Secretary of State for Work and Pensions v AE

A decision by HMRC terminating a child benefit award for failure to provide information ends the claimant’s entitlement from the prescribed date; it is not merely a suspension of payment. That decision is a supersession decision and remains binding unless successfully appealed, revised or superseded.

Entitlement to child benefit also requires a claim covering the relevant period. A previous claim ceases to subsist once decided, and a later claim normally operates retrospectively only within the prescribed period. Where entitlement to child benefit is a statutory condition of another benefit, the authorities administering that other benefit cannot disregard HMRC’s final decision or conduct their own assessment of child benefit entitlement.

The claimant received widowed parent’s allowance, entitlement to which depended on being entitled to child benefit. HMRC terminated his child benefit award with effect from 29 July 2019 after he failed to provide requested information. He made a fresh claim on 20 January 2022, and child benefit was awarded from 25 October 2021.

The Secretary of State decided that the claimant had been overpaid widowed parent’s allowance between 29 July 2019 and 24 October 2021. The First-tier Tribunal allowed his appeals, holding that he remained entitled to child benefit even though it was not being paid. The central issue before the Upper Tribunal was whether the claimant remained entitled to child benefit during the intervening period.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decisions contained errors of law. The first decision was set aside and remade by dismissing the claimant’s appeal against the decision that he had been overpaid £13,546.54 in widowed parent’s allowance between 29 July 2019 and 24 October 2021. The issue of recoverability under section 71 of the Social Security Administration Act 1992 was remitted to a freshly constituted First-tier Tribunal.

2. The FTT wrongly treated HMRC’s action as stopping payment while leaving entitlement intact. Regulations 18 to 20 of the Child Benefit and Guardian’s Allowance (Decisions and Appeals) Regulations 2003, made under sections 21 to 23 of the Social Security Act 1998, distinguish suspension of payment from termination of entitlement. Regulation 20 requires HMRC to decide that the person ceases to be entitled from the date on which payment was suspended.

3. HMRC’s decision was therefore a termination and supersession decision. Under section 17(1) of the Social Security Act 1998, it was final and binding unless successfully appealed, revised or superseded. The FTT could not conduct its own assessment of whether the claimant satisfied the underlying conditions for child benefit.

4. A claim is a foundational condition of entitlement to child benefit under section 13(1) of the Social Security Administration Act 1992. The earlier claim ceased to subsist once it had been decided, under section 8(2) of the Social Security Act 1998. The later claim could operate only for the prescribed three-month period under regulation 6(1) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003.

5. The phrase “entitled to child benefit” in section 39A(2)(a) of the Social Security Contributions and Benefits Act 1992 had to be read consistently with section 13(1) of the Social Security Administration Act 1992. The two Acts were to be read together, subject to avoiding manifest discrepancy. The claimant therefore was not entitled to child benefit, and consequently was not entitled to widowed parent’s allowance, during the relevant period.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Secretary of State’s appeal against the First-tier Tribunal decisions of 12 April 2024, set those decisions aside, remade one decision by dismissing the claimant’s appeal, and remitted the recoverability issue to a freshly constituted First-tier Tribunal.
• First-tier Tribunal (Social Entitlement Chamber): allowed the claimant’s appeals and set aside the Secretary of State’s decisions concerning the overpayment and its recoverability.