VK v Commissioners for HMRC

When originally enacted, all procedural rules for the various Chambers of the First-tier Tribunal contained (and still contain) the same general power to regulate procedure, conferred in these terms:

“subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure” .

Many have always contained this provision:

“In particular, and without restricting the [general power to regulate procedure], the Tribunal may … extend or shorten the time for complying with any rule, practice direction or direction”.

But, as we shall see, some Chambers’ procedural rules have always expressly prevented the tribunal’s power to extend time from being exercised inconsistently with an externally set time limit. Here, this formulation tends to be used (with our emphasis):

“In particular, and without restricting [the general power to regulate procedure], the Tribunal may by direction:

(a)

extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment setting down a time limit”.

We mention these rules first, because they were relied on by Mr Royston. They qualify the general power to extend time in order to protect time limits laid down in other enactments. Rule 5(3)(a) contains the restriction set out in paragraph 35 above.

The form of rule 5(3)(a) is significant, because it shows an awareness by the TPC that there might be statutory time limits that should not be overridden by the rules. It can be dangerous to construe legislation by reference to the provisions of other legislation, but as all the 2008 rules were made at the same time, it is reasonable to infer that the TPC proceeded on the basis that, without the qualifying words, rule 5(3)(a) would, or probably would, allow external time limits to be extended.

For present purposes, we need not refer to any other of the other rules for this Chamber. We move on to consider the other Chambers’ rules, which were not cited to us.

For present purposes, these Rules are interesting for a number of reasons. Even though HMRC were a party to this appeal, they did not draw them to our attention.

Rule 5(3)(a) provides:

“In particular, and without restricting [the general power to regulate procedure], the Tribunal may by direction:

(a)

extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment setting down a time limit.”

As with the Health, Education and Social Care Chamber’s Rules, the qualification to rule 5(3)(a) indicates that the TPC have taken the view that they have, or may well have, power to make provision about time limits for an appeal even though some other enactment has already set a primary time limit. Moreover, despite the qualification to rule 5(3)(a), subsequent Tax Chamber’s rules, as we shall see, confer express power on the tribunal to extend a statutory time limit.

Rule 20(1) is the first of two rules dealing with time limits for appealing to the Tax Chamber. It concerns appeal proceedings “under any enactment”. The rule requires proceedings to be started by sending or delivering a notice of appeal to the Tribunal. Rule 20 expressly integrates its time limit provision with external time limits. Rule 20(4) provides:

“If the notice of appeal is provided after the end of any period specified in an enactment referred to in paragraph (1) but the enactment provides that an appeal may be made or notified after that period with the permission of the Tribunal—

(a)

the notice of appeal must include a request for such permission and the reason why the notice of appeal was not provided in time; and

(b)

unless the Tribunal gives such permission, the Tribunal must not admit the appeal”.

So, here, the rules are working with, rather than providing for extension of, time limits set in other enactments.

Rule 21 deals with time limits for another category of tax case. These are cases required by an enactment to begin with an “originating application or reference to the Tribunal”. Here, the general rule is that the application notice or reference notice must be provided to the Tribunal “within any time limit imposed by that enactment” (rule 21(1)). However, the rule then goes on expressly to confer power on the Tribunal to extend that time limit. This is done by rule 21(3):

“If the appellant provides the … notice … to the Tribunal later than the time required by paragraph (1) or by any extension of time under rule 5(3)(a) (power to extend time)—

(a)

the application notice or notice of reference must include a request for an extension of time and the reason why the application notice or notice of reference was not provided in time; and

(b)

unless the Tribunal extends time for the application notice or notice of reference under rule 5(3)(a) (power to extend time) the Tribunal must not admit the application notice or notice of reference.”

There is some jarring here with the wording of rule 5(3)(a), which ostensibly prevents an extension of time if that would conflict with an enactment setting a time limit. But the specific provision for extending time in rule 21 must have been intended to operate as an exception to the rule 5(3)(a) restriction.

Rule 21 excludes from is ambit “a CAA case” (Capital Allowances Act 2001 cases). Rule 21(3A) provides that “the power of the Tribunal under these Rules to extend time for starting proceedings shall not apply in a CAA case”.

We do not know what types of case are begun by originating application or reference in the Tax Chamber. But the wording of rule 21 clearly shows the TPC intended the Tax Chamber to have power to extend time and admit an application or reference despite it having being made after expiry of a time limit set by an enactment.

This overview of the Tax Chamber’s Rules shows a carefully constructed time limits regime operating by reference to time limits set by other enactments. In some cases, those time limits are protected but in others the rules confer power on the Tribunal to extend time beyond that set by some other enactment. It seems clear that, in making these rules, the TPC thought they had power to make rules conferring on the Tribunal a function of extending a primary time limit set by another enactment.

The Tax Chamber’s Rules also disclose an assumption that a time limit for complying with a rule (i.e. the rule 5(3)(a) wording) includes a time limit that a rule specifies by repeating a time limit set in other legislation. That is shown by the way rule 21(3) identifies the function of extending a time limit set by external legislation as the function of extending time under rule 5(3)(a). The same assumption can be seen in other First-tier Tribunal Rules which expressly qualify the rule 5(3)(a) power so that it is subject to time limits set by other legislation. If those other time limits were not within the initial wording of rule 5(3)(a), they would not need to be excluded from its scope.

The Property Chamber’s Rules are unique in that only they contain a general provision that makes them subject to other enactments. Rule 2 provides “nothing in these rules overrides any specific provision that is contained in an enactment which confers jurisdiction on the tribunal”.

Rule 27 deals with time limits, opening with rule 27(1) which provides “this rule applies where no time limit for starting proceedings is prescribed by or under another enactment”. Rule 27 goes on to set different time limits for different types of case without a time limit set by an enactment.

The Upper Tribunal (His Honour Judge Huskinson), in O’Kane v Charles Simpson Organisation Ltd [2015] UKUT 355 (LC), expressed the (obiter) opinion that the First-tier Tribunal had no power to extend the 21 day time limit for appealing against an owner’s variation or deletion of a mobile home site rule. Here, the time limit was specified in regulation 10 of the Mobile Homes (Site Rules) (England) Regulations 2014. The Judge relied on Mucelli for that view. However, the decision does not indicate that the judge was referred to rules 2 and 27(1). Had he been, we respectfully suggest he may have given different reasons for his view.

The General Regulatory Chamber’s Rules are another example of Rules that qualify the First-tier Tribunal’s rule 5(3)(a) power to extend time so that it is subject to time limits laid down in other enactments.

Rule 22(1) requires an appellant to start proceedings by sending or delivering to the Tribunal a notice of appeal. If a time limit is specified for a case in rule 22(6), the notice must be received within that time. Rule 22(6) contains different time limits for different types of case. For cases falling outside rule 22(6), the general time limit is 28 days from the date on which notice of the act or decision under challenge was sent to the appellant. By rule 22(4), the Tribunal must not admit a late appeal unless it has extended time.

Rule 4(3)(a) of these Rules provides: “in particular, and without restricting the [general power to regulate procedure], the Tribunal may … extend or shorten the time for complying with any rule, practice direction or direction”. The power to extend time is not expressly made subject to time limits set in other enactments.

Rule 19 contains time limits. An appellant must start proceedings by providing a notice of appeal to the Tribunal. The time limit is either 14 or 28 days after the appellant was sent notice of the decision under challenge.

Rule 20(1) confers powers on the Tribunal to admit a late appeal:

“Where a notice of appeal is provided outside the time limit in rule 19, including any extension of time directed under rule 4(3)(a) (power to extend time), the notice of appeal must include an application for such an extension of time and the reason why the notice of appeal was not provided in time.”

For “fast-track” appeals, different time limits apply. The primary time limit is two days and “the Tribunal must not extend the time for appealing unless it considers that it is in the interests of justice to do so” (paragraph 5(2) of the Schedule to the Rules).

The War Pensions and Armed Forces Compensation Chamber’s Rules confer a general rule 5(3)(a) power to extend time, but it is not expressly made subject to time limits set in other enactments.

Rule 21(1) requires an appellant to start proceedings by “sending or delivering a notice of appeal to the decision maker so that it is received within 12 months after the date on which written notice of the decision being challenged was sent to the appellant”. Rule 21(3) allows the decision-maker effectively to waive compliance with the 12 month rule (“if the decision maker does not object”). However, rule 21(4) then sets an outer time limit for starting proceedings: “no appeal may be made more than 12 months after the end of the 12-month period provided for in paragraph (1)”. The Tribunal is given by rule 21(6) a similar function to that given to the Social Entitlement Chamber in relation to late appeal disputes. But rule 21(7) expressly prohibits the Tribunal from admitting an appeal made more than 12 months after expiry of the primary 12 month time limit.

In these proceedings, Ms Ward for HMRC argues that Mucelli compels the Upper Tribunal to hold that rules under the TCEA 2007 cannot confer on the First-tier Tribunal power to extend time for appealing where a time limit has already been set by statute. Mr Royston, for Ms K, argues Mucelli can be distinguished. It is important to be clear about the context to Mucelli – so that it is not applied out of context – and about what it did and not decide.

Mucelli concerned time limits for appealing extradition orders and decisions made under the Extradition Act 2003. In England and Wales, a right of appeal against an order lay to the High Court. Section 26(4) of the 2003 Act required the notice of appeal to be “given in accordance with rules of court before the end of the permitted period, which is 7 days starting with the day on which the order is made”. The decision also concerned appeals to the High Court against a district judge’s decision to send a case to the Secretary of State where the specified time limit was 14 days (section 103(9)).

The relevant part of the decision for present purposes was their Lordships’ analysis of the scope of powers to extend time under the CPR. The appellants argued these powers permitted the High Court to extend time beyond the limits specified in the 2003 Act. They relied on CPR 3.2(a), which allows a court to “extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired)”. Their Lordships also considered whether the High Court had power to dispense with service. CPR Part 6 contains rules about service, including the power to make an order dispensing with service. Rule 6.1(a), however, disapplies the Part 6 rules “where another Part, any other enactment or a practice direction makes different provision”.

Lord Neuberger, with whom the majority agreed, held:

“74.

On the face of it, at any rate, there is a clear and unqualified statutory time limit, namely 7 days, and there would therefore seem to be no basis upon which it could be extended. In that connection, viewed from the English and Welsh perspective, I would refer to the CPR, which contain provisions whereby the court can extend time for the taking of any step, under CPR 3.1(2)(a), can make an order remedying any error of procedure, under CPR 3.10, or can make an order dispensing with service of documents, under CPR 6.9. However, these powers cannot be invoked to extend a statutory time limit or to avoid service required by statute, unless of course, the statute so provides. Apart from being correct as a matter of principle, this conclusion follows from CPR 3.2(a) which refers to time limits in "any rule, practice direction or court order", and from CPR 6.1(a) states that the rules in CPR 6 apply, "except where any other enactment … makes a different provision".”

In paragraph 75, Lord Neuberger went on to say that, for the High Court to be able to extend time, “it would be necessary to find some statutory basis for the court having power to extend time”.

Lord Neuberger rejected the argument that the CPR supplied a power to extend time. Firstly, the 2003 Act’s requirement for notice to be given in accordance with rules of court concerned the manner in which notice of appeal was to be given, not the time limit for giving the notice. Secondly, the CPR power to extend time was expressly subject to “any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal”.

Lord Neuberger also considered whether it was possible for rules to shorten a statutory limit. His view was that it was not:

“Section 26(4) requires the appellant's notice to be issued and served within 7 days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle.”

On our reading, Lord Neuberger did not conclude that subordinate legislation, such as rules of procedure, was simply prohibited from providing for extension of a time limit laid down in an Act. It is true that in paragraph 74 his Lordship said extending a statutory time limit was in principle wrong “unless the statute so provides”. However, in the next paragraph he referred simply to “some statutory basis” for the power to extend time. If these paragraphs are read together, in our view they show that Lord Neuberger considered that a power to extend a time limit set by statute simply required “some statutory basis”. He did not hold that a power to extend could only be conferred by the Act which set the primary time limit (or some other Act). This is unsurprising since such a limitation would be inconsistent with the doctrine of Parliamentary sovereignty (Parliament is of course free to confer power for secondary legislation to amend or modify the operation of primary legislation) and existing authorities.

To follow up that last point, we do not read Mucelli as departing from long-standing authorities that a court (or tribunal) may extend a statutory time limit if it has statutory authority to do so. As Grove J. said in Barker v Palmer (1881), 8 Q.B.D. 9 at p. 10:

That was qualified to an extent by the Court of Appeal in Petch v Gurney [1994] STC 689, [1994] 3 All ER 731, but not to undermine the principle that rules may confer power to extend a statutory time limit. Referring to Grove J’s statement, Millett LJ said:

“This probably cannot be laid down as a universal rule, but in my judgment it must be the normal one. Unless the Court is given a power to extend the time, or some other and final mandatory time limit can be spelled out of the statute, a time limit cannot be relaxed without being dispensed with altogether; and it cannot be dispensed with altogether unless the substantive requirement itself can be dispensed with.”

It is true that in Mucelli Lord Brown, in agreeing with Lord Neuberger, said:

“…section 26 (4) is requiring the notice of any appeal to be both filed and served within the stipulated 7-day period and that this, being a statutory time limit, is unextendable. The rules of court are to dictate everything about the filing and serving of the notice save only the period within which this must be done; this is expressly dictated by the section itself. Whatever discretions arise under the rules are exercisable only insofar as is consistent with the filing and serving of the notice before the statutory time limit expires.”

If Lord Brown’s opinion is taken out of context, it might provide support for the view that, as a matter of principle, rules of procedure cannot provide for extension of time limits specified in other enactments. However, their Lordships heard extensive argument by reference to the provisions of the CPR. Lord Brown’s opinion was relatively brief and given in support of Lord Neuberger (“no more than an echo”, he said). In our view, Lord Brown did not consider that rules of procedure are, as a matter of general principle, prohibited from providing for the extension of a statutory time limit. Lord Brown considered the time limits under analysis in Mucelli were unextendable because the CPR conferred no power to extend time, not because procedure rules are incapable, no matter how broad their enabling powers, from providing for extensions of time.

Mucelli was applied by the Court of Appeal in Reddy v The General Medical Council [2012] EWCA Civ 310 in which the Court said “their Lordships [in Mucelli] also had to consider a second point, namely, whether the court had power to extend the time allowed for giving notice of appeal. They held that in the absence of some statutory power it did not”. In our respectful view, that correctly states the ratio of Mucelli on this point.

JI addressed the legal consequences of (a) the 2008 Order, the main purpose of which was to provide a legal bridge between the TCEA 2007 and the tribunal legislation it replaced and (b) the 2009 Order, one of whose purposes was to make permanent what had been a temporary transfer of the Tax Commissioners’ function of deciding tax credits appeals. Upper Tribunal Judge Rowland decided that, as a result of these Orders, the power to extend time for appealing against a tax credits decision, conferred on an appeal tribunal by the Tax Credits (Appeals) (No.2) Regulations 2002 had disappeared by April 2009 at the latest. Neither party disputes the reasoning on points of statutory interpretation that led to that conclusion.

It is clear from Judge Rowland’s decision that HMRC thought, and intended, that the First-tier Tribunal should have the same power to extend time as had been previously been enjoyed by the appeal tribunal it replaced in November 2008. And, as we have seen, the procedure rules for the new First-tier Tribunal did, on their face, permit the Tribunal to extend time for appealing a tax credits decision (subject to the outer limit of 12 months from expiry of the primary 30 day time limit).

Judge Rowland found that the TPC’s powers to make rules under the TCEA 2007 did not extend to making provision for the Tribunal to extend the time limit set by TCEA 2007. His reasoning was:

“24.

[Rule 5(3)(a)] does not permit the extension or shortening of the time for complying with a provision in primary legislation. It could not do so. Tribunal Procedure Rules cannot permit an extension or shortening of the time for complying with a provision in primary legislation unless there is a specific enabling provision in primary legislation permitting such a rule (Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 W.L.R 287). There is no such provision in primary legislation relevant to the present case.”

Upper Tribunal Judge Rowland re-visited the topic in JT. He accepted HMRC’s concession that Article 6(1) of the European Convention on Human Rights called for a qualification to the JI ruling. In Pomiechowski, the Supreme Court applied the European Court of Human Rights’ decision in Miloslavsky v UK (1995) 20 EHRR 442 that time limits for initiating proceedings must not impair the “very essence” of the Article 6(1) right to a judicial determination of civil rights. Lord Mance held that such restrictions on accessing a court or tribunal “must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved” (para. 22 of the decision). Lord Mance went on to say that, to avoid incompatibility with Article 6(1):

“the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6(1) in Tolstoy Miloslavsky [(1995) 20 EHRR 442]”.

The point has been made for Ms K that this is not a satisfactory outcome (in a practical sense). The requirement to show “exceptional circumstances” sets the bar far higher than if the First-tier Tribunal had a general discretion to extend time for appealing for up to 12 months from the expiry of the primary time limit.

HMRC argue it is “plainly right” that the TCEA 2007 does not authorise tribunal procedure rules to provide for extension of time limits set in other legislation. In the light of Mucelli, a power to make “provision for” time limits for initiating proceedings cannot be construed as extending to provision conferring power to override a time limit for appealing set by other legislation.

Mr Royston, for Ms K, disagrees. He argues “provision for” time limits include power to make provision to extend statutory time limits. Mr Royston also draws our attention to section 124 of the Finance Act 2008, which HMRC assert extends to removing time limits, and says it is framed in very similar terms to the TPC’s power in paragraph 4 of Schedule 5 to the TCEA 2007. Mr Royston also relied on the provision made by the Health, Education and Social Care Chamber’s Rules which expressly restricts that Chamber’s power to extend time to protect time limits set elsewhere. This shows the TPC proceeded on the basis that it had power to make provision in relation to existing time limits set elsewhere.

Mr Royston argues Mucelli can be distinguished. Their Lordships were concerned with different rules made under powers that, unlike the TCEA 2007, did not obviously extend to making provision for time limits. Mr Royston also argues Mucelli has been misread, to the extent that it is thought to prevent secondary legislation from ever conferring power to extend a time limit.

Time limits are of fundamental importance to the justice system and the parties to a legal dispute. Without time limits, there can be no legal certainty. The threat of legal proceedings would be ever present, inhibiting the confidence with which the citizen, the state and the justice system can plan for the future. That is why time limits for bringing legal proceedings are in the public interest. On the other hand, time limits may deny access to justice. An absolute time bar excludes a legal remedy no matter how strong the merits of a particular case.

Where, then, to draw the line? Our legal system often takes a two-pronged approach involving a fixed primary time limit alongside a judicial discretion to extend time. Until 3 November 2008, there was no doubt that the tax credits late appeals regime was of this type. However, the Upper Tribunal in JI concluded that the First-tier Tribunal ceased to have power to extend time as an unintended result of legislative changes made in 2008 and 2009. Whilst the First-tier Tribunal’s procedure rules appeared to confer power to extend time, in that respect the rules were disapplied as invalid.

We have had the benefit of fuller argument on the scope of the rule-making powers conferred by the TCEA 2007 than did Judge Rowland in JI. Only HMRC were professionally represented before him. We respectfully disagree with the Judge’s finding that the TCEA 2007 does not permit the TPC to make rules that confer power on the First-tier Tribunal to extend the primary statutory time limit for appealing against a tax credits decision.

We do not agree with HMRC’s argument that Mucelli effectively bans rules of procedure from providing for the extension of a time limit for appealing set by Act of Parliament. That is inconsistent with long-standing authorities that were not in our view cast into doubt by Mucelli (such as Barker v Palmer and Petch v Gurney). Lord Neuberger did not hold that procedural rules are incapable of being authorised to extend time limits. If he had held that view, he would not have spent some time considering whether, in that case, a power to extend time could be found in the CPR. His Lordship did express very clear doubts as to whether rules could ever shorten a statutory time limit, but the same doubts were not expressed in relation to the extension of time limits.

Paragraph 4 of Schedule 5 to the TCEA 2007 specifically authorises rules of the First-tier Tribunal to “make provision for time limits as respects initiating, or taking any step in, proceedings before the First-tier Tribunal or the Upper Tribunal”. For our purposes, the range of possible meanings of this phrase are:

The TCEA 2007 was extensive, reforming legislation with a clear aim of rationalising and simplifying the operation of tribunal justice. A proliferation of inconsistent time limits for initiating tribunal appeals clearly has the potential to militate against an efficient and accessible tribunal system. It invites mistakes on the part of users, representatives, tribunal staff and tribunals themselves. Legitimate systemisation is inhibited because, as time limits multiply, so do forms and processes and hence the potential for delay.

Of course, there are often good reasons for different time limits for different types of case. The appellant profile and urgency of the underlying subject matter means the general requirement for legal finality and certainty finds different expression in different types of case. But, without a good reason for different approaches to time limits, the aims of the TCEA 2007 will be served by ironing out those inconsistencies. For that reason, we conclude that Parliament intended the power in paragraph 4 of Schedule 5 to extend to provision for judicial extension of time limits set by other enactments including Acts of Parliament. This does not involve a strained or unnatural reading of paragraph since “provision for time limits as respects time limits for initiating … proceedings” is a broad term. Construing the power in the light of the TCEA 2007’s purpose, we conclude it extends to meaning (b) as described above.

We do not accept that our decision invites a coach and horses to trample over Parliament’s intentions in setting statutory primary time limits for various types of appeal. In enacting the TCEA 2007 for the purpose of rationalising and simplifying the tribunal system, Parliament knew that purpose might be served by rationalisation and simplification of time limits. It delegated powers in this respect to the TPC, an expert legislator, comprised, as required by the TCEA 2007, mainly of judges who self-evidently are not motivated by political considerations. Parliament also conferred an effective right of veto over new rules on the Lord Chancellor, who is of course answerable to Parliament, and reserved to itself power to nullify procedure rules. These structural features indicate that Parliament took a considered decision, involving various checks and balances, to delegate certain powers in relation to extension of time limits set by other enactments to the TPC.

However, we do not think the TPC’s powers extend to the effective re-writing of primary time limits set in other enactments. That would stray beyond the proper realm of procedural rules into matters of wider policy. The provision made in the 2008 Rules does not purport to re-write the primary time limit for appealing against a tax credits decision. It provides for case-by-case judicial determinations which are to be made by reference to the Rules’ overriding objective of enabling the Tribunal to deal with cases fairly and justly.

Whilst the actions of a subordinate legislative body cannot define the ambit of its powers, we are fortified in our conclusions by the way in which the TPC has exercised its powers to date. As our overview of the First-tier Tribunal’s Rules demonstrates, the Rules have in some cases made specific provision to preserve statutory time limits but, in other cases, have not.

We do not accept that the outcome in Mucelli dictates the outcome in the present case. Their Lordships were concerned with the CPR. The enabling powers for the CPR are contained in the Civil Procedure Act 1997.

The first reason why Mucelli does not determine the present outcome is that, as their Lordships partly relied on, the CPR included an express restriction on certain general powers to prevent their exercise contrary to provision in other enactments. Whilst some of the First-tier Tribunal’s Chambers have procedural rules with a similar qualification, the Social Entitlement Chamber’s rules do not.

The second reason why Mucelli does not determine the present outcome is that we are concerned with a different set of procedural rules made under different enabling powers. The Civil Procedure Act 1997 does not contain the same detailed specification of provision that rules may make as is found in the TCEA 2007. Section 1(1) provides “there are to be rules of court … governing the practice and procedure to be followed” in various civil courts. The Schedule to the 1997 Act makes further provision about the content of CPR but includes only seven entries none of which specifically authorise provision for time limits (the TCEA 2007’s rule-making Schedule contains 19 entries and, as we have seen, specifically authorises provision for time limits for initiating proceedings).

Nailing down the exact scope of the powers to make civil procedure rules is not straightforward, due to the referential drafting used by the 1997 Act. Paragraph 1 of Schedule 1 to the Act provides that “among the matters which Civil Procedure Rules may be made about are any matters which were governed by the former Rules of the Supreme Court or the former county court rules (that is, the Rules of the Supreme Court (Revision) 1965 and the County Court Rules 1981)”. We raised this issue at the start of the hearing. Admittedly, counsel had little time to research the point over lunch, but we were not drawn to, nor are we aware of, any provision of the 1965 or 1981 Rules that provided for the extension of time limits set by other enactments. It may be there was simply no authority for the CPR to confer power to extend a time limit set by an enactment.

Ms Ward for HMRC points out that, on its face, the rule 5(3)(a) power only applies to extending time for complying with any rule, direction or practice direction. Plainly, she argues, this does not include a time limit set by primary legislation. Mr Royston argues for a pragmatic reading that takes into account that no one intended to deprive the First-tier Tribunal of its power to extend time for appealing a tax credits decision.

We acknowledge that in Mucelli their Lordships held that powers under the CPR to extend time for complying with a rule did not permit a court to extend time for complying with a time limit set by an Act. Our task, however, is to construe the Social Entitlement Chamber’s Rules (in the light of the enabling powers conferred on the TPC by the TCEA 2007).

Section 39 of the TCA 2002 sets a time limit for tax credit appeals. It does not provide for or authorise extensions of time, but neither does it prohibit them.

As we have found, paragraphs 4 of Schedule 5 to the TCEA 2007 authorises rules to provide for extensions of time.

Rule 23 of the Social Entitlement Chamber’s Rules deals with time limits. It imposed some directly and referred to others that are set elsewhere, such as by section 39.

If rule 23 stood alone, it could merely fulfil the function of a notice board, identifying to claimants the existence of the time limit in tax credit cases and its source.

Rule 23 does not stand alone. As with every rule, it must be read in the light of other case management powers. So the power to proceed in a party’s absence under rule 31 does not preclude the exercise of the power to adjourn in rule 5(3)(h) (MH v Pembrokeshire County Council [2010] UKUT 28 (AAC)) and the right to an oral reconsideration of an application for permission to appeal to the Upper Tribunal is subject to the tribunal’s case management power to strike out the proceedings (Dransfield v Information Commissioner [2016] UKUT (AAC) 0273 (AAC)).

Rule 5 is one of those rules conferring case management powers on the First-tier Tribunal. Rule 5(3)(a) allows the tribunal to extend “the time for complying with any rule”; not, we note, “for complying with the time limit set by any rule”. The language is wide enough to include a rule that incorporates a time limit set elsewhere.

In our view, the wording of rule 5(3)(a) simply reflects the drafting style of the TPC. In order to locate all powers to extend time in a single rule, that is rule 5(3)(a), the TPC repeated the section 39(1) TCA 2002 time limit in rule 23. As a result, the power to extend time for complying with a rule under rule 5(3)(a) could operate in relation to that time limit.

If rule 23 acted simply as a notice board, the TPC would have enacted a dead letter in ostensibly conferring power on the First-tier Tribunal to extend time for bringing a tax credits appeal. If it is possible to do so, we should avoid construing the rules to produce that result.

Provisions in other rules confirm that rules 5 and 23 operate together in this way. Mr Royston referred us to rule 5(3)(a) in the rules for the Health, Education and Social Care Chamber, which contains an express prohibition on extending an externally set time limit. We attach particular significance to that provision as it was made at the same time as the rules for the Social Entitlement Chamber. Why exclude a power that does not exist? Subsequently, Rules for other Chambers have taken the same approach. Rule 21(3) of the Tax Chamber’s Rules, in particular, can only achieve its intended purpose if the Rules are interpreted in the way we have identified.

Ms Ward also relied on rule 5(1). This renders the tribunal’s general power to regulate procedure subject to the TCEA 2007 and other enactments. Even if the power to extend time under rule 5(3)(a) is an aspect of the general power, rule 5(1) does not have the result contended for. The Tribunal does not act incompatibly with the TCEA 2007 by exercising powers conferred by Rules that were duly made under the TCEA 2007. And the requirements of other enactments must themselves be read as subject to any modification of those enactments duly made by provision under the TCEA 2007. Any other result would defeat Parliament’s purpose in authorising those modifications.

We therefore allow this appeal and remit the case to the First-tier Tribunal. The tribunal made an error on a point of law by proceeding, in accordance with JI, on the basis that it had no power to extend time.

Had issues 1 and 2 not been decided in Ms K’s favour, both Mr Royston for Ms K and Ms Ward for HMRC made common cause in arguing that Article 6(1) of the European Convention on Human Rights provided a ready-made solution. To be precise, they agreed on a human rights compliant outcome but to an extent had different views as to the process by which we should arrive at that solution.

There was no dispute that determination of a tax credits appeal involves a determination of civil rights for the purpose of Article 6(1). Article 6(1) provides:

“in the determination of his civil rights and obligations … everyone is entitled to a … hearing … by [a] … tribunal”.

The parties also agreed that Article 6(1) required the First-tier Tribunal to proceed as if it had not lost its power to extend time for appealing against a tax credits decision.

In summary, Ms Ward’s argument, building on HMRC’s concession in JT (see paragraph 73 above), was that the absence of any power between November 2008 and April 2014 to extend time amounted to an interference with Ms K’s Article 6(1) rights (see Adesina). The appropriate remedy was, relying on section 3 of the Human Rights Act 1998, to read into section 39(1) of the 2002 Act words such as those italicised below:

“(1)

Notice of an appeal under section 38 against a decision must be given to the Board in the prescribed manner within the period of thirty days after the date on which notice of the decision was given (or, in the case of a decision to which section 23(3) applies, the date of the decision) or within such period in which the appeal would be admitted out of time under the Tax Credits (Appeals) Regulations 2002.”

Mr Royston did not as such oppose Ms Ward’s submission that section 39(1) could be read down in this way so as to include the pre-existing power to extend time. However, his argument was more radical. On his analysis, the Article 6(1) problem was a stepping stone to a more ambitious argument that the 2008 and 2009 Orders were ultra vires insofar as they removed the Tribunal’s previous power to extend time.

With respect, we were not persuaded by either set of arguments. Ms Ward’s submissions certainly enjoyed an attractive elegance and simplicity. However, we struggled to understand how, on the basis of her arguments, section 39(1) could be read down so as to incorporate the full breadth of the discretion to extend time available under the Tax Credits (Appeals) Regulations 2002. Even if it is assumed the removal of the Tribunal’s power to extend time was wholly accidental, it did not seem to us to follow that Article 6(1) necessarily mandated a return to the status quo ante. It was by no means obvious to us that a 30-day time limit with a power read in to extend on the basis of the principles set out in Pomiechowski (as applied by the Court of Appeal in Adesina) would represent an interference with the appellant’s Article 6(1) rights.

We also had difficulties with Mr Royston’s more radical arguments. An important plank in his submissions is that the present case was not on all fours with Pomiechowski and Adesina at all. His argument, as we understood it, is not that the failure of the tax credits appellate machinery between 2008 and 2014 to accommodate extensions of time impaired the “very essence” of the right under Article 6(1) to a judicial determination of civil rights (see Pomiechowski). Rather, his case is the complete absence of any legitimate basis for the (accidental) removal of the discretionary power to extend time was of itself sufficient both to involve a breach of Article 6(1) and to require a return to the previous position. This argument relies on the decision of the European Court of Human Rights in Stubbings v UK (1997) 23 E.H.R.R. 213, which concerned the fixed six year time limit for bringing an action in tort, with time running from the date on which the cause of action accrued. The action related to alleged psychological injury caused by childhood sexual and other abuse.

The relevant issues in Stubbings, according to the Court, were set out in paragraph 48 of its decision:

“[The Court] must be satisfied that the limitations applied do not restrict or reduce the access [to a court or tribunal] in such a way or to such extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”

Stubbings is said to compel the result described in paragraph 106 above since the loss of the First-tier Tribunal’s power to extend time was due to a legislative oversight. If the First-tier Tribunal were to act in accordance with the apparent requirements of that inadvertent legislation it could not possibly be pursuing a legitimate aim. There was no aim at all, let alone a legitimate one, since this was all a mistake.

With respect, we think this argument overlooks that the two sentences of paragraph 48 of Stubbings cited above deal with subtly different matters. The first sentence is about the application of limitations and that involves claimant-specific factual considerations. The second sentence is about the limitations themselves. It seems to us that, assuming the 2008 and 2009 Orders were valid, the First-tier Tribunal would have been required by Stubbings to relax the 30 day time limit where, on the facts of a particular case, applying the time limit would impair the very essence of the right of access to a court or tribunal. The mechanism for doing so would have been the ‘reading in’ of a limited power to extend time to secure Article 6(1) compatibility referred to by Lord Mance in Pomiechowski – and not necessarily to restore the previous broader discretion, as noted above.

We also bear in mind that the 2008 and 2009 Orders are a continuing part of the legal foundations for the current tribunal system. Mr Royston’s arguments would necessarily involve some fairly substantial rewriting of those Orders and the Tax Credits Appeals (No. 2) Regulations 2002 with the potential for unintended and unfortunate consequences to emerge at some later date. Moreover, as a general rule, it would be unwise, unless it is absolutely necessary to do so, to express a view on the merits of arguments that legislative provisions are invalid. But, in any event, our finding that the Social Entitlement Chamber’s Rules could, and did, confer power to extend time significantly changes the legal context to the arguments that the provision made was not authorised by the Orders’ enabling powers. Our finding suggests that the provision made by the Orders was not mistaken after all and the assumption of a mistake is a cornerstone of Mr Royston’s arguments on these latter points.