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Judicial Summary

This is a decision about the legal effect of a decision by His Majesty’s Revenue and Customs (HMRC) to terminate the claimant’s award of child benefit (CB) and how that then affected the claimant’s entitlement to widowed parent’s allowance (WPA). It is a condition of entitlement to WPA that the claimant is entitled to CB. The Secretary of State for Work and Pensions is responsible for WPA. Her office in the Department for Work and Pensions only found out two years later that the claimant’s award of CB had been terminated in July 2019. The Secretary of State decided (i) that the claimant had been overpaid the WPA 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 CB had ended in July 2019. The First-tier Tribunal (FTT) allowed the appeals on the basis that the claimant had remained entitled to CB from July 2019 and so no overpayment arose. The FTT did so because it considered that although the claimant was not in receipt of CB from July 2019, he continued to meet all the conditions of entitlement to CB 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 WPA. 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 CB. As the decision which had found the claimant was entitled to CB, and so had awarded that benefit, had been superseded by HMRC’s July 2019 termination decision, and the claimant had not appealed that supersession decision, the sole basis on which the claimant could regain his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 CB from July 2019 was if he made a fresh claim for CB which covered the period from July 2019, a claim being one of the conditions of entitlement to CB. However, the claimant did not make a further claim for CB 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 CB 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 CB and the consequence the lack of a claim for the relevant period had in respect of entitlement to CB 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.