the report of Dr Bunn states:

“She reported a gradual decline in his general functioning and that he has been struggling to remember things. She told me he is due a CT scan of brain. She opined that her father lost interest in life following the death of her mother and that although there had been a decline it did not become apparent until this summer.” : RB1 §9.4

Here “this summer” refers to summer 2016. However, this should again be contextualised by reference to the immediately previous discussion of PO “contemplating suicide”. We note also that Dr Bunn’s report quotes from Dr Bindal’s report (which we were not provided with) stating:

“Letter from Dr K Bindal, Consultant Psychiatrist. Dr Bindal records ‘[PO] gives a history of mental health problems for the past twenty years which has been getting worse recently. He feels very down in the dumps and has no self-esteem and no self-confidence.”: RB1 §10

HMRC suggested in oral submissions that recently must mean in the last year or so. We disagree. It should be contextualised by reference to the reference to “past twenty years” and so could plausibly include the period back to 2013/14.

We note also that Dr Bunn reviewed PO’s GP records. These record depression screening in March 2007, November 2008, January 2010 and September 2011. It is, however, unclear what the results of those screenings were.

In CD’s evidence she stated that her father had mental-health difficulties for a long time, as long as she could remember. He had been admitted to a mental-health hospital in the 1980s. He received disability living allowance at the higher rate since 1986. When asked about his mental-health around 2013/14, she said it was poor and he engaged in childlike behaviour needing her to help and assist him. For the previous 20 years her father had not understood documents. Therefore she had completed documents for him including accounts and tax returns. She had been signing documents for her father since 2008, when her mother died. Viewed against the evidence as a whole we consider that this is consistent with the overall medical evidence as a whole and we accept this account.

In his witness statement Officer Blair describes interviewing PO on 23 October 2015 where he says:

“The interview commenced at 1439hrs and I cautioned [PO] at 1441hrs and informed him of his rights. [PO] did not respond to the caution and remained motionless with his eyes closed, even after being shaken by his solicitor. I suspended the interview at 1444hrs and informed the Custody Sergeant on duty. The Custody Sergeant spoke with [PO] and his solicitor and they returned to the interview room a short time later.”

The lack of responsiveness to even being “shaken” by his solicitor, suggests PO was suffering from a significant loss of understanding in 2015.

With regard to the interview on 21 December 2015 Officer Blair says:

“A number of questions regarding this conacre agreement were put to [PO] during his interview under caution with regards to payment, contact details of Mr Ward and bank details. [PO] did not answer any of these questions.”

In the context of the overall evidence, we consider this was due to a lack of understanding caused by his illness.

We note also the following passages from the medical reports suggest an impaired ability of understanding.

“He also reports visual illusion/hallucinations, for example, he sees ‘black figures’. He told me ‘they are going by you’ all the time and has mentioned this to Dr Brasil. This occurs both day and night.”: RB1 §7.8

“As part of my examination I asked [PO] to complete a Montreal Cognitive Assessment. This is a screening tool for cognitive impairment. He scored 5 out of 30 which indicates severe cognitive impairment. A normal score would be >26.”: RB1 §8.3

“PO had no recollection of meeting me last December. He sat looking vague and monosyllabic throughout the course of the examination.”: RB2 §2.2

“With regard to cognition, I carried out the Information/Orientation section of the CAPE survey and he scored 0 items out of 12. Of interest he gave answers at times that were very approximate to the questions, for example when asked the name of the Queen he said Margaret, when asked the month he said February, when asked the colour of the Union Jack flag, blue and white.” CK §7.2

We, of course, accept that these all significantly post-date 2013/14. Clearly, such evidence is very likely to hold cogent value for a period very proximate to the assessment. The further back in time one goes the less persuasive it is when trying to assess understanding at that date. Nonetheless we consider these passages have significant value in assessing PO’s understanding in 2013/14, given that his illness was triggered by the death of his wife which occurred in 2008.

The various reports detail the following, concerning PO’s medication:

PO first suffered from suicidal ideation during his illness in the 1980s. A letter to his GP dated 5 February 1986 stated:

“He also told me in the recent past he has contemplated taking Paraquat and the only reason he did not commit such an act was for the sake of the children.” RB1

Paraquat is a highly toxic organic compound, widely used as a weed killer on farms.

Dr Bunn also records that:

“When asked he told me that life is ‘not really’ worth living. He denied a history of deliberate self-harm. He last thought of self-harm approximately a month ago. This related to ‘not being fit to get on with things.’ He would use a rope. He has no specific rope in mind for this purpose and has no specific place to hang himself.”: RB1 §7.6

“He was examined by Dr Brasil a few weeks ago and due to his concern was referred into the Home Treatment Team. This related to fears of suicide as he would ‘disappear off.’ The family were fearful of what he was going to do. On discussion with Dr Brasil it was evident that [PO] had been contemplating suicide.”: RB1 §9.2

This is also reflected in PO’s GP records:

“21.09.16

- Mental health assessment. Ongoing legal situation re. allegation re. misuse of land he owns for dumping. Inquired re. his referral to psychiatry. He has received no appointment. Says he could not cope with negative outcome and would ‘go for the blue rope/ Counselled re. wellbeing. No indication on discussion that actively planning self-harm and this appears” : RB1 §10.

“When asked if life is worth living, he told me ‘at times’; he can think too much. There are no recent thoughts of self-harm, suicide, harming others or violence.”: RB2 §7.2

8 November 2016 GP records note “intermittent thoughts of self-harm by hanging”: RB2 §8.5

Dr Bunn made the following diagnosis:

“In my opinion [PO] is currently evidencing symptoms of a severe depressive disorder with psychotic symptoms.”: RB1 §11.4.

“Specifically regarding the proceedings that are before the court and making reference to the Pritchard criteria, in my opinion [PO] is unfit. He presented as flat and blunted and his cognitive impairment renders him unfit; in my opinion he cannot follow proceedings or instruct counsel so as to give a proper defence.” : RB1 §11.5.

Dr Kelly made a similar diagnosis:

“Clinical diagnosis would appear to be that of a recurrence of a depressive disorder which is severe. This presents with clear cognitive and memory problems which could either be a pseudo dementia or the onset of dementia also.”

While we do not have Dr Bindle’s diagnosis Dr Kelly confirms that his diagnosis is “broadly in keeping” with that of Dr Bindle and Dr Bunn.

We accept PO owned the relevant land. The conacre agreement was a licence that did not alter ownership or PO’s rights of access/possession of the land. As such there is a rebuttable presumption that he knowingly caused or knowingly permitted the disposal to be made: ss 41(5) and 41(7)(a) FA 1996.

However, we find that he has rebutted this presumption by showing that he did not have the mental capacity to do this in 2013/14. This is shown by CD’s evidence of his childlike behaviour and his inability to understand documents at the time. We do not find her to be dishonest in her testimony: while we acknowledge that it is not in any way appropriate to sign documents in her father’s name as she did.

HMRC’s case is that PO’s capacity is shown from:

We accept therefore that CD was responsible for the above. We accept her testimony for the reasons set out above.

Similarly while it is plausible that the JCB telehandler may have been involved in the disposal, due to the traces of waste on it, we find that PO will have had no knowledge or involvement due to his illness.

We note that PO signed the conacre agreement when he was at his family solicitors, but with another daughter. We infer that he must have been assisted by that daughter in a similar way to which CD assisted him in relation to the farm business.

We therefore find on balance of probabilities that PO will have lacked capacity to knowingly cause or knowingly permit the disposal to be made (or to make the disposal) in 2013/14. We therefore allow the appeal.

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.

Unless and until the Tribunal, the Upper Tribunal, or a Court orders otherwise, pursuant to rules 2(1), 2(3), 5(2) and 14(b) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009, the appellant and his controller are granted anonymity in relation to these proceedings.

No-one shall publish or reveal either directly or indirectly any information, including their names or their addresses, that is likely to lead members of the public to identify them with these proceedings. Failure to comply with this order could amount to a contempt of court.

For the avoidance of doubt, this order does not prohibit the internal dissemination within HMRC of information acquired by the Revenue and Customs where such dissemination would otherwise be permitted by section 17 of the Commissioners for Revenue and Customs Act 2005, nor does it prohibit disclosure of information by Revenue and Customs officials which would otherwise be permitted under section 18 of the Commissioners for Revenue and Customs Act 2005.