Everill Hyre v Border Force

With the consent of the parties, the form of the hearing was a video hearing. A face-to-face hearing was not held because, in particular, Mr Hyre’s (Appellant) participation could better be facilitated through a remote hearing. The documents to which we were referred were contained in a documents’ bundle prepared by Border Force (BF). The bundle was not prepared in accordance with the terms of the direction which require that the bundle comply with the Tribunal’s practice direction on electronic bundles. The manner in which the bundle was prepared made the hearing more difficult than had the bundle been adequately prepared. The hearing bundle did not contain the relevant legislation. We were not provided with an authorities bundle.

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.

The appeal concerned a refusal to refund VAT, customs duty and fees (Import Charges)charged on audio equipment imported (Equipment) into the UK from Japan by the Appellant. The Import Charges were paid on the Equipment. The Appellant then sought a refund of the amounts paid on the basis that the Equipment qualified as “tv hearing aids – amplifiers and earpieces which may be connected to a TV set, radio or hi-fi to enable a person with hearing loss to hear the sound without turning up the volume.” BF rejected the claim on the basis, and following advice received from HM Revenue & Customs (HMRC), that the goods did not qualify for the relief claimed because the equipment was not designed solely for use by disabled people.

The Appellant has on several occasions prior to June 2024, imported amplifying equipment from Japan. On each occasion he has completed a declaration confirming himself as disabled and claimed refund of the Import Charges paid. On each such occasion the Import Charges were refunded to him.

On or about 26 June 2024 the Appellant imported the following three items of Equipmentinto the UK on which he paid the Import Charges:

Shortly after importation the Appellant applied for a full refund of the Import Charges. The claims were rejected by BF on 5 July 2024. The basis of the rejection was that having reviewed open source information concerning the Equipment and considered HMRC guidance: “Reliefs from VAT for disabled and older people (VAT Notice 701/7)” they had formed the view that the Equipment was not designed solely for use by disabled people and therefore did not qualify for either zero rating or import reliefs.

Following a request for a review of that decision BF contacted HMRC Charities, Savings and International 2 to obtain HMRC’s policy view as to the Appellant’s eligibility for relief. We did not see the request made to HMRC but were provided with HMRC’s response dated 25 July 2025. The response reiterated the terms on which relief is eligible for goods designed solely for disabled people. The email stated:

“I have looked online for the here items mentioned [the Equipment] and whilst all three of these items would help a person with impaired hearing, none of them have been designed solely for use by a disabled person. Therefore, I consider than none of the above items would qualify for VAT relief and would be subject to VAT at the standard rate.”

Despite receipt of that response BF failed to provide a formal response to the review within the statutory 45-day time limit. The original decision was therefore deemed upheld. The Appellant appealed the decision. The email of 25 July 2025 was, however provided to the Appellant.

Directions were issued by the Tribunal in standard form. Those directions required:

BF failed to comply with each of the directions relating to them until prompted to do so by the Tribunal. This led to the hearing bundle not being provided until 5 days (3 working days) before the hearing.

There has been much correspondence in relation to the matter. The majority of the correspondence sent on behalf of the Appellant was prepared and signed by Mr Nicholson as a Mackenzie’s Friend (i.e. someone supporting the Appellant but not formally representing him). The correspondence from Mr Nicolson was aggressive in tone and became increasingly so. The emails accused BF of criminality, corruption and lying.

On 7 August 2025 the Appellant contacted HMRC; he asked:

“I have served Court papers on Border Force, in Birmingham County Court Tax Appeal, because I was charged import duty fees, on amplifier's, by Border Force, when I bought amplifiers from Japan, which I use for my defective hearing, which is connected to my television, radio, hi fi, mobile phone, and alarms. I listen to the audio sound, from these amplifiers connected to the headphones. I have had full exemption on all of my amplifiers from HMRCcustomsaccountingrepayments@hmrc.gov.uk, when I shipped my amplifiers with couriers, FedEx, DHL, and UPS. My amplifier were shipped by Parcel Force. I have reclaimed all of my import duty fees, under which HMRC Reliefs from VAT for disabled and older people (VAT Notice 701/7), under paragraph 4.7Auditory training aids for deaf children and equipment to aid the hard of hearing. Border Force has said in their Court witness statement, that I am not exempted from import duty fees, because HMRC Charities Team sent them an email on 25 July 2025, stating that my amplifiers are not exempted from import duty fees. I am not a Charity organization.”

The same person as had emailed BF (as referred to in paragraph 7 above) responded to the Appellant. The response thanked the Appellant for his query “regarding the VAT liability of an amplifier which you use with headphones to connect to your TV, mobile phone and other electronic items to assist with your hearing loss.” The response set out the relevant paragraphs of Notice 701/7 highlighting the section on TV hearing aids. It confirmed that “You can claim relief and pay no Customs Duty or VAT on goods specially designed to adapted to assist disabled people … in carrying out everyday tasks” and explained how such duty and VAT could be reclaimed. It concluded “from the information you have provided, I consider that the amplifiers which you have imported do qualify for no customs duty or VAT.”

On 30 August 2025 Mr Nicholson indicated that an application for wasted costs would be made at the hearing due to what was claimed to be “contempt of court, spoilation of evidence, trying to pervert the course of justice, deliberately misleading the tax appeal court and the Appellant.”

By email dated 15 January 2026 Mr Nicholson (writing from the Appellant’s email account) applied for directions that BF should not be permitted to rely on the bundle of documents as it had been served late. In another email of the same date Mr Nicholson proposed to bring serious allegations against BF at the hearing.

Mr Nicholson did not, in the end, attend the hearing and the Appellant stated that he had not read or seen the emails sent on his behalf by Mr Nicholson. He formally disavowed their content.

The Appellant however, maintained the applications that BF be precluded from relying on their bundle (which he said was 100 pages longer than the documents sent with BF’s list of documents) and, following an explanation of the difference between a wasted costs order and an unreasonable costs order, sought and unreasonable costs order against BF.

We considered the application to exclude documents. We explained to the Appellant that in order to progress and determine the appeal we needed access to the relevant documents and, as such, could not properly determine the appeal without a bundle of some sort. We therefore sought to establish whether the Appellant considered that he had been prejudiced by the late service of the bundle and whether an adjournment of the appeal was necessary to allow the Appellant time to consider the bundle.

The Appellant confirmed that he was familiar with the bundle and that it substantively included the documents in his own bundle of documents (as served on BF with the Appellant’s list of documents). He considered himself able to participate in the proceedings and we determined to proceed with the hearing. We note that aided with guidance to the correct pages of the bundle by both the Tribunal and Mr Alam, the Appellant engaged in the proceedings coherently and with confidence articulating his arguments fully.

The issue before us is whether the Appellant is entitled to claim a refund of the Import Charges. In order to determine that issue we must establish whether the Equipment meets the terms of item 2(g) Group 12 Schedule 8 Value Added Tax Act 1994 (VATA) (Item 2(g)).

Section 30 and Item 2(g) VATA provide for the zero rating/relief from, in this case the Import Charges for “The supply to a disabled person for domestic or his personal use, … of: … (g) equipment and appliances not included in paragraphs (a) to (f) above designed solely for use by a disabled person;”.

We note that Item 2(g) was never referenced by BF in their correspondence nor the statement of case. Neither was it referred to by HMRC in their communications with the Appellant (or indeed BF). We were not provided with a copy of it. That is beyond disappointing from a represented government body.

The Appellant’s case was entirely founded on an argument rooted in the following wording from Notice 701/7:

“TV hearing aids – amplifiers and earpieces which may be connected to a TV set, radio or hi-fi to enable a person with hearing loss to hear the sound without warning turning up the volume”.

He contended that the Equipment precisely met that definition, as previously accepted by HMRC and BF for previous imports, justifying his refund.

Our jurisdiction is limited to an application of the relevant legislative provisions to the facts as we find them based on the parties pleaded cases. We are not entitled to determine purely whether the terms of guidance issues by HMRC are applicable. HMRC’s guidance is their view of the law and not a definitive statement of it. Neither do we have the jurisdiction to consider whether it is fair that HMRC/BF had previously allowed similar claims by the Appellant or whether they should be bound by such indications.

Given the basis on which the case had been presented to the Appellant and the materials before us, we considered whether we needed to adjourn the appeal to allow the Appellant to consider the substance of his appeal in the context of Item 2(g). We briefly adjourned the hearing to reflect on the potential prejudice of proceeding. We considered the terms of Notice 701/7 in the context of Item 2(g) to determine whether the Notice was an adequate statement of the law. We determined that it was and proceeded with the hearing through the lens of the Notice.

We reached our view in this regard because:

The Appellant was permitted to speak as he wished not distinguishing submission from evidence. We had access to the documents in the bundle and took sworn testimony from Officer Glass of BF as to the basis on which the refund of the Import Charges had been refused. She was cross examined by the Appellant. From that evidence we find the following facts.

During the course of his explanation, and on repeated occasions, the Appellant accepted that the Equipment he had purchased was of general use, none of it had been specifically or specially designed for use by disabled people though it served the purposes of enabling him to hear better in everyday life. This concession met with the conclusion of Officer Glass and of HMRC who had read the open-source specifications of the Equipment. We were provided with the specifications of each of the three items of Equipment and consider the concession appropriately made. There was nothing in the specification indicating that the Equipment was specifically designed for the use of disabled people. Accordingly, we find that the Equipment was designed for general use and not designed for disabled people.

We reviewed the correspondence provided by the Appellant concerning his previous imports and the exchange with HMRC concerning the Equipment. As we have no jurisdiction in respect of the previous imports, we have not considered them. Nor could we have done so because we were not provided with any information concerning the equipment imported. We cannot therefore determine whether those imports were of items specifically designed for use by disabled people or not. We accept that the Appellant is entitled to be bemused as to why equipment he previously purchased, and which believed to be substantively the same fulfilling the same function as the Equipment should have, on previous occasions, been eligible for relief but not the Equipment. However, we cannot provide an explanation for what he believes to be an inconsistency.

The correspondence between HMRC and BF and HMRC and the Appellant regarding the Equipment is directly conflicting. However, we note that the Appellant’s query refers only to amplifiers and not specifically to the precise items of Equipment. HMRC conclude “on the information provided” that relief applied. This is to be contrasted with the response to the referral from BF to HMRC in which the individual items of Equipment are identified. It was these items, by reference to their specification information, which were considered in the BF correspondence. As indicated, we have no jurisdiction to consider whether HMRC reasonably formed a view as communicated to the Appellant in respect of which they should be bound; however, even had we had jurisdiction we have insufficient information to conclude that HMRC formed anything more than a general view on amplifiers for those with severely impaired hearing when communicating with the Appellant as their email to him sets out the provisions of the Notice requiring that equipment be specifically designed for disabled people.

The point for us to decide was a discrete and short one: did the Equipment meet the terms of Item 2(g) which is adequately described in Notice 701/7, i.e. was it specifically designed solely for use by disabled people. Only if it were would it qualify for relief. The Appellant accepted that they were not and the appeal must therefore fail.

It is the general rule in this Tribunal that each party bears its own costs. However, Rule 10(1)(b) Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (Rule 10)provides that costs may be ordered on the application of a party or of the Tribunal’s own motion where there has been unreasonable conduct by one party in the proceedings. Where a party applies for costs the application must be accompanied by an estimate of the costs claimed with sufficient detail of how those costs have been incurred to allow the Tribunal to determine what award of costs to make.

The Appellant claims unreasonable costs against BF on the basis that BF failed to apply the guidance and persistently failed to comply with directions. BF resist that application. They contend that the substantive appeal on the meaning of the guidance was determined in their favour and hence was not misapplied. They also say that as they have apologised for the failure to comply with directions which they contend were due to administrative errors. They further contend that a costs award against them would be inappropriate in the context of the abusive language and accusations made in correspondence prepared by Mr Nicholson.

The case law on costs, most specifically the Court of Appeal judgment in Distinctive Care Ltd v HMRC [2019] EWCA Civ 1010, confirms that unreasonable conduct by a party in the proceedings should be carefully analysed and should not be seen as a back door route to introducing the cost shifting regime into this Tribunal. We do consider that an after the fact apology to a persistent failure to comply with directions and a failure to even plead the law on which a case is to be determined amounts to unreasonable conduct which might have justified an adverse costs order against BF which, in our view, gave no satisfactory expectation for what were repeated and successive failure to comply with Tribunal directions. However, the tone and content of Mr Nicholson’s emails and the unfounded and found less accusations made indiscriminately by Mr Nicholson, apparently without the acquiescence of the Appellant, also represents unreasonable conduct in the proceedings. As such we consider it inappropriate to make an award of costs in the Appellant’s favour. Further, the claim was not made compliantly as it did not provide a summary estimate of the costs incurred and therefore did not meet the terms of Rule 10 and we dismiss the application.

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.