[2025] UKUT 186 (AAC)

Appeal Nos. UA-2024-001041-BB & UA-2024-001043-BB

Between:

Secretary of State for Work and Pensions

Appellant

- v –

AE

Respondent

Before: Upper Tribunal Judge Wright

Representation:

Appellant: Richard Howell of counsel

Respondent: The respondent did not appear and was not represented

On appeal from:

Tribunal: First-tier Tribunal (Social Entitlement Chamber)

Tribunal Case Nos: SC242/23/06181 and SC242/23/05618

Tribunal Venue: Fox Court, London

Decision Date: 12 April 2024

SUMMARY OF DECISION

This is a decision about the legal effect of a decision by HMRC to terminate the claimant’s award of child benefit and how that then affected the claimant’s entitlement to widowed parent’s allowance. It is a condition of entitlement to widowed parent’s allowance that the claimant is entitled to child benefit. The Secretary of State for Work and Pensions is responsible for widowed parent’s allowance. Her office in the DWP only found out two years later that the claimant’s award of child benefit had been terminated in July 2019. The Secretary of State decided (i) that the claimant had been overpaid the widowed parent’s allowance for over two years from July 2019 and (ii) that overpayment was recoverable from the claimant because he had failed to disclose that his award of child benefit had ended in July 2019. The FTT allowed the appeals on the basis that the claimant had remained entitled to child benefit from July 2019 and so no overpayment arose. The FTT did so because it considered that although the claimant was not in receipt of child benefit from July 2019, he continued to meet all the conditions of entitlement to child benefit from that date.

The Upper Tribunal allows the Secretary of State’s appeal, sets aside the FTT’s decision, and restores the Secretary of State’s decision about whether the claimant had been overpaid widowed parent’s allowance. The effect of HMRC’s termination decision was to supersede and bring to an end, with effect from July 2019, the decision that had awarded the claimant child benefit. As the decision which had found the claimant was entitled to child benefit, and so had awarded that benefit, had been superseded by HMRC’s July 2019 termination decision, and the claimant had not appealed that supersession decision, the sole basis on which the claimant could regain his entitlement to child benefit from July 2019 was if he made a fresh claim for child benefit which covered the period from July 2019, a claim being one of the conditions of entitlement to child benefit. However, the claimant did not make a further claim for child benefit until 20 January 2022. That claim was successful but the award on that claim could only take effect from 25 October 2021. The claimant therefore had no entitlement to child benefit between 29 July 2019 and 24 October 2021, and the FTT had erred in law in concluding otherwise. Its distinction between ‘receipt’ and ‘entitlement’ was irrelevant and wrong on the facts of the case, and it had failed to understand both the legal effect of the decision terminating the award of child benefit and the consequence the lack of a claim for the relevant period had in respect of entitlement to child benefit for that period. Whether the overpayment was in law recoverable from the claimant for failure to disclose is remitted to a fresh FTT to decide.

KEYWORD NAMES (Keyword Numbers) bereavement and death benefits (3) bereaved parents allowance (3.2), and benefits for children (2); child benefit (2.1), and revisions, supersessions and reviews (30); supersession: general (30.9)

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follows.

DECISION