[2025] UKUT 186 (AAC)

The FTT heard the appeals on 12 April 2024. The claimant did not attend the hearings of his appeals. The FTT allowed both appeals and set aside the Secretary of State’s decisions.

The FTT’s decisions were:

“3.

The DWP asserts that [the claimant] failed to disclose a material fact, namely that his entitlement to Child Benefit (CB) had ceased and this is why he did not meet the conditions of entitlement to Widowed Parents Allowance (WPA) from 29.7.19. I consider that the DWP is wrong and that [the claimant]’s entitlement to CB did not cease and therefore [he] had not failed to disclose a material fact.

4.

Subject to any other conditions of entitlement being met, [the claimant] continued to be entitled to WPA when the DWP made its decision…

6.

The decision made by the DWP on 12.1.22 (as revised on 7.2.22) that [the claimant] was overpaid WPA in the sum of £13,546.54 for the period 29.7.19 – 24.10.21 is set aside.

7.

[The claimant] was not overpaid WPA.”

The FTT gave its reasons for its decisions in (combined) Decision Notice of 12 April 2024. The essential reasons for the FTT’s decisions were as follows:

“10.

the DWP says that [the claimant] ceased to receive CB and therefore all the conditions of entitlement to WPA were not fulfilled. However, section 39A(2)(a) Social Security Contributions and Benefits Act 1992 (‘the Act’) refers to the person being “entitled to [CB]”. It does not refer the person being ‘in receipt of CB’ which I consider to be a different concept….

11……previously (in relation to a different welfare benefit) it had been held by a Commissioner that ‘in receipt of’ meant both entitlement to a benefit and actually being paid that benefit. Parliament then changed the legislative provisions to make expressly clear that ‘in receipt of’ meant being paid the benefit only. That must mean that a person can be entitled to a benefit even if the benefit is not being paid to the person. If that was not the case then Parliament would not needed to have changed the law to make it clear that that there was a distinction between these concepts (in relation to that other benefit), namely that being entitled to the benefit did not mean that the person was in receipt of it; being in receipt of it meant it actually being paid to the person. I consider that the distinction in these legal concepts has direct applicability to the present appeals before me……..

12.

It is clear that [the claimant] was not being paid CB from 29.7.19. There is no dispute about that. Thus, it is clear that he] was not ‘in receipt’ of CB. However, was [he] ‘entitled to’ CB? I find that he was. Although the letter from HMRC to [the claimant], dated 24.3.20… refers to [the claimant] not being entitled to CB, I find on the balance of probabilities that this is the standard wording used my HMRC to also capture the situation where an award is terminated on account of a claimant not furnishing HMRC with information it has asked for.

13.

I find that all the conditions for entitlement to CB continued to be met. [The claimant] says that nothing had changed about his or the subject child’s circumstances during the period that CB was not in payment. The reason for the break in payment was because HMRC says that it asked [the claimant] for some information and [he] did not provide it. It is only for that reason that HMRC made a decision to terminate the award of CB. This itself is explained by the DWP where it says: “[the claimant] for some information and [he] did not provide it. It is only reply from [the claimant] was received, [CB] was terminated, and a letter was issued to [AE] to advise him of this on 24 March 2020.”

14.

Later, when [the claimant] got in touch with HMRC, he made a new claim for CB and the award of CB was made. This can also be seen from the Directions Notice of DTJ W Rolt of 19.10.23 on the related but not linked CB appeal (SC242/22/01923). In that Notice, DTJ Rolt urges HMRC to use its discretion and pay the CB to [the claimant] for the period during which there was a break in payment. He so urges HMRC because [the claimant] and the subject child met the conditions of entitlement. I suspect that DTJ Rolt made this request because although the substance of the appeal appears clear (entitlement was met), the appeal itself is said to be made late and therefore the first issue that has to be dealt with is the preliminary issue of whether that appeal is valid and can be admitted.

15.

As a final note, the DWP is not able to point to anything about [the claimant]’s actual circumstances on the ground or that of the subject child to show that [the claimant] did not meet the conditions of entitlement to CB. The DWP could have carried out its own evaluative exercise to see if it considered that [the claimant] met the conditions of entitlement. It has not done so despite my suggestion that it may need to do this task.. Instead, it relied only on the letter from HMRC to [the claimant] stating that [he] was not entitled and yet (as referred to above), the DWP has pointed out that the termination of CB by HMRC was due [the claimant]’s failure to respond to the requests for information and not anything else.

16.

In conclusion, I find that the conditions of entitlement to WPA continued to be met because [the claimant] continued to be entitled to CB although for a period, he was not being paid it. Thus, he was not in receipt of CB but he was entitled to it. The relevant legal provisions in the Act refer to the person being entitled to CB rather than being in receipt of it and [the claimant] remained entitled to CB. This means I must allow the….entitlement appeal which naturally means the overpayment appeal must also succeed.”

The FTT gave the Secretary of State permission to appeal to the Upper Tribunal. It agreed that it would be appropriate for the Upper Tribunal to consider the matter.