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Summary

The parents of a child were separated. Originally it was agreed that the child should live with the mother, who continued to receive child benefit. A few years later, however, the father submitted a competing claim for child benefit, asserting that following a dispute the child had come to live with him. That was disputed by the mother. What followed was a complex series of HM Revenue and Customs (HMRC) decisions and (eventually) two First- tier Tribunal hearings, forming what Upper Tribunal Wikeley describes as a ‘catalogue of procedural errors’ (paragraph 3). Both First-tier Tribunals awarded child benefit to the mother.

Judge Wikeley allowed the father’s appeal in both cases, but without deciding the substantive issue of who was entitled to child benefit for the child, a question that was remitted to a fresh tribunal. The first tribunal had erred in failing to join the father to the appeal (and in that he never saw the papers or was given the opportunity to attend the hearing), so breaching the rules of natural justice (paragraph 28). The second tribunal erred in proceeding when it had no jurisdiction, as the decision appealed against (by the father) was a misleading HMRC ‘decision’ following the first tribunal, which in fact was not a decision properly so called and carried no right of appeal (paragraph 31).

More widely, the judge made substantial criticism both of the HMRC's decision making and the tribunal's handling of these appeals. It was ‘difficult to know where to start’ in describing where HMRC had gone wrong. There were at least three obvious problems. Firstly, HMRC decision makers were ‘utterly confused as to the scope of their own powers in determining child benefit claims’ (paragraph 25). This had resulted in HMRC wrongly asserting that certain of its decisions in this case did not carry a right of appeal. Secondly, HMRC decision makers were ‘hopelessly confused about the effect of a decision by the First-tier Tribunal’. This led to them writing to the father after the first tribunal with a purported revision that in fact they had no power to make, a problem which, combined with a history of similar problems in other cases, led the judge to conclude that ‘there appears to be a systemic ignorance with HMRC of the basic architecture of decision making under the Social Security Act 1998’ (paragraph 26). Thirdly, this ‘double confusion’ was reflected in letters sent to both parents – eg, telling the mother in the same letter that she had no right of appeal and that she did have a right of appeal (paragraph 27).

Decision in brief

Quashed by RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) – amendments were invalid from the time that they were made by virtue of the retrospective effect of the quashing order when it came into force

Decision in brief

Tribunal hearing an appeal against that decision, which decides that there is no entitlement for the year, should not reproduce that as it is legally incorrect – however, where there has since been a final decision for the year under section 18 of the Tax Credit Act 2002, the in-year section 16 decision in any case ceases to have legal effect and cannot still be the subject of an appeal, although any appeal against the section 18 decision can go ahead (LS and RS v HMRC [2017] UKUT 257 (AAC) applied)

Decision in brief

Regulation 12(1)(d) of the Housing Benefit Regulations 2006 – reference to ‘use and occupation’ of the dwelling is to be interpreted according to the decision in R v Bristol City Council ex parte Mrs J Jacobs [2000] 32 HLR 841 (ie, as reference to payments to a landlord, not in respect of a licence to use water) – contrary reasoning in CH/0844/2002 disapproved

Comment from CPAG

In CH/0844/2002, it was also accepted that as ‘mooring charges’ for a houseboat were eligible, that could also cover, under what is now regulation 12(1)(f), both a mooring permit and a boat licence fee payable to British Waterways. That part of the decision was not addressed in the present decision, presumably because it did not arise on the facts.

Decision in brief

Although PIP and ESA are separate benefits and there is no question of an award of one binding a tribunal regarding the other, evidence given in respect of one may still be relevant to another – nor is there anything to prevent an argument on one benefit based on an analysis of an award of the other (LC v SSWP [2015] UKUT 32 (AAC) cited and approved) – proper role of the tribunal is to assess the evidence presented to it, and the tribunal should deal with evidence if the claimant or her/his representative has specifically relied on it

Decision in brief

Concession by Secretary of State that lip reading is not an acceptable way to interpret verbal communication – concession accepted in SB v SSWP and that ‘pragmatic approach’ adopted here – as long as Secretary of State continues to make this approach, then tribunals should take same approach – if Secretary of State changes her position, then issue of lip reading may need to be subject of a binding decision of the Upper Tribunal, but not at present

Decision in brief

Property jointly owned by claimant and daughter and occupied by the daughter and her son – application of regulation 51 of the Housing Benefit Regulations 2006 – District Valuer valued the claimant’s interest – did not have to provide evidence of the existence of a local market as ‘there is a market for interests that do not allow immediate exclusive possession. That may not be widely known among claimants, but it has been referred to in a number of Upper Tribunal decisions. It may not be easy to provide evidence of that market, but its existence is not in doubt.’

Comment from CPAG

It is not clear that the judge’s view that there is a market for part shares in such circumstances commands widespread assent, at least in the context of regulation 51 and without clear evidence of sales in similar cases (see for example CH/1953/2003, and the commentary in CPAG’s Housing Benefit and Council Tax Reduction Legislation, 2017/18, pp465–6).

Decision in brief

RJ, GMcL and CS v SSWP; SSWP v RJ [2017] UKUT 105 (AAC) is not authority that someone with cochlear implants who needs to remove them when bathing will always score points under descriptor 4c – RJ said there was an indication of need for supervision in such circumstances, but award requires judgement on the individual facts of the case – but it is not correct to say that a claimant can be expected to minimise risk by limiting the time taken to bathe (EG v SSWP (PIP) [2017] UKUT 101 applied)

Decision in brief

Interview was for 9am but claimant said he only received the notification letter in the afternoon – it is inherent in the nature of a notification that can lead to a sanction for failure to comply that it does not take effect unless and until it is received – whether it was received on time is a question of fact – if it was not, then the issue of good reason for not attending does not arise – absence of a history of undelivered mail does not necessarily undermine the claimant’s case

Decision in brief

Prior to rule change on 16 November 2017, no definition of the ‘amount of any income foregone’ in regulation 18 of the State Pension Credit Regulations – where the assets of the plan were less than the claimant’s initial investment, withdrawals from the plan were capital and could not be notional income – from 16 November 2017, rule change provided that the ‘amount of income foregone’ is the amount of an annuity which may have been purchased with the fund