Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Upper Tribunal Judge: E A Jupp

Decision:  The decision of the First-tier tribunal given at Sutton on 24 May 2013 under Registration No. SC154/12/04265 was erroneous in law.  Accordingly, the claimant’s appeal succeeds.  Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 I set aside the tribunal’s decision.  

Although the claimant has asked for an oral hearing of her appeal, there has already been an oral hearing of her application for permission to appeal, where matters were very fully ventilated.  Having considered rules 2 and 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, nothing is to be gained by holding an oral hearing.

Under section 12(2)(b)(ii) I substitute the decision which the tribunal should have made:

“The claimant is not entitled to an award of child tax credit for the period which commences on 31 August 2011.”

REASONS FOR DECISION

1. The claimant had an award of child tax credit (CTC) for two of her children, for the tax year 2011-2012.  On 31 August 2011, her former partner (HR), the father of these children, made a rival claim.  Following investigations by Her Majesty’s Revenue and Customs (HMRC), the parents did not agree between them which of them should receive CTC for the children.  The Tax Credits Office was therefore required to decide between the rival claims.  After making further enquiries and on the basis of Court Orders, on 11 January 2012 HMRC decided that CTC should be awarded to HR, instead of to the claimant, with effect for the period commencing 31 May 2011, that is, backdated three months from the date of claim. 

2. The claimant appealed to the tribunal, which refused her appeal.  She then applied for permission to appeal to the Upper Tribunal, largely on the grounds that the tribunal’s decision was unfair.  Upper Tribunal Judge Wikeley held an oral hearing of the application, which the claimant attended with her father.  She explained that as soon as the residence and contact arrangements had been finalised by the court in December 2011 she had informed HMRC of the change.  In giving permission to appeal, UT Judge Wikeley gave a very full and clear explanation of why the claimant could not succeed in her appeal on the grounds she had given. 

3. However, Upper Tribunal Judge Wikeley had noticed that the tribunal’s decision notice confirmed the decision of 12 January 2012 that the claimant was not entitled to CTC after 30 May 2011.  On the other hand, the statement of reasons recorded that the claimant's entitlement was to cease after 30 August 2011.  Although HMRC’s written submission to the tribunal was that HR’s award began from the date of his claim on 31 August 2011, rather than as stated in the decision of 12 January 2012 and in the tribunal’s decision notice, the tribunal had not dealt with this.  This failure, together with the contradiction between the dates in the decision notice and the statement of reasons would amount to errors of law, especially as there could be practical implications as to which date could be used in any recovery of overpaid CTC.

4. The Secretary of State supports the appeal on these grounds.  As he points out, the purported backdating of the award to HR to 31 May 2011 was to a time when CTC had already been paid to the claimant on the basis that she was the only person claiming for the children and was responsible for them.  He adds:

“As there is no dispute that the claimant satisfied the basic conditions for the whole period, the effective date of the decision against the claimant ought to have been the first date on which the question of main responsibility arose and was determined against her: 31 August 2011”

He concludes with a submission that the Upper Tribunal should substitute its own decision in the terms I have set out above, which it is appropriate to do.

5. As such a full consideration of the claimant's position was given at the oral hearing of the application, it is not necessary for me to deal with it any further here.  I appreciate that this decision will be disappointing for her, but the outcome is that her entitlement runs to 30 August 2011, a further three months from the date of 30 May 2011 given in the original decision.

6. I am satisfied that the tribunal erred in law in the inadequacy of its findings of fact and reasons for its decision. It is appropriate for its decision to be set aside and I have given my substituted decision above.

(Signed on the original) E A Jupp

Judge of the Upper Tribunal

26 November 2014