HMRC v JA

An appeal tribunal hearing an appeal against an outcome decision stands in the shoes of the original decision-maker. It may decide any issue necessary to determine entitlement, including a condition not addressed in the original decision. If one condition is found satisfied, the tribunal must consider the remaining relevant conditions, subject to procedural fairness. Failure to do so is an error of law.

HMRC appealed against a First-tier Tribunal decision that JA was entitled to Guardian’s Allowance for his four step-children. HMRC had refused the claim because JA had stated that he knew the whereabouts of their father. The First-tier Tribunal accepted that JA knew only the general geographical area, not the father’s address, and treated the whereabouts condition in section 77(b) of the Social Security Contributions and Benefits Act 1992 as satisfied.

The First-tier Tribunal declined to consider whether JA had made all reasonable efforts to discover the father’s whereabouts, because that issue had not been stated in HMRC’s original decision or mandatory reconsideration notice. The central issue was whether that approach was an error of law.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside under section 12(2)(a) and section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, and the appeal was remitted to a fresh First-tier Tribunal.
2. Section 12(3D) of the Social Security Act 1998 requires an appeal against the original decision in a Guardian’s Allowance case to follow HMRC’s decision not to revise it. That requirement was satisfied. It did not confine the First-tier Tribunal to issues expressly determined in HMRC’s decision.
3. Following R(IB)2/04, an appeal tribunal stands in the shoes of the decision-maker on the claim. It may make any decision which the decision-maker could have made, including deciding new questions necessary to reach the right result. The appeal was against the outcome decision that JA was not entitled to Guardian’s Allowance. The individual conditions in section 77 were the building blocks of that outcome decision.
4. Once the First-tier Tribunal found that JA had been unaware of the father’s whereabouts, it had to consider the remaining reasonable-efforts condition. HMRC had identified that issue in its submissions and addressed the evidence. If the tribunal considered it unfair to decide the issue without further opportunity for JA to respond, it could have adjourned. Its failure to address the relevant condition before deciding entitlement was an error of law.
5. The case was remitted for reconsideration by a tribunal whose members were not involved in the earlier decision. Further evidence was to be filed within one month, and the remitted tribunal was not bound by the decision set aside.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision dated 14 August 2024 was set aside and remitted to a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): decided that JA was entitled to Guardian’s Allowance after accepting that the whereabouts condition was satisfied, but did not decide whether the reasonable-efforts condition was met.