[2025] UKUT 186 (AAC)

This appeal concerns two decisions made by the Secretary of State on 12 January 2022 (as revised on 7 February 2022) about the claimant’s entitlement to widowed parent’s allowance (“WPA”). The claimant was the appellant before the FTT and is the respondent on this appeal by the Secretary of State to the Upper Tribunal. In short, it was decided by the Secretary of State that the claimant had been overpaid WPA, and that overpayment was recoverable from him because he had failed to disclose that his entitlement to child benefit had ceased. As will be seen, entitlement to child benefit is one the conditions of entitlement to WPA.

The First-tier Tribunal on 12 April 2024 (“the FTT”) allowed both appeals of the claimant on the basis that he had remained entitled to child benefit throughout the relevant period, and so had not been overpaid any WPA. As such, the question of whether the overpayment was in law recoverable from the claimant fell away as there was no overpayment.

The sole issue that arises on this appeal by the Secretary of State from the FTT’s decisions is whether the claimant had remained entitled to child benefit in circumstances where the Commissioners for His Majesty’s Revenue and Customs (“HMRC”) had terminated the claimant’s entitlement to child benefit for the relevant period and no claim for child benefit had subsequently been made which covered that period.

This decision is therefore only in substance about whether the claimant had been overpaid WPA and the lawfulness of the FTT’s approach to that issue. It is not about whether the FTT correctly approached the issue of failure to disclose, which arose on the second decision under appeal to it, as its conclusion that the claimant had not been overpaid meant this second issue did not arise.

In essence, the FTT concluded that the claimant remained entitled to child benefit for the relevant period because, in the FTT’s view, all that had occurred was that HMRC had terminated the payment of the child benefit but entitlement to that benefit continued. The FTT considered that entitlement to child benefit had continued as the claimant continued to meet all the ‘underlying conditions’ of entitlement to that benefit for the relevant period, even though he had not made a further claim for child benefit which covered that period.

For the reasons I explain below, the FTT’s reasoning on this issue was unsound and was based on misunderstandings about the legal effect of HMRC’s termination decision and whether a claim for a benefit is a condition of entitlement to benefit. Since the decision of the House of Lords in Insurance Officer v McCaffrey [1984] 1 WLR 1353, a claim covering the relevant period is a core condition of entitlement to child benefit.

As such the FTT erred in law in its approach to whether the claimant had been overpaid WPA for the relevant period. I decide moreover that on the law and on the evidence that the claimant was overpaid WPA for the relevant period. This then leaves the question of whether the overpayment is recoverable from the claimant under section 71 of the Social Security Administration Act 1992. The appeal against that ‘failure to disclose’ decision will, in consequence, need to be remitted to a new FTT to be redecided.