The Commissioners for HMRC v BZ

For the special backdating provision for refugees, a notification of refugee status is not effective to start the three-month period if it positively states that the claimant cannot claim benefits until a later event. Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, regulation 6(2)(d), must be construed purposively and fairly. A notification which denies the very entitlement whose time limit it would otherwise trigger is invalid for that purpose. The period begins when the error is corrected, such as when the relevant residence permit is received or a later communication confirms that benefits may be claimed.

The respondent claimed asylum in February 2016 and received asylum support. Her asylum claim was granted, and she was notified of that decision on 18 May 2019. The accompanying Home Office correspondence stated that she could not claim benefits until she received a biometric residence permit.

She received the permit in late August 2019 and claimed Child Benefit on 16 September 2019. HMRC allowed entitlement only from 17 June 2019, treating the May notification as starting the three-month period under regulation 6(2)(d) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003. The First-tier Tribunal allowed her appeal and ordered backdating to April 2016. HMRC appealed, raising whether the May correspondence was effective notification for regulation 6(2)(d).

1. Appeal dismissed. The First-tier Tribunal reached the correct result, although some of its reasoning was different. The respondent’s Child Benefit claim was in time for backdating to April 2016.
2. Regulation 6(2)(d) requires a record of refugee status and notification of that record. A letter stating only that asylum had been granted and leave to remain provided sufficient notification. A biometric residence permit is evidence of immigration status, but is not itself the initial notification.
3. The May correspondence had to be read as telling the respondent that she could not claim any state benefits, including Child Benefit, until she received the permit. The references to benefits were unqualified. References to the DWP and the absence of a specific reference to HMRC did not alter that meaning.
4. The statutory language had to be construed purposively. The court relied on the approach in Uber BV v Aslam [2021] UKSC 5, R (on the application of Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875 and R (on the application of Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3. The relevant provisions had a benevolent purpose: to enable refugees to recover Child Benefit for the period when they were excluded from it while their asylum claim was pending.
5. Applying R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] UKHL 36, it was fundamentally unfair for the notification which would otherwise start the period to deny the entitlement. The May notification was therefore invalid for regulation 6(2)(d) until the error was corrected. That occurred no later than the September communication confirming that benefits could be claimed. The claim received on 16 September was consequently in time.
6. The possible availability of judicial review or damages did not affect the construction or application of the Regulations. Tkachuk v Secretary of State for Work & Pensions [2007] EWCA Civ 515 was not relied on as decisive; its relevant observation was obiter. The Qualification Directive and the Immigration Rules were likewise not decisive.

• Upper Tribunal (Administrative Appeals Chamber): HMRC’s appeal against the First-tier Tribunal’s decision was dismissed. The Upper Tribunal held that the respondent’s Child Benefit claim was made within the relevant period under regulation 6(2)(d) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003.
• First-tier Tribunal (Social Entitlement Chamber): appeal allowed and Child Benefit was directed to be backdated to the child’s birth in April 2016. The Upper Tribunal found no material error of law.