Claiming
Why make a protective claim before the Supreme Court decides?
Short answer
Because the four-year limit keeps running while HMRC appeals. A claim for VAT charged in error only reaches back four years from the end of each VAT period, and the Supreme Court is unlikely to decide St Patrick's before 2028. A claim made now protects the periods from autumn 2022 onwards. Periods you do not claim for drop out of time month by month, whatever the Supreme Court decides.
The timetable
| Stage | Date | Outcome |
|---|---|---|
| Supplies in the case | 1 December 2012 to 6 August 2017 | HMRC assessed the colleges for VAT |
| First-tier Tribunal | 3 May 2023 | HMRC won |
| Upper Tribunal | 24 March 2025 | HMRC won |
| Court of Appeal | Heard 16 and 17 June 2026, judgment 6 July 2026 | Colleges won |
| HMRC Brief 9 (2026) | 2 September 2026 | Providers in the same position can submit claims, reviewed case by case |
| Supreme Court | Permission to appeal granted, no hearing date seen | Decision unlikely before 2028 on our VAT specialist's estimate |
What waiting would cost
Suppose the Supreme Court decides in 2028 and you claim then. The claim could only reach back to 2024. Every period from autumn 2022 to the end of 2023 would be lost, and those are the periods with the clearest legal footing, because since 1 January 2024 UK VAT law can no longer be set aside for conflicting with EU law. A claim made now keeps them. The worked examples put figures on it.
How a protective claim works
A protective claim is an ordinary claim under section 80 of the VAT Act 1994, made now so that older periods do not fall out of time while the law is uncertain. HMRC's Brief 9 (2026) does not use the phrase. It says alternative providers who believe they are in the same position as St Patrick's International College can submit a claim, and that it will review claims case by case.
- Work out the VAT accounted for on the relevant courses for each period still in time.
- Take off the input tax that would not have been recoverable, using a partial exemption method that fits your business.
- Tell HMRC about the errors with full workings. Since 8 September 2025 this is done online or in writing, because form VAT652 has been withdrawn.
- Add each new year's periods while the appeal runs, so nothing drops out.
- Agree with HMRC how the courses are treated from now on.
What a protective claim does not do
- It does not guarantee a repayment. If HMRC wins in the Supreme Court, claims that rely on the ruling are expected to fail.
- HMRC has not said whether it will pay claims now or hold them until the appeal is decided. If it pays and later wins, section 80(4A) lets it assess to recover the money.
- It does not mean you should stop charging VAT. HMRC's policy is unchanged. See HMRC Brief 9 (2026).
Why the Supreme Court could go either way
The Court of Appeal was bound by its own earlier decision in LIFE [2020] EWCA Civ 452, and said so. Lord Justice Lewison said whether that decision was right "is not for us to say". Lord Justice Miles, giving the main judgment, saw considerable force in HMRC's position but did not need to decide HMRC's other arguments, because the appeal succeeded on the first ground. The Supreme Court is not bound by LIFE. That uncertainty is the reason to protect your position now rather than wait for the outcome. See the Supreme Court appeal.
Sources
- VAT Act 1994 section 80: legislation.gov.uk
- Check how to tell HMRC about VAT Return errors, including the withdrawal of form VAT652: GOV.UK
- VAT Notice 700/45, correcting errors and making claims: GOV.UK
- Revenue and Customs Brief 9 (2026): GOV.UK
- St Patrick's International College Ltd & Ors v HMRC [2026] EWCA Civ 852: caselaw.nationalarchives.gov.uk
- Finance Act 2024 section 28, interpretation of VAT law from 1 January 2024: legislation.gov.uk