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IN THE UPPER TRIBUNAL Appeal No. UA-2023-001611-TC
(ADMINISTRATIVE APPEALS CHAMBER) UA-2023-001612-TC
On Appeal from the First-tier Tribunal (Social Entitlement Chamber) SC946/19/02420 – SC946/21/00244
BETWEEN
Appellant CMH
and
Respondent HIS MAJESTY’S REVENUE AND CUSTOMS
BEFORE UPPER TRIBUNAL JUDGE WEST
Decided after an oral hearing on 26 February 2025: 2 June 2025
Representation: Mr Hudi Ellinson, accountant, for the Appellant
(Haffner Hoff Ltd)
Mr Simon Pritchard, counsel, for the Respondent
(instructed by HMRC)
ON APPEAL FROM
Tribunal: First-tier Tribunal (Social Entitlement
Chamber)
Tribunal Venue: Manchester
Tribunal Case No: SC946/19/02420 – SC946/21/00244
Tribunal Hearing Date: 27/6/2023
Summary of Decision S.30 Childcare Payments Act 2014 – whether claimant made “declaration of eligibility” - if so, was it a valid declaration of eligibility? - if Upper Tribunal must consider eligibility for itself, was claimant in fact ineligible because in receipt of “other relevant childcare support” at relevant time? – whether s.30 ceased to have effect before claimant made declaration of eligibility – whether HMRC vRS (No.2) (TC) [2022] UKUT 246correctly decided in its interpretation of Article 7(6) of the Welfare Reform Act2012 (Commencement No.23 and Transitional and Transitory Provisions) Order2015 and whether it should be followed
Keyword Name 33 Tax credits and family credit
Please note that the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and the Reasons of the Judge follow.
DECISION
- Heading
- Section 1
- w as HMRC v RS (No.2) (TC) [2022] UKUT 246 correctly decided in its interpretation of Article 7(6) of the Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order
- SC946/21/00244 (on appeal UA-2023-001612-TC ) dated 9 December 2020 that he had made a valid declaration of eligibility for tax-free childcare and so his entitlement to tax credits was correctly termi
- SC946/19/02420 (on appeal UA-2023-001611-TC ) dated 9 August 2019 that he was not able to make a new claim for tax credits for any period after 19 March 2019
- The Tribunal’s Statement of Reasons
- The Statutory Framework
- The Claimant’s Submissions
- entitlement period and therefore terminated his tax credits award immediately prior to that date following that termination, HMRC issued various decision notices and other notices, which were subject to a previous appeal. The Upper Tribunal in UA-202
- the 2018/2019 tax year. The decision notice was issued to the claimant on 11 December 2020
- Ground 2: The alleged “declaration of eligibility” was not “valid”
- he was in fact an eligible person, because tax credits were not payable in respect of the relevant period
- Issues raised by HMRC
- Ground 3: S.30 of the 2014 Act no longer applies
- UA-2023-001611-TC
- in relation to Appeal SC946/21/00244 (“Appeal 1”): on 14 March 2019, the
- in relation to Appeal SC946/19/02420 (“Appeal 2”): he was not permitted to apply for tax credits in August 2019
- Factual Background
- The TFC Scheme
- Appeal 1
- The Legal Framework
- by s.5(1) the length of the “entitlement period” is 3 months, subject to any regulations altering that length
- the day on which the declaration was made was 14 March 2019. This was the claimant’s first application
- the “relevant day” was 20 March 2019
- The declaration question
- https://webarchive.nationalarchives.gov.uk/ukgwa/20190317223446/https:/www.gov.uk/tax-free-childcare which contained the portal which the claimant would have used to make his application
- ( https://webarchive.nationalarchives.gov.uk/ukgwa/20190321044737/https:/www.gov.uk/apply-30-hours-free-childcare )
- The validity question
- in this regard, the position is similar to that in HMRC v Secretary of State for Work and Pensions and GS [2023] UKUT 9 (AAC) where the Upper Tribunal considered a regulation containing a requirement
- The “other relevant childcare support” question
- HMRC’s non-ministerial position is also clear from the Explanatory Notes to the 2005 Act
- if he is right, a recipient of the childcare element of WTC would necessarily
- The ceasing to have effect argument
- comity: should the Upper Tribunal follow RS (No.2) in the interests of comity?
- The Legal Framework
- RS (No.2)
- Comity
- The “for the next tax year” argument
- Discussion
- The validity question
- The “other relevant childcare support” argument
- The ceasing to have effect argument
- Appeal 2
- Conclusions