[2025] UKUT 186 (AAC)

I agree with the Secretary of State’s arguments and will explain why I do so shortly. In essence, the FTT’s two critical errors were (i) its failure to work through the legal effect of HMRC’s decision to terminate the claimant’s award of child benefit, and (ii) its failure to recognise or accept that to be entitled to child benefit for the missing period of 29 July 2019 to 24 October 2021 the claimant had to have made a claim for child benefit which covered that period. As a matter of law, a claim for child benefit is as foundational to entitlement to that benefit as, per section 141 of the SSCBA, the claimant having a child or young person for whom he was responsible for each of the weeks during that missing period.

Before providing that explanation, however, I should address the possible need to stay these appeal proceedings because the claimant may have an appeal against HMRC’s decision of 23 March 2020 to terminate his entitlement to child benefit from and including 29 July 2019. The Secretary of State at and before the hearing before me fairly recognised that if there was such an appeal, and with it the possible consequence that the termination decision would be overturned and entitlement to child benefit restored from 29 July 2019, that would bear on the proper disposal of this appeal.

However, as I have set out above, the last adjudication on this child benefit issue, on the claimant’s own case, is the FTT’s decision of 6 June last year, and that decision brought that appeal to an end. The effect of that FTT’s decision is that HMRC’s termination decision remains in place as a final decision on that issue, as there has been no substantive adjudication by the FTT on that issue.

Nor is there anything to indicate that there is any active challenge to FTT’s decision of 6 June 2024. Having made further enquiries of the FTT’s records since the oral hearing, I have identified that the 6 June 2024 decision (under FTT reference SC242/22/01923) struck out the claimant’s late appeal against HMRC’s termination decision of 24 March 2020. That strike out decision was made under rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (“the FTT Rules”) and was because the appeal was not made in time and there were no exceptional circumstances that justified extending time beyond the fixed maximum time limit of 13 months. The FTT gave short form reasons for its decision on 6 June 2024. The FTT then, pursuant to rule 38(7)(a) and (b) of the FTT Rules, treated the claimant’s email of 25 August 2024, or a letter he wrote two days after this email, as a request for a statement of the reasons for its decision of 6 June 2024, instead of being an application for permission to appeal against the 6 June decision. Those full reasons were made by the FTT on 17 September 2024 and issued to the parties the next day. The next step, if he wished to do so, would then have been for the claimant to have applied to the FTT for permission to appeal against the 6 June 2024 decision. There is no evidence before me showing he has done so since 17 September 2024.

I record in any event the views of the Secretary of State on whether the claimant would be able to take any steps to have his WPA restored for the period 29 July 2019 to 24 October 2021 if he is able to have his entitlement to child benefit restored for this period. I need do no more than set out the text of the letter the Secretary of State’s lawyers sent to the Administrative Appeals Chamber the day after the hearing of the appeal on 6 March 2025.

“I refer to the hearing of the above appeals on 6 March 2025 before Upper Tribunal Judge Wright, following which the Tribunal reserved judgment. I would be grateful if this letter could be placed before the Judge for his consideration.

During the course of the hearing, the Judge asked the Secretary of State to confirm, following the hearing, whether, (i) if the Tribunal allowed the Secretary of State’s appeals and decided that the [claimant] was not entitled to widowed parent’s allowance in the period from 29 July 2019 to 24 October 2021; and (ii) the [claimant] later succeeded, in proceedings between him and the Commissioners for His Majesty’s Revenue and Customs (“HMRC”), in establishing that HMRC’s decision of 24 March 2020 should not have been made, the Secretary of State would be able to supersede the Upper Tribunal’s decision, with the effect that the [claimant] would be treated as entitled to widowed parent’s allowance in the period between 29 July 2019 to 24 October 2021. The Secretary of State has considered the Tribunal’s question. She does not consider that there is any clear means, under the relevant statutory provisions, by which she could make a supersession decision which had that effect.

The Secretary of State has reflected further. She considers that, if the [claimant] were successful in his proceedings against HMRC, he would be able to make a new claim to widowed parent’s allowance, which would be treated as made on 25 October 2021. That is the effect of reg.6(19), read with reg.6(20)(a) of the Social Security (Claims and Payments) Regulations 1987, because widowed parent’s allowance is a relevant benefit (see reg.6(22)), and for this purpose, child benefit would be a qualifying benefit (reg.6(22)). Accordingly, the Secretary of State submits that the Tribunal could allow her appeal, without causing any injustice to the [claimant] if he later succeeded in proceedings against HMRC.”

In these circumstances, the lack of any appeal against the FTT’s decision of 6 June 2024 and the ability of the Secretary of State to make an award of WPA for the period 29 July 2019 to 24 October 2021 if the claimant were to be able to restore his entitlement to child benefit from and including 29 July 2019, I do not consider there is any need for me to stay deciding this appeal

I turn therefore to explain why I consider the Secretary of State is right in her arguments and the FTT was wrong in its view that the claimant continued to satisfy section 39A(2)(a) of the SSCBA (being “entitled to child benefit”) from 29 July 2019.

I start with why the claimant’s child benefit award was terminated from 29 July 2019 and the legal basis and effect of HMRC’s decision of 24 March 2020 to terminate that award. The FTT had evidence before it, at page 5 of Addition F, in the form of HMRC’s letter of 24 March 2020, which told the claimant he was no longer entitled to child benefit, his payments of child benefit would stop from 29 July 2019 and that this decision had been made because the claimant had not supplied HMRC with information it had requested from him earlier. That letter went on to describe what the claimant should do if he thought the decision as wrong.

The FTT was aware of this decision of HMRC but considered that although it referred to the claimant not being entitled to child benefit, this was standard wording used by HMRC “to also capture the situation where an award is terminated on account of a claimant not furnishing HMRC with information it asked for”. It is plain from the earlier reasoning of the FTT that by “award is terminated” the FTT meant only that payment of the award was stopped. The FTT gave no further reasons for why it considered HMRC was lawfully able to terminate the payment of child benefit in such circumstances. For the reasons given by the Secretary of State, in my judgement there was no lawful basis for HMRC to stop the payment of child benefit, but continue the entitlement to that benefit, in the circumstances before the FTT. The FTT was wrong to conclude otherwise.

HMRC had previously decided that the claimant was entitled to child benefit and made an award of child benefit to him. That was a final decision by HMRC under section 17(1) of the SSA as by sections 50 and 53 of the Tax Credits Act 2002 the function of the Secretary of State for Work and Pensions in Chapter 2 Part I to the SAA (which includes sections 8-23 of the SSA) were transferred to HMRC in respect of its administration and decision-making in respect of child benefit. Accordingly, HMRC could only change the earlier decision which had awarded the claimant child benefit either by revising or superseding the decision under sections 9 or 10 of the SAA.

Sections 21-23 of the SSA makes provision for suspension of payment of benefit and the termination of entitlement to benefit. They provide, insofar as is relevant and with my underlining added for emphasis, that:

“Suspension in prescribed circumstances

21:-(1) Regulations may provide for—

(a)

suspending payments of a relevant benefit, in whole or in part, in prescribed circumstances;

(b)

the subsequent making in prescribed circumstances of any or all of the payments so suspended.

(2)

Regulations made under subsection (1) above may, in particular, make provision for any case where—

(a)

it appears to the Secretary of State that an issue arises whether the conditions for entitlement to a relevant benefit are or were fulfilled;

(b)

it appears to the Secretary of State that an issue arises whether a decision as to an award of a relevant benefit should be revised (under section 9 above) or superseded (under section 10 above)….

Suspension for failure to furnish information etc

22:-(1) The powers conferred by this section are exercisable in relation to persons who fail to comply with information requirements.

(2)

Regulations may provide for—

(a)

suspending payments of a relevant benefit, in whole or in part;

(b)

the subsequent making in prescribed circumstances of any or all of the payments so suspended.

(3)

In this section and section 23 below “information requirement” means a requirement, made in pursuance of regulations under section 5(1A) of the [Social Security Administration Act 1992], to furnish information or evidence needed for a determination whether a decision on an award of benefit to which that section applies should be revised under section 9 or superseded under section 10 above.

Termination in cases of failure to furnish information

23:- Regulations may provide that, except in prescribed cases or circumstances, a person—

(a)

whose benefit has been suspended in accordance with regulations under section 21 above and who subsequently fails to comply with an information requirement; or

(b)

whose benefit has been suspended in accordance with regulations under section 22 above for failing to comply with such a requirement,

shall cease to be entitled to the benefit from a date not earlier than the date on which payments were suspended.”

Regulations 18 and 19 of the Child Benefit and Guardian’s Allowance (Decisions and Appeals) Regulations 2003 (“the CB (D&A) Regs) are made under sections 21-23 of the SSA. Regulations 18 and 19 (and regulation 20) fall within Part 4 of those regulations. Part 4 is titled “Suspension and Termination”.

Regulations 18 and 19 provide materially (again with my emphasis added by underlying) as follows:

“Suspension in prescribed cases

18.

—(1) The Board may suspend payment of child benefit or guardian’s allowance, in whole or in part, in the circumstances prescribed by paragraph (2) or (3).

(2)

The circumstances prescribed by this paragraph are circumstances where it appears to the Board that—

(a)

an issue arises as to whether the conditions for entitlement to the benefit or allowance are or were fulfilled;

(b)

an issue arises as to whether a decision relating to an award of the benefit or allowance should be—

(i)

revised under section 9 or Article 10; or

(ii)

superseded under section 10 or Article 11….

Provision of information or evidence

19.

—(1) This regulation applies where the Board require information or evidence for a determination whether a decision awarding child benefit or guardian’s allowance should be—

(a)

revised under section 9 or Article 10; or

(b)

superseded under section 10 or Article 11.

(2)

A person to whom this paragraph applies must—

(a)

supply the information or evidence within—

(i)

the period of one month beginning with the date on which the notification under paragraph (4) was sent to him; or

(ii)

such longer period as he satisfies the Board is necessary in order to enable him to comply with the requirement; or

(b)

satisfy the Board within the period of time specified in sub-paragraph (a)(i) that—

(i)

the information or evidence required of him does not exist; or

(ii)

it is not possible for him to obtain it.

(3)

A person to whom paragraph (2) applies is any of the following—

(a)

a person in respect of whom payment of the benefit or allowance has been suspended in the circumstances prescribed by regulation 18(2);

(b)

a person who has made an application for the decision to be revised or superseded;

(c)

a person who fails to comply with the provisions of regulation 23 of the Administration Regulations in so far as they relate to information, facts or evidence required by the Board.

(4)

The Board must notify a person to whom paragraph (2) applies of the requirements of that paragraph.

(5)

The Board may suspend the payment of benefit or allowance, in whole or in part, to a person falling within paragraph (3)(b) or (c) who fails to satisfy the requirements of paragraph (2).”

A request was made by HMRC of the claimant for information under regulation 19 of the CB (D&A) Regs by its letter to him of 19 July 2019. That letter reads, so far as is material, as follows (again the underlining is mine and has been added for emphasis):

“About your Child Benefit Award – reply needed

We’re writing to you to make sure the information held on our records is correct and to check your entitlement to Child Benefit.

If you don’t provide the information we’ve requested within one month from the date of this letter you may lose some or all of your Child Benefit entitlement. We will act on the information we hold to update your award, and you may be asked to repay money that we decide you should not have been paid.

We’ve stopped paying Child Benefit for your child. This is because we can’t confirm that you’re entitled to Child Benefit for them.”

It is only by either regulation 18(1) or regulation 19(5) that HMRC was empowered, under section 21-22 of the SSA, to suspend the payments of the claimant’s child benefit.

Regulation 20 of the CB (D&A) Regs then deals with termination. Section 23 of the SSA and regulation 20 are the only material provisions which are about termination. Regulation 20 provides as follows (again with my underlining added for emphasis) :

“Termination in cases of failure to furnish information or evidence

20.

—(1) Subject to paragraph (3), this regulation applies where—

(a)

a person whose benefit or allowance has been suspended under regulation 18 subsequently fails to comply with a requirement for information or evidence under regulation 19 and more than one month has elapsed since the requirement was made; or

(b)

a person’s benefit or allowance has been suspended under regulation 19(5) and more than one month has elapsed since the first payment was so suspended.

(2)

The Board must decide that the person ceases to be entitled to the benefit or allowance from the date on which payment was suspended except where entitlement to the benefit or allowance ceases on an earlier date.

(3)

This regulation does not apply where benefit or allowance has been suspended in part under regulation 18 or 19.”

Regulation 20 mirrors section 23 of the SSA. Neither that section nor regulation 20 is about stopping the payment of child benefit. The terms of regulation 20 are clear. What ‘termination’ means, consonant with section 23 of the SSA, is that the person has ceased to be entitled to the benefit.

The HMRC letter of 24 March 2020 to the claimant reads materially as follows:

“About your benefit payments

You are no longer entitled to Child Benefit for [your daughter].

We will stop your Child Benefit payments for [your daughter] from 29 July 2019.

This is because you have not sent us the information we asked for on 18 July 2019.”

Read with the relevant statutory provisions, the decision of HMRC communicated in its letter of 24 March 2020 was plainly, and could only have been, a termination decision under section 23 of the SSA and regulation 20 of the CB (D&A) Regs (Footnote: ¹). More importantly, however, there is nothing in the relevant legislative architecture which supports the FTT’s view that all HMRC had done, because of the claimant’s failure to provide it with the information it had asked of him on 18 July 2019, was to suspend the payment of his entitlement to child benefit from 29 July 2019 to October 2021. A distinction can sometimes usefully be drawn between receipt of a benefit to which a person is entitled and entitlement to that benefit. But that distinction is usually crafted in the governing statutory language. For example, in relation to child benefit, section 13A of the SSA provides that, in certain circumstances, a person who is entitled to child benefit may elect for all payments of the child benefit to which they are entitled not to be made to them. Likewise, as set out above, sections 21-23 of the SSA, and the relevant regulations made under them, distinguish between payment (or the suspension thereof) of the entitlement to a benefit and the termination of that entitlement. The FTT’s thesis failed to explore and thus appreciate this distinction. And the 24 March 2020 letter’s language of stopping the payments of child benefit was plainly, when read in context, about the end date of entitlement to child benefit.

The termination decision of 24 March 2020 under section 23 of the SSA and regulation 20 of the CB (D&A) Regs was a supersession decision under section 10 of the SSA (see R(H) 4/08), those supersession powers under section 10 of the SSA also having been transferred to HMRC in respect of child benefit. Under section 17(1) of the SSA, that termination decision was a final decision about the claimant’s entitlement to child benefit from 29 July 2019 to 24 October 2021, unless the 24 March 2020 decision was successfully appealed or it was subsequently revised or superseded. None of these exceptions to the finality of the termination decision apply. That final decision of HMRC about the was claimant’s entitlement to child benefit between 19 July 2019 and 24 October 2021 was binding on the FTT. It was therefore not open to the FTT or the Secretary of State, as suggested by the FTT at paragraph 15 of its decision, for the Secretary of State to have carried out her own evaluative exercise to see if she considered the claimant was entitled to child benefit. The function of deciding entitlement to child benefit rested with HMRC, not the Secretary of State

The only other way in which the appellant could have been entitled to child benefit for the period covering 29 July 2019 to 24 October 2021 is if he had made a claim for child benefit which covered that period. Contrary to the observations of the FTT when giving permission to appeal, and the arguments made on behalf of the claimant, making a claim for child benefit is a condition of entitlement to that benefit. That is the clear effect of section 13(1) of the SSAA, which provides insofar as is relevant as follows:

“Necessity of application for child benefit

13:-(1)….no person shall be entitled to child benefit unless he claims it in the manner, and within the time, prescribed in relation to child benefit by regulations under section 5 above.”

Moreover, the effect of section 8(2) of the SSA was that the claim for child benefit that the claimant had made previously, and which had led to the decision that awarded him child benefit before July 2019, ceased to exist as a claim once that claim had been decided. Section 8(1) and (2) of the SSA, as applicable to HMRC, provides:

“Decisions by [HMRC]

8:-(1)Subject to the provisions of this Chapter, it shall be for [HMRC]—

(a)to decide any claim for a relevant benefit;

(2)Where at any time a claim for a relevant benefit is decided by [HMRC]—

(a)

the claim shall not be regarded as subsisting after that time; and

(b)

accordingly, the claimant shall not (without making a further claim) be entitled to the benefit on the basis of circumstances not obtaining at that time.”

That earlier claim for child benefit could not therefore meet the requirements of section 13(1) of the SSA for the period from 29 July 2019 to 24 October 2021 because as a matter of law it no longer existed.

Nor could the claim for child benefit which the claimant subsequently made on 20 January assist to cover this period either. That claim met section 13(1) of the SSSA but, under regulation 6(1) of the Child Benefit and Guardian’s Allowance (Administration) Regulations 2003, that claim only could take effect from three months before it was made.

However, does the claimant’s lack of entitlement to child benefit for the material period from 29 July 2019 under the provisions of one Act of Parliament, the SSAA, mean that he was not entitled to child benefit for the purposes of another Act of Parliament, under section 39A(2)(a) of the SSCBA? This was a point raised in oral argument by Mr Howell as a possible argument that might be available to the claimant. It has not been tested in argument and previous decisions have not identified this as a difficulty: see, for example, SSWP v GH (BB) [2015] UKUT 591 (AAC). The argument would seem to be that although the claimant was not entitled to child benefit for the relevant period under the SSAA, this did not answer whether he was “entitled to child benefit in respect of a child” for the purposes of the WPA under section 39A(2)(a) SSCBA. Quite what “entitled” would otherwise mean or be based on under the SSCBA is not clear.

It seems obvious to me, however, that such an argument cannot work. The two relevant Acts of Parliament, the Social Security Administration Act 1992 and the Social Security Contributions and Benefits Act 1992 are plainly intended to be read together, as would have been the case under the Child Benefit Act 1975 (under section 6 of which entitlement to child benefit was dependent on a claim being made for that benefit). This is shown by section 177(2) of the SSCBA which provides that “[t]his Act is to be read, where appropriate, with the [Social Security] Administration Act [1992]”. The twin of this in the Social Security Administration Act 1992 is section 192(2) which states that “[t]his Act is to be read, where appropriate, with the [Social Security] Contributions and Benefits Act [1992]”. Both of these statutory provisions give effect to that which was held in Philips v Parnaby [1934] 2 KB 299 at 142-143, relying on Canada Southern Railway Company v International Bridge Company (1883) 8 App. Cas. 723, that two related statutes should be read as if a single Act unless to do so would give rise to manifest discrepancy.

In my judgement, it is plainly appropriate and would give rise to no manifest discrepancy to read “entitled to child benefit” in section 39A(2)(a) of the SSCBA as meaning the same as the exact same phrase found in section 13(1) of the SSAA. Other pointers to it being intended that “entitled to child benefit” should mean the same across both statutes can be found in sections 122(4) and (5), 141 and 146(2) of the SSCBA. Were it otherwise, entitlement to child benefit could arise under Part IX of the SSCBA without a claim being made for that benefit, and the provision in section 13(1) of the SSAA requiring a claim to be made to be entitled to child benefit would lead nowhere and be otiose.

I therefore agree with the Secretary of State that insofar as the FTT in its decision proceeded on the basis either that a claim was not a condition of entitlement to child benefit or that such a claim was in place between 29 July 2019 and 24 October 2012, it erred in law in so concluding.