Timothy Norton & Anor v The Commissioners for HMRC

The first Appellant, Mr Norton, and the second Appellant, Tim Norton Motor Services Ltd (‘the Company’), appeal against a decision issued by the First-tier Tribunal (‘the FTT’) on 14 December 2020 (‘the Decision’).

Mr Norton had appealed to the FTT against income tax assessments for the years 2012/13, 2013/14, 2014/15 and 2016/17 as well as a closure notice amending his self-assessment tax return for the year 2015/16. The Company had appealed to the FTT against decisions in respect of NICs for the years 2010/11 to 2016/2017 inclusive. The additional income tax and NICs were charged on the same basis namely that, in the view of the Respondents (‘HMRC’), Mr Norton had received a benefit in kind from the Company because two cars had been “made available” to him by the Company in the relevant years.

The FTT dismissed the Appellants’ appeals in relation to the years 2013/14 onwards and allowed them for earlier years in respect of one of the cars. Material to this appeal, the FTT decided that the cars were “made available” to Mr Norton even in periods when they were not used by Mr Norton and could not be lawfully used on public roads because no Vehicle Excise Duty (‘VED’) had been paid in respect of them.

There was no challenge to the findings of fact by the FTT which are set out in [16] to [31] of the Decision.

The Appellants contend that the FTT erred when it considered that the GT40 and Maserati were available for private use at times when no VED was in place for them (‘Car Benefit Issue’). In particular:

In addition, Mr Norton submits that the FTT erred when it concluded:

Mr Norton had also been granted permission to appeal on the ground that the enquiry into the 2015/16 return was not retrospectively validated by the enactment of section 12D of the TMA. However, In the light of the Upper Tribunal’s decision in Allam v HMRC [2021] UKUT 291 (TCC), Mr Norton did not rely on that ground or advance any argument in relation to it at the hearing but reserved the right to argue the point should the case proceed further.

The statutory provisions treating the provision of cars, vans and related benefits as earnings for income tax purposes are found in Chapter 6 of Part 3 of the Income Tax (Earnings and Pensions) Act 2003 (‘ITEPA’). The material parts of Chapter 6 for the purposes of this appeal are as follows.

Section 114(1) ITEPA states:

Section 116 states:

Section 117(1) provides that a car made available by an employer to an employee or member of an employee’s family or household is to be regarded as made available by reason of the employment subject to two exceptions, neither of which is applicable in this case.

Section 118 states:

Finally, section 143 provides:

The FTT decided that, in those years where a car had actually been used by Mr Norton with the acquiescence of the Company, the car was made available to Mr Norton for the purposes of section 114. The FTT held at [33] that:

The FTT then considered whether, in those periods in which Mr Norton did not use one or other of the cars, it was nevertheless made available to him. Mr Gordon submitted, as he did before us, that the cars were not available when subject to a Statutory Off Road Notification (‘SORN’) declaration because it would have been illegal to use the cars on the public roads without having paid VED (other than with trade plates or to drive to a MOT test). The FTT rejected the submission, at [50], on the ground that the need for a SORN before the cars could be driven on the road did not prevent them being available because it was relatively easy for the restriction to be removed by the payment of VED. At [51], the FTT also found that the passage in the Company Handbook (see section 4.1 of the Company Handbook in [30] of the Decision at [4] above), was not an effective constraint because it was highly likely that Mrs Norton agreed or would have agreed to or acquiesced in Mr Norton’s decisions to use the cars. Accordingly, the FTT concluded, at [52] and [53] that, even in periods when they were not used, the cars were made available for use by Mr Norton and thus Conditions A and B were satisfied in each relevant year.

Condition C is that the car is available for the employee’s private use and section 118 provides that a car which is made available is to be treated as available for the employee’s private use unless in the relevant year such use is prohibited by the terms on which it is made available and the car is not used for private purposes.

At [63], the FTT held, “with some hesitation”, that the provision in the Company Handbook that an employee or officer of the company may not use a company vehicle without the express permission of Management was “a prohibition on the use of any company car for private purposes and that prohibition would apply to the use of such a car by Mr Norton unless such permission were given either generally or for a specific occasion.” However, the FTT found that, in relation to the Maserati, Mrs Norton must have given her consent to private use of the car by Mr Norton in a general form at an early stage which meant that all later availability was not on terms which prohibited personal use. In relation to the GT40, the FTT found, on a balance of probability, that Mrs Norton consented to or acquiesced in the private use of the car by Mr Norton in the relevant years. As a result, the FTT concluded at [70] that Condition C was satisfied for all years in relation to the Maserati and in relation to the GT40 for 2013/14 to 2016/17.

The FTT’s conclusion meant that relevant benefits in kind arose in relation to the Maserati for all relevant tax years and for the GT40 for 2013/14 to 2016/17.

Mr Gordon referred us to Customs and Excise Commissioners v Elm Milk Ltd [2006] EWCA Civ 164, [2006] STC 792 (‘Elm Milk’) which concerned a company’s right to recover input tax on the purchase of a car that was provided to its sole director who also owned the company with other members of his family. Article 7 of the Value Added Tax (Input Tax) Order 1992 prevents the recovery of input tax on a car unless at the time of the purchase the purchaser intends to use it exclusively for the purposes of a business and does not intend to make it available for private use. The Court of Appeal considered the meaning of the phrase “made available” in article 7(2G) of the Order. Mr Gordon said that the Court of Appeal’s comments were equally applicable to the term “available” in sections 114, 116 and 118 and we did not understand Ms Choudhury to disagree. At [38] and [39], Arden LJ said this about the meaning of “available”:

In Elm Milk, the tribunal had found that the director intended to be bound by a board resolution that the car should be used for business purposes only, that the company did not intend to make the car available for private use and that any private use would be a breach of the employee’s terms of employment. On that basis, Arden LJ held in [40] and [41] that it was not open to HMRC to submit that the restrictions were worthless because they could be revoked at any time by the director and that it followed from the tribunal’s findings that it did not matter that, in theory, the director could have revoked the board resolution at any time.

We accept that Elm Milk is binding authority for the proposition that a contractual restriction on use for private purposes can be sufficient provided that the restriction is effective. We also accept that the contractual restraint need not have any permanence to it but, again, it must be effective at the relevant time. Whether a contractual provision is an effective prohibition on private use is a question of fact for the tribunal to determine having considered all the circumstances of the case.

Mr Gordon also referred to decisions of the FTT in Golding v HMRC [2011] UKFTT 232 (TC) and Graham v HMRC [2019] UKFTT 517 (TC) but we did not find they provided any greater assistance than we derived from the Court of Appeal’s judgment in Elm Milk.

In this case, Mr Gordon submitted that there were two legal restraints on the use of the GT40 and Maserati where a SORN was in place and the car was untaxed, ie no VED had been paid. The first restriction was that the cars could not legally be used on the road if no VED had been paid. He argued that the term “available” in sections 114, 116 and 118 must mean available for lawful use. He contended that the FTT erred when it considered that the GT40 and Maserati were available for private use at times when no VED had been paid in respect of them because such use would be unlawful. The second restriction was the contractual prohibition in the Company Handbook. Mr Gordon relied on the FTT’s conclusion at [63] that the Company Handbook imposed a prohibition on use of the cars unless the person who wished to use them first obtained permission from the Management of the Company, (which in Mr Norton’s case meant the board as a whole or Mrs Norton), and also ensured that the cars were insured, VED had been paid (unless used with trade plates) and there was a valid MOT, if appropriate, in place. Accordingly, when the cars had no VED paid, they were not available to Mr Norton in accordance with section 118.

In relation to the first restriction, Mr Gordon submitted that the FTT was wrong in [50] to treat the relative ease of revoking the SORN and paying VED as a reason for saying that the cars were still available to Mr Norton, even when a SORN was in force. He submitted that, when it said that the ease of removing SORN meant that a car was available at all times, the FTT had substituted a test of potential availability for the correct test of whether the car was available at a particular time. We do not agree that the FTT used the wrong test. It seems to us that the FTT’s conclusion at [50] amounted to a finding that the existence of a SORN was not an effective restriction in this case. That is clear from the last sentence of [50] which is as follows:

The statutory question is whether the cars were made “available”. Mr Gordon’s distinction between actual and potential availability is, in our view, at best a distraction from the statutory question of “availability” and amounts to putting an impermissible gloss on the statutory words. There can often be something that needs to be done before a vehicle can, as a practical or even a legal matter, be driven. At [48] the FTT instanced the need to fuel a vehicle or put on a crash helmet. Similarly, a flat battery can prevent a car being immediately available for use and an under-inflated tyre can make immediate use a criminal offence (reg 27 of the Road Vehicles (Construction and Use) Regulations 1986 and section 41A of the Road Traffic Act 1988).

We therefore consider that the FTT was right at [50] to consider the ability of a user of a vehicle to remove a practical or legal restriction; this approach is fortified by the reference in Elm Milk to the need for an “effective restraint”. The FTT had previously referred at [21] and [24] to the paying of VED prior to the use of a car and the subsequent making of a SORN and, on its findings, there was no obstacle to Mr Norton arranging for these things to be done.

In short, the FTT made a finding that the fact that a SORN was in place and using the cars without payment of VED would be illegal was not, in the circumstances of this case, an effective restraint upon their use and the cars were thus available for private use by Mr Norton at all times. That was a finding of fact and it seems to us that it was a conclusion that the FTT was entitled to reach on the evidence before it.

By way of contractual restraint, Mr Gordon relied on two passages in paragraph 4.1 of the Company Handbook: the statements that “you may not use a company vehicle without the express permission of Management” and “at all times all employees and officers of the company must ensure that any vehicle used is taxed”. As to the first of those, the Appellants challenged the FTT’s findings in [66] and [67] that the cars were used with the knowledge and consent or acquiescence of Mrs Norton. Mr Gordon contended that the FTT wrongly conflated Mrs Norton’s consent or acquiescence on specific occasions with consent or acquiescence to private use more generally. Mr Gordon submitted that the Appellants’ concession, recorded at [28] of the Decision and repeated in his skeleton argument, that the cars were available for Mr Norton’s private use in those periods when VED had been paid in relation to them was not an admission that Mrs Norton had consented to non-business use in those periods. Mr Gordon contended that the FTT should have found that Mrs Norton would not have consented to private use generally, or at least would not have consented to private use except where such use was wholly incidental to those limited occasions where business reasons justified VED being paid.

In response, Ms Choudhury submitted that the FTT was entitled to come to the conclusion in [66] and [67] that Mrs Norton had consented to the use of the cars for private purposes. She submitted that any challenge to that conclusion could only succeed if it satisfied the test in Edwards v Bairstow [1956] AC 14.

We agree with Ms Choudhury that there are no grounds for interfering with the FTT’s finding of fact that Mrs Norton generally consented to Mr Norton using the cars for private purposes. It also seems to us that any requirement for Mr Norton to obtain the express permission of Management could have been satisfied by him simply deciding, as a director, that he would use the car. He was in a unique position to do so as he was in sole control of the keys to the cars which were kept in a locked box which in turn was locked in a safe in the office.

Secondly, Mr Gordon relied on the requirement in the Company Handbook that an officer of the company must ensure that any vehicle was taxed. He challenged the FTT’s conclusion at [69] that this was not a prohibition on use but a requirement of use and that use of a car without VED was not a breach of a prohibition on use but a breach of the obligation to ensure the car was taxed when it was being used as being inconsistent with the judgment of Vinelott J in Gilbert (HM Inspector of Taxes) v Hemsley (1981) 55 TC 419 (‘Hemsley’) which considered the predecessor to section 118 ITEPA.

In Hemsley, the taxpayer was provided with a car for business use and told that he was “not expected” to use it for private purposes. The General Commissioners found that the terms on which the car was made available to the taxpayer prohibited its private use and no such use was made of the car in the relevant year. On an appeal by the Revenue to the High Court, Vinelott J held:

Vinelott J went on to hold that the words ‘You are not expected to use’ were capable of meaning and of being understood as meaning ‘You are expected not to use’ which was a polite way, appropriate in the circumstances, of saying ‘You are not to use’. He concluded that the General Commissioners “must have taken the view that in the particular circumstances the words used were intended to mean and would be understood by a reasonable employee as meaning, and were (as they found) in fact understood by the taxpayer as meaning, that the car was being made available to him on terms that it would not be used for private purposes.”

We respectfully agree with Vinelott J’s analysis of the intent of the legislation and the need for an express and legally enforceable prohibition on private use, such an intention is evident in the provisions of sections 114 to 118 ITEPA. But we do not consider that Vinelott J’s interpretation of the words used in that case provides any assistance to Mr Gordon. The issue before Vinelott J was whether the General Commissions had been entitled to find (as they had) that a statement that the taxpayer was “not expected” to make private use of a car amounted to a sufficiently categorical prohibition.

In the present case the issue is different. The words in the Handbook are categorical in saying that “at all times all employees and officers of the company must ensure that any vehicle used is taxed unless covered for use by trade plates”. In respectful disagreement with the FTT, we tend to consider that for Mr Norton to drive one of the cars without first ensuring that VED was in place would be a breach of the instruction in the Handbook. But the prohibition is at most a conditional one: not to drive a car without first ensuring that it is taxed (or covered by trade plates). As with the legal obstacle to driving an untaxed car, it is not an effective restraint upon use in circumstances where Mr Norton could comply with the obligation in the Handbook by arranging for prior payment of VED. In the absence of any obstacle to Mr Norton making those arrangements, the clause in the Handbook does not advance Mr Gordon’s argument.

For the reasons set out above, we find that the Company’s appeal must be dismissed and we reject Mr Norton’s first ground of appeal, but that does not conclude matters in relation to Mr Norton who appeals on two further grounds.

In the FTT, Mr Norton had argued that the discovery assessment for 2016/17 was invalid because it had been made while the “enquiry period” for that year was still open. The “enquiry period” means the period between the delivery of a tax return and either:

There was no dispute that the assessment for 2016/17 was made on 20 November 2018 before the enquiry window closed on 31 January 2019 without an enquiry having been opened. The FTT concluded, at [139], that “the fact that the assessment was made during the enquiry window at a time when an enquiry could have been opened does not invalidate that assessment.”

It appears that, apart from in Mr Norton’s appeal, this issue has only been considered at first instance in three other cases and has never been considered by the Upper Tribunal or higher courts.

Sections 8, 8A and 9 of the TMA empower HMRC to require a taxpayer to file a tax return, which must include a self-assessment of the person’s tax liability. Section 9A empowers HMRC to enquire into a tax return on giving notice, which must generally be given within 12 months of the filing of the return (the “enquiry window”). Section 28A provides for the completion of such an enquiry by a closure notice. Under section 28A(4) a taxpayer may apply to the FTT for a direction requiring HMRC to issue a closure notice.

Separately, section 29(1) empowers HMRC to issue a tax assessment where they “discover” that a taxpayer has not been assessed (or self-assessed) to income tax that is due. There are restrictions on the power to assess, of which the relevant one for present purposes is contained in section 29(3). This provides that where a taxpayer has delivered a return for the relevant tax year, he “shall not be assessed” unless one of the two conditions in subsections (4) and (5) is satisfied. Subsection (4) has no application to this case. Subsection (5) is as follows:

The first case that considers the relationship between enquiries and assessments is Lee v HMRC [2008] SPC 715 (‘Lee’) in which a number of applications had been made under section 28A(4) for directions requiring HMRC to close various investigations that were under way into the affairs of three taxpayers. The Special Commissioner found that only one of these was an enquiry under section 9A. At paragraph 8 he described the relationship between enquiries under section 9A and investigations with a view to an assessment under section 29 as follows:

The Special Commissioner’s remarks about the timing of section 29 assessments were not necessary for his decision, but support Mr Norton’s contention.

The next case is Trustees of Bessie Taube and others v HMRC [2010] UKFTT 473 (TC) (‘Taube’). This involved a somewhat complicated series of interconnected appeals relating to an individual and two family trusts. The correct tax treatment of the individual depended in part on the correct tax treatment of one of the trusts.

An issue in relation to section 29 arose in the appeal of the individual. He had filed a tax return for 2000/01 in January 2002; the enquiry window had closed on 31 January 2003. Following an investigation into the tax return of one of the trusts, in September 2004 the HMRC officers dealing with the trust asked the individual’s tax office to raise an assessment on him; this was done in December 2004.

The issue under section 29 did not relate to the permissibility of raising an assessment during the enquiry period but to the timing of the “discovery” pursuant to which the assessment was raised. At [69], the FTT summarised the taxpayer’s argument as being that, in order for there to be a “discovery” within s 29(1), there has to be a discovery of something new outside the enquiry window and in that case there was no evidence that something had been newly discovered outside the enquiry window.

The FTT rejected this submission, reasoning as follows:

In its context, the FTT’s decision in Taube was only that an assessment could be based on a discovery made during the enquiry window, not that an assessment could be raised during the enquiry period.

The matter does not seem to have come before the FTT again until the present case. In the Decision, the FTT respectfully disagreed with the conclusion of the Special Commissioner in Lee and concluded that a discovery assessment made during the enquiry period was valid. The FTT reached this conclusion despite noting that the validity of such an assessment could not be determined until the enquiry period had ended. This was because the condition in section 29(5) relates to the knowledge of the HMRC officer when the enquiry window closes, if a taxpayer made the relevant information available to the officer after the assessment was made but before the end of the enquiry period, the assessment would be retrospectively invalidated. The FTT recognised this “procedural problem” in [137] and [138] but disregarded it on the ground that the difficulty would be one of HMRC’s own making and the FTT would be able to manage any appeal to take account of the timing issues.

The final case to consider this point is Curtis v HMRC [2022] UKFTT 172 (TC) (‘Curtis’) which involved a discovery assessment raised during the relevant enquiry period. In that case, the FTT followed Lee and declined to follow the FTT in this case. The FTT in Curtis observed at [84]:

The FTT in Curtis noted that HMRC’s submissions in that case, if accepted, would lead to the situation that the validity of an assessment would remain uncertain until the end of the enquiry period. Unlike the FTT in this case, the FTT in Curtis did not regard that as a manageable problem but as a reason for concluding that section 29(5) could not have been intended to give rise to such a result, especially where it would be preferable and straightforward for HMRC simply to open an enquiry.

Ms Choudhury submitted that the question was only whether the legislation gives HMRC the ability to choose whether to issue a discovery assessment during the enquiry window. She said that HMRC accepted that the opening of an enquiry and subsequent issue of a closure notice is the primary method of enforcement but that did not mean that a discovery assessment is a method of last resort. Ms Choudhury also agreed that an assessment made during the enquiry period has a precarious existence until the period has ended but maintained that it is nevertheless possible to issue an assessment in those circumstances.

We can deal with this ground of appeal quite briefly. We do not accept HMRC’s submissions or the views of the FTT in this case. In our view, the legislation and its intended effect are clear. Section 29(3) TMA states that the taxpayer “shall not be assessed” unless one of two conditions is satisfied. In a case like the present where the condition in section 29(4) is not applicable, the words of section 29(3) amount to an unambiguous prohibition on any assessment being made while the conditions in section 29(5) have not been met. We also agree with the FTT in Curtis at [87] that the validity of a discovery assessment must be tested at the time it is made. The conditions in section 29(5) are temporal as is made clear by the words “at the time when”. It follows that a discovery assessment made during the ‘enquiry period’ is invalid because the conditions in section 29(5) cannot be satisfied at that time. As the FTT in Curtis pointed out, HMRC’s view would mean that the validity of an assessment would remain uncertain until the end of the enquiry period. We do not accept that a discovery assessment issued during the enquiry period can exist in an indeterminate state like Schrödinger’s cat until the enquiry period ends.

Accordingly, we allow Mr Norton’s appeal in relation to the discovery assessment for 2016/17.

The FTT found at [166] that HMRC had not validly issued a section 8 TMA notice to Mr Norton requiring him to file a return for 2015/16 and, as a result, no valid enquiry under section 9A TMA could have been opened at the time. That analysis was subject to section 12D TMA which had been inserted into the TMA, with retrospective effect, by section 87 of the Finance Act 2019. In brief, the effect of section 12D is that where a person makes a self assessment tax return otherwise than in response to a notice (‘a voluntary return’), HMRC may treat a notice as having been given and the voluntary return as having been made in pursuance of it. In this case that meant that, if section 12D applied, the 2015/16 return, enquiry and closure notice were made valid retrospectively.

Section 12D was subject to transitional provisions which limited its retrospective effect. It was common ground that the transitional provisions in section 87(4) meant that section 12D would not apply if a letter dated 20 March 2017 from HMRC to Mr Norton was an effective closure notice in relation to the 2015/16 enquiry. In the letter of 20 March 2017, HMRC wrote:

In March 2017, the relevant provisions of section 28A TMA read as follows:

At [206], the FTT held that the 20 March 2017 letter did not constitute a closure notice within the terms of section 28A:

The FTT then considered whether the defects could be remedied by applying section 114 TMA. Section 114(1) permits certain procedural defects in certain documents, including closure notices, to be disregarded. It provides:

The FTT decided that section 114 did not overcome the defects that it had identified in the 20 March 2017 letter and gave its reasons in [210]:

Before us, Mr Gordon accepted that there was no express statement in the 20 March 2017 letter that the enquiry had come to a formal conclusion but he submitted that it was clear from the context that the enquiry had ended. He pointed out that there are no time limits governing the closure of enquiries and therefore the words “in order to protect HMRC’s position” could only relate to the discovery assessments and not to the amendment to Mr Norton’s 2015/16 tax return; moreover, the amendments could only be made if the officer were issuing a closure notice. He submitted that the key words in the letter of 20 March 2017 were “amended the tax return for the year ended 5 April 2016” and the only basis for such an amendment was section 28(2)(b) TMA. Mr Gordon pointed out that both parties treated the letter as a closure notice. Ten days later, Mr Norton’s accountant notified appeals to HMRC and subsequently notified them to the FTT. HMRC produced a statement of case which stated that they had opened and closed an enquiry. Only subsequently, in a letter of 29 March 2019, did HMRC say that no closure notice had been issued in 2017.

Mr Gordon submitted that an objective reader, with the knowledge of Mr Norton about what had led to the enquiry, would assume that the HMRC officer had reached a conclusion about his tax liability for 2015/16, which was reinforced by the statement that the officer said she would be amending the return. Mr Gordon stated that the HMRC officer recognised that she was creating an enforceable debt which she had to suspend to stop collection proceedings taking place. He pointed out that both parties considered there to have been a closure notice and the only omission was the lack of any statement that the enquiry had been concluded which was mere form and not substance. Mr Gordon contended that, in those circumstances, section 114 applies to allow any omission of form to be disregarded.

Ms Choudhury submitted that the absence of any stated conclusion in the letter of 20 March 2017 was fatal. She contended that this was a matter of substance because one of the substantive requirements of section 28A was simply not met and section 114 did not permit such a fundamental flaw to be disregarded.

There is no prescribed form for a closure notice under section 28A TMA but it must state certain matters (see HMRC v Bristol & West plc [2016] EWCA Civ 397 at [24] and R (oao Archer) v HMRC [2017] EWCA Civ 1962 at [17]). Those matters are:

We agree with the FTT that the letter of 20 March 2017 is not a closure notice within the terms of section 28A TMA. In the letter, the HMRC officer did not tell Mr Norton that she had completed her enquiries and did not state a concluded view. The officer based her views about Mr Norton’s tax position on information obtained from a colleague who was still engaged in discussions with Mr Norton’s accountant. The officer only stated that the information suggested that Mr Norton owed additional tax which indicates a provisional or tentative view rather than a firm conclusion. The officer made it clear that the assessments and amendment were not final in the last two paragraphs of the letter when she stated that she had informally suspended collection of the additional amounts due until discussions between Mr Norton’s accountant and her colleague had been finalised. Only then would the officer contact Mr Norton again about his tax liability and, we infer, finalise the position.

There was no dispute that there is nothing to preclude a taxpayer from relying upon section 114 TMA although it is usually HMRC who rely on the section. Section 114 applies to cure documents, such as purported closure notices, which would otherwise be invalid for “want of form [or because] of a mistake, defect or omission therein, if the same is in substance and effect in conformity with or according to the intent and meaning of the Taxes Acts”. In our view, the absence of key features in the letter of 20 March 2017 such as a statement that the HMRC officer had completed her enquiries and a definitive statement of her conclusions were errors of substance rather than mere want of form. In the letter, the HMRC officer said that there were ongoing discussions between a colleague and the Company about the car benefit charge and that the officer would contact Mr Norton again about his tax liability when those discussions were finalised. This indicated that HMRC had not completed their enquiries or reached a concluded view about Mr Norton’s tax liabilities. The reference to the collection of the additional amounts of tax being suspended pending completion of the discussions also indicates that the amendments notified by the letter were not final. We are forced to conclude that these show that the letter was not in substance and effect a notice of closure in conformity with or according to the intent and meaning of section 9A of the TMA. Accordingly, we dismiss Mr Norton’s appeal on this ground.

For the reasons given above, the Company’s appeal is dismissed and Mr Norton’s appeal is also dismissed save in so far as it relates to the discovery assessment for 2016/17 in respect of which we allow the appeal.

Any application for costs in relation to this appeal must be made in writing and served on the Tribunal and the person against whom it is the order be made within one month after the date of release of this decision as required by rule 10(5)(a) and (6) of the Tribunal Procedure (Upper Tribunal) Rules 2008.