Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CF/797/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 2 July 2013 is erroneous in law. I set it aside. I remit the appeal for determination at an oral hearing before a differently constituted tribunal.

 

REASONS FOR DECISION

How I refer to the parties

1.     For ease of comprehension, I refer to the appellant as “the claimant” and to the respondent as “HMRC”.

Factual background

2.     The claimant is a United Kingdom national, who was born on 20 June 1961. She was in receipt of child benefit in respect of her three children.

3.     It seems probable that the claimant would have received a copy of payment advice notices (CH1715 HMRC 01/06) about changes which she was required to report to the Child Benefit Office. These include leaving the United Kingdom temporarily for more than eight weeks, leaving the United Kingdom permanently, or for more than 52 weeks, the payment by the claimant or her partner of social security contributions to a country outside the United Kingdom, and the start of work outside the United Kingdom by the claimant or her partner. There are corresponding reporting requirements relating to the departure from the United Kingdom of the children in respect of whom benefit is paid. The payment advice notice is routinely provided when child benefit increases. There is no specific evidence of delivery of this information to the claimant, but HMRC argues that it is reasonable to accept that the payment advice notices were issued.

4.     It came to the attention of HMRC that the claimant had an address in Spain as a result of a “special scan … on the National Insurance Contributions Computer system against the Child Benefit records with the intention of identifying cases where Child Benefit customers were abroad.”

5.     From responses by the claimant, dated as received by HMRC on 28 March 2012, to a questionnaire in Form CH934, the claimant said that she and her three children moved to Spain on 16 October 2006. In response to a question about working in the United Kingdom before she left, she stated:

Self employed. I am a landlord renting out my properties. I still rent them out. I pay tax still and N.I. contrib.

6.     The claimant said that when she went abroad, she intended to return to the United Kingdom. She also said that she still intended to return. However, in relation to her partner, she said that he did not intend to return to the United Kingdom when he went abroad, and as at the date of the questionnaire responses still did not intend to return to the United Kingdom.

7.     The claimant reported that she had a partner, who was a Dutch national. He too moved to Spain on 16 October 2006 and began work as a self-employed private GP in Spain on 17 October 2006. She reported that he was liable to pay social security contributions in Spain.

8.     The claimant said that neither she nor her partner had claimed a child benefit in Spain, and that she had not worked in Spain since leaving the United Kingdom.

9.     The claimant was subsequently asked by letter dated 11 December 2012 for more information about her self employment:

You have stated that you have lived in Spain since 16 October 2006 but are still self employed in the UK. How do you conduct your business, for example how often do you return to the UK for business meetings and to meet with clients, do you use technology such as the internet, fax machines, e-mails and so on to conduct your business?

10.  The claimant was also asked whether she held a certificate in Form E101, E102 or CA4036 (even though she had said in her response to Form CH934 that she was not in receipt of these certificates).

11.  The claimant responded on 2 February 2013 in the following terms:

… I do not hold any certificates above, didn’t know anything about them. I obtain rent from 2 houses that I own in England. I only live in Spain. I pay tax in England and NI. No one has ever told me any different. I do not work here in Spain. My partner is self employed in Spain and he pays his taxes in this country. He is Dutch. … .

12.  HMRC had determined, by decision dated 15 December 2010, that the claimant had no entitlement to child benefit and had been overpaid the benefit. This decision was subsequently revised on 27 June 2011 following the claimant’s appeal. The revised decision was in turn revised on 29 May 2012. This is the decision under appeal. It supersedes the award of child benefit for the three children on the grounds that the claimant and her children had left the United Kingdom on 16 October 2006 to the effect that there was no entitlement from that date. Furthermore there had been an overpayment of child benefit in the sum of £9,226.20 for the period from 23 October 2006 to 17 October 2010 which was recoverable from the claimant because she had failed to disclose the material fact that the appellant and her children had left the United Kingdom on 16 October 2006.

13.  The claimant filed a detailed written submission for the tribunal.

14.  The appeal came before the tribunal on 2 July 2013 and was heard in the absence of the parties. The outcome was that the decision of HMRC was confirmed. A statement of reasons was subsequently provided on 30 July 2013.

15.  The appeal now comes before me with the permission of a judge of the First-tier Tribunal.

The grounds of appeal

16.  The essence of the claimant’s grounds of appeal is set out in the following paragraphs.

17.  The claimant has throughout argued that she remains entitled to United Kingdom child benefit on the proper application of European Community law provisions. The grounds of appeal re-state this argument.

18.  The claimant argues that the tribunal has failed to address her case adequately with the consequence that its findings and reasons fail the test of adequacy.

19.  The claimant says that the tribunal has misinterpreted the decision of the Court of Appeal in HMRC v Ruas [2010] EWCA Civ 291 (“the Ruas case”).

20.  The claimant also argues that:

(a)  she had reserved the right to raise arguments based on discrimination but the decision was made without her being given the opportunity to make these arguments; and

(b)  the tribunal failed to take account of Department for Work and Pensions guidance.

Did the tribunal err in law?

21.  I do not need to make heavy weather of this issue, despite the representative for HMRC arguing that I should dismiss this appeal.

22.  The tribunal has plainly not made sufficient findings of fact or provided adequate reasoning for concluding that the claimant did not continue in self-employment following her move to Spain. The HMRC representative says that the claimant has provided no evidence of this. That is not so. What she said in her Form CH934 questionnaire responses, and later repeated, is evidence, though it may require elaboration. HMRC asked for that elaboration, but it was not forthcoming. The tribunal should have explained how it came to the conclusion on the evidence before it that the claimant was not self-employed.

23.  Nor do I consider that the tribunal’s consideration of the relevant parts of Council Regulation 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, [1997] OJ L28/4, as amended (“Regulation 1408/71”), to be adequate. More needed to be said.

24.  For these reasons, I set the tribunal’s decision aside. As will become clear, I do not feel able to substitute my own decision for that of the tribunal, and so I remit the appeal for determination at an oral hearing before a differently constituted tribunal.

25.  The remainder of this decision is my assessment of the proper application of both national law and European Community law to the circumstances of this case on the basis of the evidence before the tribunal, and the provision of guidance for the disposal of this appeal. It identifies the issues and provides some guidance on the application of the relevant provisions to the circumstances of this case.

The issues raised by this appeal

26.  This appeal raises the following issues:

(a)  Have the claimant and her children been ordinarily resident in Spain since October 2006?

(b)  Was the claimant self-employed in the United Kingdom, and did she remain self-employed when she moved to Spain?

(c) Does Regulation 1408/71 alone apply to this claim, or must consideration also be given to Regulation 883/2004 on the coordination of social security systems, [2004] OJ L200/1, as amended, (“Regulation 883/2004”)?

(d)  If the claimant remained self-employed in the United Kingdom following her move to Spain, what is the effect of Article 73 of Regulation 1408/71?

(e)  What, if any, consequences are there flowing from the fact of work in Spain by the claimant’s partner?

(f) What is the position under Regulation 1408/71 (and possibly Regulation 883/2004) if the claimant was not self-employed in the United Kingdom following her move to Spain?

(g)  Has there been a recoverable overpayment of child benefit?

Have the claimant and her children been ordinarily resident in Spain since October 2006?

27.  The rules in national law on entitlement to child benefit are set out in the submission to me by the HMRC representative. They do not appear to be in dispute. Section 146 of the Social Security Contributions and Benefits Act 1992 provides both that no person shall be entitled to child benefit in any week unless she is in Great Britain in a week, and that no child benefit shall be payable in respect of a child or qualifying young person for a week unless he or she is in Great Britain in that week.

28.  There are provisions in regulation 24 of the Child Benefit (General) Regulations 2006 for certain absences from Great Britain to be disregarded.

29.  Plainly the claimant and her children were ordinarily resident in Spain following the move to Spain, despite the stated intention by the claimant to return at some point to the United Kingdom. Throughout the period in respect of which the overpayment is claimed to be recoverable, the claimant and her children were living in Spain: R v Barnet LBC ex parte Shah [1983] 2 AC 209 applied. None of the savings provisions in regulation 24 of the Child Benefit (General) Regulations 2006 assists the claimant.

30.  It follows that the claimant’s entitlement (if any) must flow from other provisions of law: in this case provisions of European Community law.

Was the claimant self-employed in the United Kingdom, and did she remain self-employed when she moved to Spain?

31.  The claimant has described operating a business as a landlord letting two properties she owns in England. There appears to be no dispute about her being self-employed in England prior to the move to Spain. The claimant says that she continued this business following her move to Spain. She says that she paid tax on the profits of the business and was liable for national insurance contributions as a self-employed person for the years following her move to Spain.

32.  I cannot see any reason in principle why such a business conducted while in England could not continue to be conducted in the United Kingdom following the move to Spain. The details of the operation of the business following the move to Spain was the substance of pertinent questions asked by HMRC. In response the claimant simply restated the reference to paying tax and national insurance contributions in the United Kingdom.

33.  The tribunal found as a fact that the claimant paid no national insurance contributions after moving to Spain. The only evidence for such a finding would seem to be the statement in the submission to the tribunal:

[The claimant] left the United Kingdom on 16.10.2006 and she has not been liable and paying UK Class 1 or Class 2 Compulsory National Insurance contributions since then.

34.  That is, of course, an assertion. It does not state that a check has been made with the National Insurance Contributions Centre for the tax years in issue which shows that. It conflicts with the claimant’s statement that she continued to pay tax and national insurance contributions after leaving the United Kingdom.

35.  In the light of this conflict of evidence, and the claimant’s failure to provide details of how she conducted her business after moving to Spain, I consider that further findings of fact are required on this issue in order to determine this appeal. I make directions below on the evidence to be put before the new tribunal by both parties.

Does Regulation 1408/71 alone apply to this claim, or must consideration also be given to Regulation 883/2004 on the coordination of social security systems, [2004] OJ L200/1, as amended, (“Regulation 883/2004”)?

36.  The period under consideration in this appeal is from 23 October 2006 to 17 October 2010. Regulation 1408/71 was in force until 1 May 2010, when Regulation 883/2004 came into force as the successor regulation on the coordination of social security systems. The date of the decision under appeal is 29 May 2012, which postdates the entry into force of Regulation 883/2004.

37.  I am satisfied that it is Regulation 1408/71 which applies in this appeal. Almost all of the period in issue relates to the period when Regulation 1408/71 was in force. Furthermore, Article 87(1) of Regulation 883/2004 provides that no rights can be acquired under its provisions for any period before the date in which it entered into force.

38.  This view is also supported by recital (2) of Decision H1 of 12 June 2009 of the Administrative Commission for the Coordination of Social Security Systems, [2010] OJ C103/13, which reads:

… in principle claims submitted before the date of entry into force of [Regulation 883/2004] shall continue to be governed by the law which was applicable to them at the time they were submitted and the provisions of [Regulation 883/2004] shall apply only to claims opened after [its] entry into force.

39.  A brief review of certain provisions in Regulation 883/2004 confirms my view that Regulation 1408/71 alone governs the claimant’s circumstances. The new tribunal need not consider Regulation 883/2004 in determining this appeal.

If the claimant remained self-employed in the United Kingdom following her move to Spain, what is the effect of Article 73 of Regulation 1408/71?

40.  If the new tribunal decides that the claimant remained self-employed in the United Kingdom following her move to Spain, then the United Kingdom would remain the competent state under Article 13(2)(b) of Regulation 1408/71, and Article 73 comes into play. This provides:

An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.

41.  The HMRC representative accepts that child benefit is a family benefit or family allowance for the purposes of Regulation 1408/71. There is plainly no doubt that the three children in respect of whom child benefit was payable in Great Britain are, in relation to United Kingdom legislation, members of the family of the claimant under Article 73, having regard to the definition of “members of the family” in Article 1(f) of Regulation 1408/71.

42.  Article 73 is, however, stated to be subject to the provisions of Annex VI. I could not see any entries in Annex VI relating to the United Kingdom which affected the application of Article 73.[1] Nor do any of the entries relating to Spain apply to family benefits.

What, if any, consequences are there flowing from the fact of work in Spain by the claimant’s partner?

43.  The claimant has a partner. It was not clear from evidence before the First-tier Tribunal whether the claimant and her partner were married. From submissions made to me, it is clear that the claimant and her partner were not married. Nor is it clear whether the partner is the father of the three children in respect of whom child benefit was payable in Great Britain. In submissions to me, the claimant refers to having previously been widowed. This may be significant in relation to the application of provisions of Regulation 1408/71 having regard to the definition of member of the family in Article 1(f) of Regulation 1408/71.

44.  The claimant’s partner is reported to have been in self-employment immediately on his arrival in Spain. It is also reported that he was governed by the Spanish social security system and paid social security contributions in Spain. This potentially brings into play Article 76 which contains rules on overlapping entitlement. Article 76 reads:

1. Where, during the same period, for the same family member and by reason of carrying on an occupation, family benefits are provided for by the legislation of the Member State in whose territory the members of the family are residing, entitlement to the family benefits due in accordance with the legislation of another Member State, if appropriate under Article 73 or 74, shall be suspended up to the amount provided for in the legislation of the first Member State.

2. If an application for benefits is not made in the Member State in whose territory the members of the family are residing, the competent institutions of the other Member State may apply the provisions of paragraph 1 as if benefits were granted in the first Member State.

45.  In order for Article 76 to be relevant, it is necessary to determine whether the three children in respect of whom child benefit was paid while they were in Great Britain are members of the family of the claimant’s partner for the purposes of Regulation 1408/71 having regard to the definition of members of the family in Article 1(f). If the claimant’s partner is not the father of the children of the claimant, then it may be that, in Spain, the children are not regarded as members of the family of the claimant’s partner, and so the claimant’s partner would not be entitled to family benefits or family allowance in respect of those children. It might, of course, be that Spain does regard children in these circumstance as members of the family of the claimant’s partner. Without further enquiries, we simply do not know.

46.  Decision No 147 of 10 October 1990 of the Administrative Commission of the European Communities on Social Security for Migrant Workers concerning the application of Article 76 of Regulation (EEC) No 1408/71, [1990] OJ L235/21, (“Decision No 147”) provides for a procedure under which the competent institution can determine whether the suspension provisions of Article 76 apply. It involves communications between the social security institutions of the two countries concerned using Form E411. I am not told whether that procedure has been used by HMRC, and I think it likely that it has not, since HMRC appears to have concluded that the claimant was not self-employed in Spain.

47.  What is clear from this analysis is that we need to know the ages and paternity of the three children in respect of whom child benefit was in payment in Great Britain. None of that information is available from the file I have. We also need to know whether the claimant’s partner was entitled to claim family benefits or family allowances for the children in Spain. That turns on whether the children were regarded under Spanish legislation as members of the family of the claimant’s partner.

What is the position under Regulation 1408/71 if the claimant was not self-employed in the United Kingdom following her move to Spain? 

48.  If it is established that the claimant was not self-employed in the United Kingdom following her move to Spain, then a question arises as to whether the claimant was self-employed in Spain. If that is the case, then Spain would become the competent State under Article 13(2)(b). It is perfectly possible that the circumstances might point to the business being operated in Spain even though the properties which were being let were in the United Kingdom.

49.  Where the business was carried on (if it was carried on) is a question of fact to be determined in the light of all the circumstances. That is why HMRC asked the claimant about how she conducted her business after the move to Spain. Plainly the management of properties in England is significant, as, I would have thought, is how they were let. For example, if they were let to residents of Spain for holidays in England, that would suggest a closer link with Spain. Conversely, if they were let in England to those resident in England, that would point to a closer link with England.

50.  It is also relevant (though not, I think, conclusively determinative) how both the tax and national insurance authorities in the United Kingdom dealt with tax returns and national insurance liability. If the claimant filed annual self assessment tax returns in respect of the business in the United Kingdom from an address in Spain, that might support her case that the business was located in England rather than Spain. This would be particularly so if she had a tax liability and a liability for Class 2 and/or Class 4 national insurance contributions as a result of the annual profits of the business.

51.  It is only if the claimant was self-employed in neither the United Kingdom nor Spain that Spain would become the competent State on the application of Regulation 13(2)(f), which provides:

2. Subject to Articles 14 to 17:

…

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.

52.  So, the questions are: (a) did the claimant continue to be self-employed in the United Kingdom following her move to Spain; and (b) if not, was the claimant self-employed in Spain following her move to Spain? Article 13(2)(f) would only apply if the claimant was not self-employed following her move to Spain in either the United Kingdom or Spain.

53.  The claimant has said that provisions in Annex VI would assist her if Article 13(2)(f) applied to her. I do not think that is the case.

54.  Point 19 of Annex VI does not assist. Point 19(a) states the primary rule under which United Kingdom legislation ceases to apply on the day on which residence is transferred to another Member State. Point 19(b) refers to the day of cessation of self-employment. Point 19(c) refers to the last day of any period of receipt of United Kingdom sickness or maternity benefits, or unemployment benefit. There is nothing in the file I have to suggest that any such benefits were in payment.

55.  Point 20 requires a little more analysis. It provides:

20.  The fact that a person has become subject to the legislation of another Member State in accordance with Article 13(2)(f) of the Regulation, Article 10b of the Implementing Regulation and point 19 above, shall not prevent:

(a)   the application to him by the United Kingdom as the competent State of the provisions relating to employed and self-employed persons of Title III, Chapter 1 and 2, Section 1 or Article 40(2) of the Regulation if he remains an employed or self-employed person for those purposes and was last so insured under the legislation of the United Kingdom;

(b)   his treatment as an employed or self-employed person for the purposes of Chapter 7 and 8 of Title III of the Regulation or Article 10 or 10a of the Implementing Regulation, provided United Kingdom benefit under Chapter 1 of Title III is payable to him in accordance with paragraph (a).

56.  Point 20(b) does encompass family benefits, which are provided for in Chapter 7 of Title III of Regulation 1408/71. However, Point 20(b) only assists a person to whom a United Kingdom benefit under Chapter 1 of Title III is payable in accordance with Point 20(a). Benefits under Chapter 1 of Title III are sickness and maternity benefits. There is nothing in the file I have to suggest that any such benefits were in payment.

57.  I did consider whether this decision should be delayed pending the outcome of the Secretary of State’s appeal to the Supreme Court against the decision of the Court of Appeal in Secretary of State for Work and Pensions v Tolley (deceased), [2013] EWCA Civ 1471. I refer to this case as “the Tolley case”. However, I have concluded that this is not necessary at this stage. The Tolley case is concerned with the export of the care component of a disability living allowance, which constitutes a sickness benefit under the scheme in Regulation 1408/71 (see analysis of the Upper Tribunal in the Tolley case at [2012] UKUT 282 (AAC). The circumstances of this case are very different, and do not appear to involve any necessary reconsideration of the decision in the Ruas case, which is an issue which arises in the Tolley case.

58.  If any issues relating to the Secretary of State’s appeal in the Tolley case do turn out to be significant in the determination of this appeal when it is reheard, then the First-tier Tribunal may choose to stay its decision pending the judgment of the Supreme Court.

Has there been a recoverable overpayment of child benefit?

59.  Responding to the issues analysed above will enable the new tribunal to determine whether there has been an overpayment of child benefit. Whether that overpayment is recoverable will depend on whether the claimant has failed to disclose matters she was directed to disclose to the Child Benefit Office.

60.  HMRC’s evidence is that the claimant had been given notice of a number of matters which required notification following the claimant’s move to Spain.

61.  The claimant has said little about this aspect of the appeal, understandably focusing on her claimed entitlement to child benefit following her move to Spain.

62.  The claimant says at one point that she told HMRC about her change of address. Although the Child Benefit Office is part of HMRC, it is not enough to tell one part of HMRC and rely on them to communicate the information to other parts of HMRC: see Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, reported as R(IS) 7/05.

63.  The tribunal will need to make findings of fact about what was sent to the claimant and what instructions she received about matters which were to be reported to the Child Benefit Office. The standard payment advice notices contain a clear direction to report certain changes to the Child Benefit Office including departure from the United Kingdom, either temporarily or permanently, of the claimant or the children in respect of whom child benefit is paid.

64.  Regulation 32(1A) of The Social Security (Claims and Payments) Regulations 1987, as amended, contains an unqualified duty to disclose information which a claimant is directed to report. No question arises in such circumstances of whether it was reasonable to expect disclosure to be made: B v Secretary of State for Work and Pensions [2005] EWCA Civ 929.

Directions and guidance for the new tribunal

65.  There is plainly further evidence to be adduced by both HMRC and the claimant in order to enable the new tribunal to make the findings of fact necessary.

66.  Both parties are directed to submit further evidence and asked to consider making substitute or supplementary submissions. The parties are to have one month from receipt of this decision in which to do this.

Directions relating to facts addressed to the claimant

67.  The claimant should confirm that she and her partner were never married.

68.  The claimant must provide the dates of birth of the three children in respect of whom child benefit was paid, and must indicate whether her partner is the father or any of these children, and, if so, which child or children.

69.  The claimant must provide information about how she conducted her business of letting property in England after the move to Spain. Where and how did she manage the business? To whom were the lettings made? Where was rent remitted?

70.  The claimant should also be able to produce annual tax assessments for the business for the tax years 2006-7 to 2009-10 which will show whether there was any charge to tax or liability for Class 2 or Class 4 national insurance contributions. The claimant should also have annual accounts for these years, which might be helpful evidence about the operation of the business.

71.  The claimant should state how and when she paid Class 2 (and, if applicable, Class 4) national insurance contributions after she moved to Spain.

72.  The claimant should state whether she told any part of HMRC that she and her children had moved to Spain. If so, when and how was this done, and to which office?

73.  The claimant should also state whether she received payment advice notices (a sample appears at pages 18-28 of the documents I have).

Directions relating to the facts addressed to HMRC

74.  HMRC should provide such information as they hold about the paternity of the children in respect of whom child benefit was paid.

75.  HMRC should provide evidence to support the assertion in the submission to the First-tier Tribunal that the claimant has not been liable for Class 1 or Class 2 national insurance contributions following her move to Spain. HMRC is well placed to provide this information, and I direct that they produce for the new tribunal the record of National Insurance Contributions by the claimant for the tax years 2005-2006 to 2009-2010.

76.  HMRC should make enquiries of their counterparts in Spain to determine how they classify members of the family under Article 1(f) of Regulation 1408/71 in relation to entitlement to family benefits or family allowances, since this may have an important effect on the application of Article 76 of Regulation 1408/71. Whether persons are treated as members of the family for the purposes of the application of the rules in Regulation 1408/71 turns, among other things, on whether the person is “defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided”: see Article 1(f) of Regulation 1408/71.

77.  If HMRC are of the opinion that Article 76 applies, they should explain whether the procedure set out in Decision No 147 has been used, and, if not, why not.

78.  HMRC should state when letters were sent to the claimant about increases in child benefit, and should specify the address to which these letters were sent. HMRC should also confirm that a payment advice notice would routinely accompany such letters, and indicate whether the text of the notice changed during the period from 2006 to 2010 from the sample included at pages 18 to 28 of the documents I have.

79.  It will greatly assist the First-tier Tribunal if HMRC provides a representative for the rehearing of this appeal. I hope this can be accommodated.

Directions for both parties

80.  The First-tier Tribunal will be assisted by fresh submissions from both parties which address the issues identified in this decision. I therefore hope that both parties can provide concise and focused submissions for the assistance of the new tribunal.

81.  If the claimant wishes to make arguments based on claims of discrimination, she should include these in any fresh submission. It is not appropriate in this case to seek to reserve the right to raise further arguments in the event of the tribunal not accepting arguments that have been put to the them. The claimant should make all her arguments in the fresh submission.

Directions for the new tribunal

82.  The new tribunal should note the issues I have identified as arising in this appeal and should follow the methodology suggested by my analysis of those issues.

83.  The tribunal should not lose sight of the nature of the decision under appeal, which is that there has been an overpayment of child benefit which is recoverable from the claimant.

Advice and warnings for the claimant

84.  The claimant must realise that the new tribunal is only concerned with her appeal against the decision dated 29 May 2012 and will be looking at circumstances as at that date. Matters arising after that date can only be taken into account in so far as they are relevant to matters on or before that date. This arises because section 12(8)(b) of the Social Security Act 1998 prohibits a tribunal from considering any change of circumstances arising after the date of the decision under appeal.

85.  The claimant must not assume that she will necessarily win her appeal when it is reheard. The outcome turns on matters which require further enquiry, and further findings of fact by the tribunal. Everything is now once again in the hands of the First-tier Tribunal. She might win or she might lose.

 

 

 

Signed on the original Robin C A White

on 11 December 2014 Judge of the Upper Tribunal