SAVJANI v INLAND REVENUE COMMISSIONERS

[COURT OF APPEAL]

[1981] Q B 458

HEARING-DATES: 21 January 1981

21 January 1981

CATCHWORDS:
Discrimination, Race - Provision of goods, facilities or services - Revenue - Discrimination in granting tax relief - Whether granting tax relief and giving advice on tax matters provision of "services" - Whether unlawful discrimination - Income and Corporation Taxes Act 1970 (c. 10), s. 10 (1) - Race Relations Act 1976 (c. 74), ss. 1 (1), 20 (1)

HEADNOTE:
The plaintiff, an accountant, was born in India and came to the United Kingdom in 1970. He married and in May 1976 his wife gave birth to a son. The plaintiff went to the local Inland Revenue office, where information and advice was given to members of the public on their tax affairs, in order to claim tax relief under section 10 (1) of the Income and Corporation Taxes Act 1970 n1 in respect of his son. The Inland Revenue had a policy rule that taxpayers who came from the Indian sub-continent should be required to produce a full certified copy of the birth certificate (costing oe2.50) of the first child born in the United Kingdom for whom tax relief was claimed instead of the short form of birth certificate which was issued free and was normally accepted for other claimants. Accordingly the plaintiff was required to supply the full birth certificate before the revenue granted the relief. 

The plaintiff brought an action claiming that the revenue had unlawfully discriminated against him contrary to section 20 (1) (b) of the Race Relations Act 1976. n2 The judge dismissed the plaintiff's claim.

On appeal by the plaintiff:-

Held, allowing the appeal (Dunn L.J. dubitante), that the Board of Inland Revenue, which under sections 1 (1) and 13 (1) of the Inland Revenue Regulation Act 1890 and section 1 (1) of the Taxes Management Act 1970 had responsibility for the collection and management of inland revenue, were bound by section 10 (1) of the Income and Corporation Taxes Act 1970 to give the plaintiff the relief which he claimed on proof of his entitlement thereto; that in the exercise of their responsibilities as to entitlement to tax relief, and in the giving of advice and the actual advice given thereon, the Inland Revenue were "concerned with the provision ... of ... services to the public or a section of the public" within the meaning of section 20 (1) (b)

n1 Income and Corporation Taxes Act 1970, s. 10 (1): See post, p. 467B.

n2 Race Relations Act 1976, s. 1: "(1) A person discriminates against another ... for the purposes of ... this Act if (a) on racial grounds he treats that other less favourably than he treats ... other persons. ..."

S. 3: "(1) ... 'racial grounds' means any of the following grounds ... ethnic or national origins. ..."

S. 20 (1); see post, pp. 465D-E.

S. 41 (2): see post, p. 466C.

S. 75: "(1) This Act applies - (a) to an act done by or for purposes of a Minister of the Crown or government department; or (b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office, as it applies to a private person."

of the Race Relations Act 1976; and that by putting the plaintiff, because of his ethnic or national origin, to a higher standard of proof of his entitlement to relief and to greater difficulty in obtaining relief by requiring the production by him of a full birth certificate instead of the short certificate normally required of a claimant the revenue had unlawfully discriminated against him contrary to the section (post, pp. 465G-H, 466F-G, 467A-B, D-E, H - 468A, 469C-D, G).

Reg. v. Immigration Appeal Tribunal, Ex parte Kassam[1980] 1 W.L.R. 1037, C.A. distinguished.

Per curiam. Section 41 (2) (a) of the Race Relations Act 1976 confers power on the appropriate Minister of the Crown to approve any policy arrangement of the Inland Revenue which provides an exception to the wide words of the Act (post, pp. 466C-D, 468G - 469A).

INTRODUCTION:
APPEAL from Judge Heald sitting at Nottingham County Court.

By particulars of claim of January 3, 1980, amended January 28, 1980, the plaintiff, Prabhudas Savjani, claimed against the defendants, the Inland Revenue Commissioners, (a) a declaration that on June 15, 1977, the defendants unlawfully discriminated against him on racial grounds contrary to section 20 (1) (b) of the Race Relations Act 1976 by requiring or advising him on account of his colour and/or race and/or ethnic and/or national origins at his own expense to obtain and produce a certified copy of an entry in a Register of Births in order to claim tax relief for a dependent child, whereas the defendants normally required or advised taxpayers who claimed relief for a dependent child to produce only a short form of birth certificate; and (b) damages limited to oe100.

Judge Heald, who sat with assessors, was presented with the following agreed facts: Under section 1 of the Taxes Management Act 1970 income tax was under the care and management of the defendants who were obliged to appoint inspectors and collectors of taxes to act under their direction. The inspector at Leicester 2 District ... was so appointed. Taxpayers could call at Lillie House between the hours of 10 a.m. to 4 p.m. Monday to Friday. At the entrance notices announced that fact and that P.A.Y.E. inquiries were dealt with on the second floor in room 204, and that Schedule D and repayment claims inquiries were dealt with in room 302. In room 204 there were 5 interview booths and chairs for members of the public awaiting interview. In room 302 there were 2 interview booths and chairs for members of the public awaiting interview. Members of the public attended the Lillie House offices for information and advice on their tax affairs and for the determination of their tax

liabilities, including information and advice concerning and the determination of any claim for tax relief, which in 1977 included tax relief in respect of a dependent child. Information and advice were given orally in interview, in writing in response to specific inquiries, and in the form of printed leaflets copies of which were annexed hereto. [4] At all material times the defendants had a policy in relation to the proof of claims that each taxpayer originating from  the Indian subcontinent (including one who had come to the United Kingdom from another country such as Kenya) when claiming tax relief for the first time for a child born in the United Kingdom should be required to produce a certified copy of the entry in the Register of Births relating to such child in proof of his claim. Normally, and as a general rule, such certified copies were not required from other claimants for this relief. That requirement was embodied in written instructions issued to Inland Revenue officers. A short form of birth certificate was issued free of charge when a birth was registered in England and Wales. A certified copy of the entry in the register cost at all material times the sum of oe2.50. The plaintiff was of Asian origin. He was born in Kanakpur, India, and came to the United Kingdom in 1970. He was an accountant. He was married, and he and hie wife had a son named Neil Prabhudas Savjani, who was born on May 15, 1976, at
the Royal Infirmary, Leicester, and whose birth was duly registered in the registration district of Leicester Central in the County of Leicestershire on June 1, 1976. On November 26, 1976, the plaintiff attended the Lillie House office in order to claim tax relief in respect of his son. He was interviewed by a tax officer of the Inland Revenue who on the ground that according to a statement by the plaintiff included in the relevant tax file the plaintiff was born in Kanakpur, India, advised him to produce a certified copy of the entry in the Register of Births relating to his son to substantiate his claim. The plaintiff was handed a claim form which he took away. The plaintiff completed the claim form and dated it November 28, 1976. He posted it to the tax office with a copy of a short form birth certificate relating to his son and a covering letter dated November 28, 1976. The letter stated: "Attached to the form is a photostat copy of the birth certificate of my child. If you want the original certificate of birth please state your reasons for wanting it." The tax office replied on December 9, 1976, stating: "With reference to your letter dated 28.11.76 please supply the full birth certificate as the shortened form is not sufficient for our purposes." On January 26, 1977, the plaintiff called again at the Lillie House office and was seen by an inspector of taxes. He produced a short form of birth certificate for his son and inquired why the short form of birth certificate was not acceptable. He was told that it was not acceptable according to departmental rules and that child allowance would be granted for his son on production of the proper document. The plaintiff stated that he would endeavour to obtain a full certificate. On April 18, 1977, the Race Relations Board wrote to the Chairman of the Board of Inland Revenue. This was replied to on May 17, 1977, and a further letter dated June 24, 1977, from the Commission for Racial Equality was sent to the Chairman

of the Board of Inland Revenue. ... On June 15, 1977, the plaintiff again attended the Lillie House offices in order to claim tax relief in respect of his son. He was interviewed by a young lady on behalf of the defendants, who again advised and required him to produce a certified copy of the entry in the register to substantiate his claim. The plaintiff asked her to confirm this in writing, and she wrote, "We would like a large copy of the child's birth certificate." The plaintiff, who knew that a person not of Asian origin would have been advised and required to produce only a short form of birth certificate to substantiate his or her claim to tax relief for a dependent child, felt humiliated and angry. The plaintiff obtained a certified copy of the relevant entry in July 8, 1977.

On August 15, 1980, in a reserved judgment, Judge Heald held that, although the plaintiff had been treated differently from a person born in the United Kingdom in relation to his claim for child allowance, there had been no breach of the Race Relations Act 1976 and that his claim failed.

The plaintiff appealed on the ground that upon the agreed facts the judge ought to have held that the defendants provided facilities or services  to the public or a section of the public within the meaning of section 20 (1) of the Race Relations Act 1976 and that the defendants had discriminated against him on racial grounds in providing such facilities or services contrary to the provisions of the Act.

By a respondents' notice under R.S.C., Ord. 59, r. 6 (2) the defendants contended that the judgment should be affirmed on the additional ground that they were not persons concerned with the provision of facilities or services within the meaning of section 20 (1) of the Act of 1976 and that the fact that they gave advice and information incidental to the performance of their statutory functions did not bring them within the aim or purview of section 20.

The facts are further stated in the judgment of Lord Denning M.R.

COUNSEL:
John Macdonald Q.C. and Peter Susman for the plaintiff. The question of law is whether or not the Inland Revenue provide "facilities or services" within the meaning of section 20 of the Race Relations Act 1976. The judge was presented with an agreed statement of facts and the plaintiff was assisted by the Commission of Racial Equality: see section 66 of the Act of 1976.

The relevant statutory provisions are the Inland Revenue Regulation Act 1890, sections (1) (2), 13 (1) and 24; the Income and Corporation Taxes Act 1970, sections 5 and 10; the Taxes Management Act 1970, section 42 (1) (5) and the Race Relations Act 1976, sections 1, 3, 20 (1) (2) (g), 41 (1) (2) and 75.

In determining claims under section 10 of the Income and Corporation Taxes Act 1970, the Ministry are performing administrative functions. Their policy as applied to the plaintiff was clearly discriminatory, the question is whether it was lawful. In determining whether or not the plaintiff was entitled to child relief, were the revenue concerned with the provision of "goods, facilities or services"? Section

20 of the Race Relations Act 1976 substantially reproduced section 2 of the Race Relations Act 1968. In Race Relations Board v. Applin [1975] A.C. 259, the House of Lords emphasised the wide words of section 2 of the Act of 1968. The agreed facts make it clear that the tax office which the plaintiff attended was a market place situation.

The fact that a person is carrying out a statutory function is not by itself sufficient to take him outside the Act of 1976. It makes no difference that the party concerned is a Government Department or a nationalised industry. Reg. v. Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 W.L.R. 1037, where the House of Lords gave leave to appeal but there was no appeal must be distinguished. The ratio of that case is in the judgment of Stephenson L.J. at pp. 1042H - 1043C, particularly the reference at p. 1043 to the provisions of section 20 not being "aimed at ... the Secretary of State ..." Permission is not "providing a facility": see per Ackner L.J., at p. 1044B. The Court of Appeal in that case did not have Race Relations Board v. Applin [1975] A.C. 259 cited to them; and see per Lord Morris of Borth-y-Gest at p. 274 and Lord Simon of Glaisdale at p. 286. One of the "services" provided by the Inland Revenue Commissioners is to provide tax relief for parents who qualify: if they do that by imposing restrictions on persons of Indian origin they are discriminating. There is an analogy with the case of a senior citizen who applies for a railway or bus privilege card.

The Shorter Oxford Dictionary, 3rd ed. (1944), p. 667, defines "Facility" as "... 2. Opportunity for the easy or easier performance of anything." Section 20 (2) (c) applies to grants obtainable from public authorities and from private people; discretionary grants and those obtainable as a matter of right. Suppose an Indian woman were to go to a bank or a post office to withdraw money or obtain an allowance: if she were asked to produce her passport because she was Indian, it would be discriminatory. The setting up of an office to which people can go is the provision of a facility or service. Advice comes within the scope of section 20 (1).

The appeal should be approached in the context of what Parliament set out to do. Government departments should be in the lead.

Alan Moses for the defendants. The Inland Revenue Commissioners are not persons concerned with "the provision ... of ... facilities or services" within section 20 (1) of the Act of 1976 when they give advice (see the respondents' notice, ante p. 461). When the commissioners consider what type of proof is needed to support a claim to tax relief or whether a taxpayer is entitled to child relief they are not performing a facility or service. Even if the commissioners do provide "facilities or services" they did not discriminate because in requiring a strict proof of claims to child relief from taxpayers originating from the Indian subcontinent the commissioners were not discriminating in the provision of facilities or services. 

The giving of advice is ancillary to the main function of the commissioners. Section 10 of the Income and Corporation Taxes Act 1970 requires proof of a claim for child relief. By section 29 of the

Taxes Management Act 1970 ("... all assessments to tax shall be made by an inspector") it is the inspector who makes the decision. If the inspector allows a claim under section 10 of the former Act all that it means is that he is satisfied that the applicant has proved his entitlement. There is no reference to "benefits" in section 20 of the Race Relations Act 1976. [Reference was made to section 34 of the Taxes Management Act 1970.]

There is a distinction between the giving of advice and the substance of that advice. If the plaintiff had gone to a Citizens' Advice Bureau he would have been told that he needed a full birth certificate. There would have been no discrimination in that advice. In considering the type of proof required for child relief the inspector is performing a duty which is outside Part III of the Race Relations Act 1976. It is part of the inspector's duty to assess the right amount of tax.

Reg. v. Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 W.L.R. 1037 is relied upon: see per Stephenson L.J. at pp. 1042H - 1043C. The decision was upon the basis that the activity performed by the Secretary of State was in the exercise of his duty and not the provision of a facility or service: see per Ackner L.J. at pp. 1043H - 1044B. In the present case the inspector of taxes was exercising his discretion in relation to this taxpayer. Both the policy of the commissioners and the function performed in accordance with that policy were part of their duty under the Taxes Management Act 1970.

Macdonald Q.C. in reply. Reg. v. Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 W.L.R. 1037 is distinguishable because there it was a question of "granting a permission": see per Ackner L.J. at p. 1044B.

PANEL: Lord Denning M.R., Templeman and Dunn L.JJ

JUDGMENTBY-1: LORD DENNING M.R

JUDGMENT-1:
LORD DENNING M.R: Mr. Prabhudas Savjani was born in India. He came to this country in 1970. He is married. His wife came from Kenya. They have a son, born on May 15, 1976, at the Royal Infirmary at Leicester. He is named Neil Prabhudas Savjani. His mother registered his birth. She was given a short certificate of birth. It only gave the name of the child, his sex and the date of birth.

The father was entitled to tax relief in respect of his child. That is provided by section 10 (1) of the Income and Corporation Taxes Act 1970, which says:

"If the claimant proves - (a) that there is living at any time within the year of assessment a child of his ... he shall ... be entitled ... to a
deduction from the amount of income tax with which he is chargeable" or in a proper case repayment of tax which he has already paid.

So Mr. Savjani would be entitled to tax relief in respect of this child. He went along to the office of the inspector of taxes in Leicester. At that office there are ample facilities for people to obtain advice and information as to their tax position. There were five interview booths in this particular room at Lillie House in Leicester. Chairs were provided for members of the public waiting to be interviewed. In another room   there were two interview booths and chairs for members of the public. We have been shown a series of pamphlets which have been issued by the income tax authorities in which they give advice as to the relief different categories of claimants are entitled to. On the back of the pamphlet entitled "Income Tax PAYE" there is a notice saying: "REMEMBER - if you want help ask at any tax office or PAYE Enquiry Office. You will find addresses in the telephone book under 'Inland Revenue'".

Mr. Savjani went to the office of the inspector of taxes on November 26, 1976, in order to claim tax relief in respect of his son. He took the short form of birth certificate. A clerk looked up a file and found that Mr. Savjani, the father of the child, had been born at Kanakpur in India. Thereupon the clerk said to him in effect: "It is no good your bringing the short form of birth certificate which only gives the name and sex of the child and the date of birth: you must bring the full birth certificate which gives the name of the child's father and mother and where they came from."

Mr. Savjani said that - when he was told that - he felt very humiliated and upset: because he knew that, if he had been born in England, he would not have had to produce a full birth certificate in regard to his child. The short form would have been sufficient - which cost him nothing. But the full birth certificate cost oe2.50. So Mr. Savjani paid oe2.50 and got the full birth certificate and produced it to the revenue authorities. When he did so, he was granted relief and received a repayment of tax.

The matter was taken up by the Commission for Racial Equality. They said that the officers of the Inland Revenue had been guilty of unlawful discrimination contrary to the Race Relations Act 1976. An agreed statement of facts was put before the judge: and has now been put before us. I will read the material paragraph from the agreed facts which the commissioners said was their policy:

"4. At all material times the defendants had a policy in relation to the proof of claims that each taxpayer originating from the Indian
sub-continent (including one who had come to the United Kingdom from another country such as Kenya) when claiming tax relief for the first time for a child born in the United Kingdom should be required to produce a certified copy of the entry in the Register of Births relating to such child in proof of his claim. Normally, and as a general rule, such certified copies were not required from other claimants for this relief. This requirement was embodied in written instructions issued to the Inland Revenue officers."

So it is plain that instructions went out from the Inland Revenue officers that, in respect of a child whose parent or parents were born in the Indian sub-continent, they were not to be satisfied with the short form of birth certificate. The applicant had to provide the full form, with the names and place of birth of the father and mother. Correspondence passed between the Race Relations Board and the Inland Revenue. On May 17, 1977, Sir William Pile on behalf of the Inland Revenue wrote to the Race Relations Board, saying:

"... In the case of claimants who are immigrants, we are bound to consider a report made to Parliament by the Public Accounts Committee in 1968. The committee found that fraudulent claims to personal reliefs had been made upon an extensive scale by immigrants from the Indian sub-continent and that the claim had frequently been supported by false documents. Following this report we were obliged to introduce more stringent checks upon claims by immigrants. In the case of children born in the United Kingdom, these have included the inspection of the full birth certificate which enables the child allowance entitlement of the claimant to be verified by reference to original evidence of the names of the father and mother."

So there it is. It is a policy rule laid down by the Inland Revenue. In respect of children whose parents were born on the Indian sub-continent, they require the production of the full birth certificate.

The question is whether or not there was unlawful discrimination. The judge held that there was not. Now there is an appeal to this court.

I need not go into all the sections of the Race Relations Act 1976 except to say, first: this was plainly a discrimination. On racial grounds this father was treated less favourably than other fathers. But the question is: Was it an unlawful discrimination? To answer that, one has to look to section 20 (1) of the Act of 1976:

"It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services - ... (b) by refusing or deliberately omitting to provide him with ... services ... in the like manner and on the like terms as are normal ... in relation to other members of the public. ..."

The whole question is whether in this case the Inland Revenue were providing "facilities or services" within that section. Examples are given in section 20 (2). One example is "(c) facilities by way of banking or insurance or for grants, loans, credit or finance": another is "(g) the services of any profession or trade, or any local or other public authority." The Inland Revenue are clearly a "public authority." The question is whether they are providing "services" to people like the father in this case, who came to claim tax relief.

The judge drew a distinction between the giving of advice and the advice itself. He said that the commissioners would be guilty of discrimination if they said, "We will only give advice to white people and not to coloured people." But that they were not guilty if they said to a coloured person, "We advise you to bring a full birth certificate." He held that the giving of advice was a "service": but not the actual advice itself. 
To my mind the distinction which was drawn is too fine by far. Under the Taxes Management Act 1970 the revenue are entrusted with the "care and management" of "income tax, corporation tax and capital gains tax": see section 1 (1). They provide a service to the public in collecting tax. They also provide a service to a section of the public in so far as they give relief from tax or make repayments of tax or - I would add - give advice about tax. Those are all most valuable services which the Inland Revenue provide to the public as a whole and to sections of the public. It seems to me that the provisions for granting relief, giving advice, and the advice which is given, are the provision of services. As Templeman L.J. indicated in the course of argument: Would it be
right for the Inland Revenue to issue a circular saying that people born in England need not worry about full certificates - the revenue would take their word - but they would require them in the case of someone coming from the sub-continent of India. It seems to me that such a circular would be the provision of a service. It would be discrimination in the provision of a service for the public.

I can understand the difficulty of the Inland Revenue in dealing with the problem. To what extent should they insist on the production of birth certificates? There is a way out given by section 41 (2) of the Race Relations Act 1976:

"Nothing ... shall render unlawful any act whereby a person discriminates against another ... if that act is done - (a) in pursuance of any arrangements made ... by or with the approval of ... a Minister of the Crown. ..."

If the appropriate Minister of the Crown should think that arrangements should be made for insisting in certain circumstances on the production of a full birth certificate, that could be made perfectly lawful by an arrangement sanctioned by the Minister under section 41. It seems to me that that would be the right way to do it. The Minister should take responsibility for it. He can be asked questions in Parliament about it. That is the way in which the problem can be solved.

Another alternative would be this: let the inspector ask any claimant for a full birth certificate - irrespective of his colour or race - if he thinks the circumstances are sufficiently suspicious to call for one.

I would only mention Reg. v. Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 W.L.R. 1037, which was before another division of this court. In that case discrimination was alleged against the immigration authorities. The court held that, in dealing with people coming in under the immigration rules, the immigration authorities were not providing "services" within the meaning of the Act. This case is very different. The revenue are providing "services" in regard to relief from tax or repayment of tax. Those services come within the provisions of the Act. If there is discrimination in the carrying out of those services, it is unlawful.

I think, therefore, that the appeal should be allowed.

JUDGMENTBY-2: TEMPLEMAN L.J

JUDGMENT-2:
TEMPLEMAN L.J: The Race Relations Act 1976 undoubtedly poses and is continually posing a large number of administrative difficulties both for the Crown and for large organisations; and in the present instance the Inland Revenue are to be treated with sympathy rather than criticism. Undoubtedly their task has been made more difficult by the Act if it applies to them. On the other hand, the Act was brought in to remedy very great evil. It is expressed in very wide terms, and I should be very

slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act. Nevertheless, of course, one must look at the Act and construe its provisions.

I begin with the Board of Inland Revenue which by section 1 (1) of the Inland Revenue Regulation Act 1890 was brought into existence by Her Majesty the Queen as persons "for the collection and management of inland revenue;" and by section 13 (1) of that Act the board were directed to "collect and cause to be collected every part of inland revenue, and all money under their care and management." By section 10 of the Income and Corporation Taxes Act 1970 a taxpayer, who proves that he has an infant child and that he has custody of and maintains the child at his own expense, is entitled to a deduction from his tax liability and a repayment of any consequential overpayment of tax which he has already suffered. By section 42 of the Taxes Management Act 1970 any claim by a taxpayer must be made to the Board of Inland Revenue, primarily to an inspector; and by subsection (7):

"The inspector or the board may give effect to any claim by discharge of tax or, on proof to the satisfaction of the inspector or the board that any tax has been paid by the claimant by deduction or otherwise, by repayment of tax."

So in every case the inspector has to be satisfied by the taxpayer that he is entitled to the relief.

By the combined effect of sections 1, 3, 20 and 75 of the Race Relations Act 1976 it is unlawful for any person - and that includes the Board of Inland Revenue and the inspector of taxes (see section 75) - "concerned with the provision ... of goods, facilities or services to the public" (section 20 (1)) to discriminate against any person on the ground of his "ethnic or national" (section 3 (1)) origin by treating him "less favourably" (section 1 (1) (a)) by refusing to provide him with services on the terms normally extended to others (see section 20 (1) (b)).

As Mr. Moses on behalf of the revenue submitted, the board and the inspector are performing duties - those duties laid upon them by the Act which I have mentioned - but, in my judgment, it does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer. The duty is to collect the right amount of revenue; but, in my judgment, there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that he is entitled to a deduction or a repayment, which will entitle him to know how he is to satisfy the inspector or the board if he is so entitled, and which will enable him to obtain the actual deduction or repayment which Parliament said he is to have. For present purposes, in my judgment, the inspector and the board provide the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.

Now if the inspector or the board make it more difficult for a taxpayer - who is entitled to relief, he does satisfy all the conditions - to obtain that relief than they do for other taxpayers, they are discriminating

in the provision of the service to the public and the service to him of enabling tax relief to be obtained.

On behalf of the revenue Mr. Moses submitted that the Race Relations Act 1976 does not apply to the Inland Revenue at all, but he naturally and wisely recoiled from the suggestion that the inspector of taxes might decline to interview a taxpayer if the taxpayer were coloured. He makes forcibly the submission that, when the board decides for sensible reasons that a higher standard of proof is required from taxpayers who come from the Indian sub-continent, the board are not providing a service to that taxpayer; they are carrying out their duty to the Crown. As I have already indicated, it does not seem to me that the two concepts are mutually exclusive. The board and the inspectors perform their duty and carry out a service and, in my judgment, it is a service within the meaning of section 20 of the Race Relations Act 1976. 

Mr. Moses relied on Reg. v. Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 W.L.R. 1037 where this court had to consider the very different case of the powers of the Secretary of State under the Immigration Act 1971. In relation to those powers, wide discretions are conferred on the Secretary of State. Ackner L.J. said, at p. 1043: "In my judgment, when the Secretary of State is exercising his discretion in relation to powers granted to him by the Immigration Act 1971, he is not providing a facility within the meaning of" the similar, almost identical, Sex Discrimination Act 1975.

In the present case, as I have indicated, subject to the question of proof, the taxpayer is absolutely entitled to the relief which he prays; and the Inland Revenue performs the service of enabling him to get the relief to which he is absolutely entitled. Accordingly, I do not think Reg. v. Immigration Appeal Tribunal, Ex parte Kassam stands in the way of our reaching the conclusion which I have mentioned.

As Lord Denning M.R. has pointed out, while the Act outlaws discrimination of the kind which has appeared in this case, the Act recognises that there may arise administrative and other difficulties of the kind set out in the letter from Sir William Pile, dated May 17, 1977, when he made the point that the actions of the Inland Revenue are not inspired by any desire to make life more difficult for those of non-Anglo-Saxon origin; they are inspired by their duty to collect the right amount of tax and by the evidence that amongst the immigrants from the Indian sub-continent there are false claims which must be exposed. I fully accept that the motives of the Inland Revenue in this case are perfectly aboveboard and proper; they have never been concealed. The board do not wish to discriminate. What they wish to do is to make quite sure they get the right amount of tax. The Race Relations Act 1976 itself recognises that some kind of discrimination may need to be authorised; and, as Lord Denning M.R. has pointed out, section 41 (2) (a) confers power on the appropriate Minister of the Crown. If he thinks it right to do so, if he considers that all the difficulties pointed out by Sir William Pile are so extreme and that the kind of discrimination which is now in question is necessary in order that the proper amount of revenue shall be obtained, and honest taxpayers shall not be exploited by those who   are dishonest, the Minister can approve the arrangements whereby the present practices of the revenue or something like it - perhaps something milder - are sanctioned. Of course the Minister will be accountable to Parliament, and there can be discussions about whether these
wholesale precautions are really necessary. This is a politicians' problem rather than a Civil Service problem, and it is upon the politicians that the responsibility should be left, in my judgment, of providing any exceptions to the wide words of the Race Relations Act 1976 and the obvious intention by that Act to burn out what has been the serious evil of racial discrimination.

Accordingly, in my judgment the appeal should be allowed. The judge was faced with Reg. v. Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 W.L.R. 1037 and he drew the arguable distinction between advice and decision. I recognise the force of that point in the same way asI recognise the force of the argument submitted by Mr. Moses. But, balancing these things, I have in mind no doubt that for the purposes of section 20 the Board of Inland Revenue and the inspectors are providing services and must therefore have regard to the Act. As Lord Denning M.R. said, it is a short, interesting and not easy point which was well argued by Mr. Macdonald on behalf of the plaintiff and by Mr. Moses on behalf of the Inland Revenue. I agree that the appeal should be allowed.

JUDGMENTBY-3: DUNN L.J

JUDGMENT-3:
DUNN L.J: I have felt more difficulty than Lord Denning M.R. and Templeman L.J. in deciding that in the action they took in relation to the plaintiff's claim for child benefit the defendants were providing services to the public or a section of the public. If they were not, then, however discriminatory the practice set out in Sir William Pile's letter of May 17, 1977, might be, it would not be unlawful under section 20 of the Race Relations Act 1976. I find considerable force in the argument of Mr. Moses for the defendants that, in considering the proof required to support the plaintiff's claim to tax relief, the inspector was concerned with his statutory duty under the Taxes Management Act 1970 and the Income and Corporation Taxes Act 1970 and was not concerned with the provision of any services, even though the statutory duty involved the giving of advice. Mr. Moses submitted that all the inspector was concerned with was to decide the correct amount of tax payable by the plaintiff since, under the Income and Corporation Taxes Act 1970, child benefits fell to be deducted from the total tax payable. 

However, having heard the judgments of Lord Denning M.R. and Templeman L.J., I am not prepared to dissent from them; though, in agreeing sthat the appeal should be allowed, I do so with some doubt and hesitation.

DISPOSITION:
Appeal allowed with costs in Court of Appeal and below.

Leave to appeal.

SOLICITORS:
Solicitors: Bindman & Partners; Solicitor of Inland Revenue.

A. H. B.

(C)2001 The Incorporated Council of Law Reporting for England & Wales