[2025] UKUT 166 (AAC)

Again I can take this point shortly.

By s.4(2)(a) of the 2014 Act

“A declaration of eligibility made by a person for an entitlement period is “valid” for the purposes of this Act if—

(a)

HMRC [is] satisfied that the person is an eligible person for the entitlement period”.

HMRC was clearly so satisfied because the claimant’s application was granted. That was the Tribunal’s finding of fact as to HMRC’s position. If HMRC was not satisfied that he was eligible, his application would not have been successful.

In this respect, the position is very similar to that in HMRC v Secretary of State for Work and Pensions and GS in which I considered a regulation which also contained a requirement that the Secretary of State “is satisfied that the claimant meets [the relevant conditions]” (see [17]). I explained that that meant considering whether, as a matter of fact, the Secretary of State was so satisfied. It was not necessary to consider whether the Secretary of State should properly have been satisfied:

“25.

The language of [the relevant regulation], particularly the statutory focus of it applying where a claim ‘is’ made and where the Secretary of State ‘is’ satisfied, is the language of fact. The language used is not concerned with any wider issue of whether the claim was properly made or the Secretary of State was properly satisfied that the specified basic conditions were met. Had that been the intention then such language could have been used…

26.

Put shortly, the relevant issue for the Tribunal was limited to whether the Secretary of State was (i.e. in fact) satisfied, and not whether he was entitled to be satisfied, that the [relevant] conditions ... were met.”

In the course of my decision I also referred to the decision of the three-judge panel (of whom I was one) in the case of HMRC v (1) Secretary of State for Work and Pensions (2) SA (TC) [2022] UKUT 350 (AAC) (“SA”) in which we said

“31.

Regulation 8(2) of the UC TP Regs provides that where regulation 8 applies, a tax credit award is “to terminate by virtue of this regulation.” In other words, the

tax credit award is to cease by operation of law if regulation 8 applies. Whether regulation 8 applied at the material time in our judgment involved no more than two questions of fact, which had to be determined on relevant evidence. First, whether a claim for universal credit had been made. A claim for universal credit plainly had been made in this case and the same was and is not disputed. Second, whether the Secretary of State was in fact satisfied that the claimant met the basic conditions specified in s.4(1)(a) to (d) of the 2012 Act. That factual question in our judgment was answered affirmatively by the stop notice which was received by HMRC from the Secretary of State on HMRC on 25 June

2018.

Again, even though the stop notice was not before the FtT or us (though we set out below the information provided to us concerning how these stop notices were generated), the claimant does not dispute that the stop notice in fact concerned him and stated that the Secretary of State was satisfied that he met the basic conditions specified in s. 4(1)(a) to (d) of the 2012 Act. Once these two questions of fact had been determined, the only remaining question for the FtT arising under regulations 8 and 12A of the UC TP Regs was the correct date of termination of the tax credits award under regulation 8(2) of the UC TP Regs.

32.

The language of regulation 8(1) of the UC TP Regs, particularly the statutory focus of it applying where a claim ‘is’ made and where the Secretary of State ‘is’ satisfied, is the language of fact. The language used is not concerned with any wider issue of whether the claim was properly made or the Secretary of State was properly satisfied that the specified basic conditions were met. Had that been the intention then such language could have been used. Perhaps more importantly, however, there is no sound basis for reading in language such as “properly satisfied” by necessary implication when to do so would involve HMRC trespassing on the decision making functions for universal credit for which it has no statutory authority otherwise conferred on it.”

I am satisfied that that reasoning applies equally to s.4(2)(a) of the 2014 Act.

Moreover, HMRC’s position is consistent with s.30(11) of the 2014 Act which confirms that HMRC can, in due course, change its view about an individual’s eligibility, but that any such change does not impact anything which occurred by reason of s.30 (in other words, a change in its view as to eligibility does not impact a prior termination of tax credits).

HMRC was therefore satisfied as a matter of fact that the claimant was an eligible person; thus the requirements of s.4(2)(a) were met and the declaration of eligibility was valid. The correctness of the decision in Hinchy (as to which see my comments in MW v Secretary of State for Work and Pensions (ESA) [2023] UKUT (AAC) 50 at [25]-[38]) does not therefore arise for determination.