CB v HMRC & Anor

Child benefit entitlement is not determined exclusively by where a child lives. A person may be responsible for a child either because the child lives with that person or because that person contributes to the cost of providing for the child at at least the weekly child-benefit rate. Where competing claimants qualify by different routes, the claimant with whom the child lives has statutory priority.

Section 13(2) of the Social Security Administration Act 1992 is a default bar on duplicate retrospective payment, not an absolute rule. Regulation 38 of the Child Benefit (General) Regulations 2006 creates limited exceptions where an earlier payment is recoverable following a final decision, or has been repaid or recovered. A tribunal must identify the statutory route relied on and make adequate findings on the material evidence.

The mother appealed against a First-tier Tribunal decision dismissing her appeal from HMRC’s refusal of her child-benefit claim for her daughter. The father had already received child benefit. The mother accepted that her daughter was not living with her, but contended that the daughter had lived with her boyfriend’s family for part of the material period and that the mother was providing sufficient financial support.

HMRC had refused the claim for three successive periods: first because benefit had already been paid to the father; secondly under the priority rules for a new competing claim; and thirdly because the father was said to be the person with whom the child lived. The First-tier Tribunal treated prior payment and the absence of co-residence with the mother as decisive. The central issues were whether those approaches were legally correct and the extent of the tribunal’s jurisdiction concerning the period before the mother’s claim.

1. Appeal allowed. The First-tier Tribunal erred in law, its decision was set aside, and the appeal from HMRC’s decision was remitted to a differently constituted First-tier Tribunal for an oral rehearing.

2. The First-tier Tribunal wrongly treated section 13(2) of the Social Security Administration Act 1992 as an absolute bar because child benefit had already been paid to the father. It is the default rule, but regulation 38 of the Child Benefit (General) Regulations 2006 provides two limited exceptions. Those exceptions arise where an overpayment decision is final and the payment is recoverable, or where the earlier payment has been repaid or recovered.

3. The tribunal also wrongly treated the child’s failure to live with the mother as the decisive fact. Under sections 141 and 143(1) of the Social Security Contributions and Benefits Act 1992, responsibility may arise either from the child living with the claimant or from qualifying financial contributions. The mother relied on the latter route. The tribunal had to make findings on where the child was living and, if the father was not living with her, determine whether the mother’s support met the statutory threshold. A claimant qualifying through residence has priority over one qualifying only through contributions.

4. For the period before the mother’s claim, and in respect of benefit already paid to the father, the new tribunal has no jurisdiction to reopen or supersede the father’s award merely through the mother’s appeal. Subject to the regulation 38 conditions, it should concentrate on the later period governed by the third part of HMRC’s decision.

5. The new tribunal must assess the available evidence independently on the balance of probabilities. Evidence from the earlier hearing remains relevant despite the setting aside of the decision. A witness summons may be sought under rule 16, but its issue remains subject to the overriding objective and proportionality.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the mother’s appeal, set aside the First-tier Tribunal decision for errors of law, and remitted the matter for rehearing by a differently constituted tribunal: [2016] UKUT 506 (AAC).
• First-tier Tribunal: On 1 May 2015, dismissed the mother’s appeal against HMRC’s refusal of her child-benefit claim.