It’s been nearly three years since the Coronavirus Job Retention Scheme (CJRS) came to an end in September 2021 - and a year since we last highlighted a CJRS tribunal case. But despite the passage of time, HMRC is continuing to pursue recovery of overpayments and there remains a steady procession of cases going through the First Tier Tribunal. 

In two of the latest cases this year, Pipsquid Ltd v Revenue and Customs (June 2024) and Digital Buying Partners Ltd v Revenue and Customs (May 2024), the two employers concerned sought to argue that they were entitled to make CJRS claims in respect of employees even though the employees had not been included on a Real Time Information (RTI) submission by 19 March 2020.

The requirement for employees included in a CJRS claim to be on an RTI submission prior to 19 March 2020 (originally 28 February 2020) was a key condition of claiming under the scheme prior to 1 November 2020. The scheme was first announced on 20 March 2020, and the strict cut off was intended to prevent employers adding people to their payrolls after the start of the scheme just to make a claim. While this created unwelcome outcomes for some individuals who had genuinely been employed on or before 19 March/28 February, but had perhaps recently moved jobs and not yet received their first payslip, given the speed at which the scheme was implemented, a hard cut off was imposed for ease of administration.  

In Pipsquid, in February 2020 the employer Mr Green was in the process of transferring all his employees onto RTI. (It is not clear why this had not happened previously.) But due to the hospitalisation of Mr Green’s daughter that month, the transfers were disrupted, meaning that while some employees were included on RTI filings by 19 March, four were not. Mr Green argued that the claims should stand as they had been genuinely employed by the business and, when he sought advice from HMRC at the time, at no point was he told that he could not make claims in respect of those employees. 

In their arguments, HMRC noted that the legislation which governed the CJRS scheme was clear, and contained no grace period or reasonable excuse to allow employers to claim for employees who did not meet the 19 March cut off. The Tribunal agreed. 

A similar line was taken in Digital Buying Partners, where again, the employees had been working for the employer prior to the 19 March, but the first RTI filings which reported payments to them were made after 19 March. The business sought to defend their case on the grounds of fairness and claimed a reasonable excuse for failing to meet the 19 March deadline as illness had prevented more timely filings. Once again though, the Tribunal agreed with HMRC that the conditions had not been met and the claims needed to be repaid. 

In both cases, the initial compliance checks were opened in September 2020, and it has therefore taken nearly four years for them to reach a conclusion. The decisions are though not surprising, given that in at least another six cases the Tribunal has determined that it has no option but to apply the strict letter of the law. 

While it is understandable that employers who missed the 19 March RTI deadline for genuine employees may feel that it is worth defending their claims at Tribunal, the results of the cases so far suggest that the Tribunal has no discretion to uphold claims where this cut-off date was missed.