DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the Appellant’s appeal.

 

The decision of the Newcastle-upon-Tyne First-tier Tribunal dated 30 July 2012 under file reference SC229/12/00036 involves an error on a point of law and is set aside. 

 

The Upper Tribunal re-makes the tribunal’s decision in the following terms:

 

“The Appellant’s appeal is allowed.

 

The (First) Respondent’s decision dated 28 January 2011 (as revised on 17 May 2011 and 21 June 2011) that the Appellant is not entitled to Home Responsibilities Protection (HRP) for the period from 6 April 1986 to 5 April 2005 is set aside.

 

For the avoidance of doubt, the Tribunal notes the Respondent’s concession that the Appellant is entitled to HRP from 6 April 1984 to 5 April 1986.

 

The Appellant is also entitled to HRP from 6 April 1986 to 5 April 1990.

 

The Appellant is not entitled to HRP for the period from 6 April 1990 because (as matters currently stand) those subsequent tax years are all already qualifying years for purposes of calculating entitlement to state retirement pension by virtue of the payment of Class 1, Class 3 or a mixture of Class 1 and Class 3 National Insurance contributions in respect of each relevant tax year.”

 

 

This decision is given under section 12(2)(a) and 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

Introduction

1. This appeal concerns the arcane (but for many claimants, especially women, very important) area of law relating to home responsibilities protection (HRP) and consequential retirement pension entitlement. The case has been complicated by an EU dimension.

 

Summary of the Upper Tribunal decision

2. My conclusion is that the First-tier Tribunal (FTT) erred in law in reaching its decision. I re-make the decision that the FTT should have made, in the terms as set out above. I hope that by the time she has finished reading these reasons the Appellant will understand why I cannot give her everything she is asking for.

 

3. I regret this decision has been so long in the making. That is partly due to the factual and legal complexity of the case. It is also due to the failure of the French social security authorities to respond in a timely fashion to a written question posed to them by Her Majesty’s Revenue & Customs (HMRC). I do not know whether an answer would have been forthcoming if the HMRC enquiry to their French counterparts had been posed in French rather than in English.

 

The HMRC decisions under appeal

4. On 28 January 2011 HMRC wrote to the Appellant advising her that she was not entitled to HRP from 6 April 1986 to 5 April 2005. The Appellant appealed. On 17 May 2011 HMRC wrote to the Appellant advising her that she was not entitled to HRP from 6 April 1984 to 5 April 2005. The Appellant again appealed. On 21 June 2011 HMRC wrote to the Appellant advising her, as it had informed her originally, that she was not entitled to HRP from 6 April 1986 to 5 April 2005. The Appellant appealed yet again.

 

The First-tier Tribunal’s decision

5. The FTT listed the appeal for an oral hearing. The Appellant did not attend. As the FTT noted in its statement of reasons, this was understandable given she now lives in Australia. The FTT dismissed the appeal; the decision notice recorded that the original HMRC decision made on 28 January 2011 was confirmed, which did not tell quite the whole story. That decision had been revised by the decision of 17 May 2011, which was more disadvantageous to the Appellant. The decision was then revised again on 21 June 2011, reverting to the same terms as the original decision. The statement of reasons also involved a clear error, as it described two of the HMRC decisions as relating to the period from 1984 and only one decision being effective from 1986, when the actual position was the other way round. The confusion over the dates is material and is reason enough to find that the FTT decision involves an error of law.

 

The grant of permission to appeal

6. The Appellant applied to the Upper Tribunal, essentially arguing that as the spouse of a migrant worker in the EU she had been the victim of unlawful discrimination. I gave permission to appeal on two grounds.

 

7. The first was a procedural point. The Appellant had ticked the box asking for an oral hearing; she had also enquired on several occasions about the possibility of a video-link hearing. She never got any reply on that point from the FTT office. There is no evidence the request was ever even considered (notwithstanding that part of the overriding objective is to ensure, so far as is practicable, that the parties are able to participate fully in the proceedings: see rule 2(2)(c)). As I noted in giving permission:

 

“There would obviously be major logistical issues in terms of international liaison, equipment and time zones. However, the definition of ‘hearing’ in rule 1(3) of the Tribunal Procedure (FTT) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685) contemplates the possibility of an oral hearing by video link. Was it an error of law by the FTT to proceed without (apparently) exploring that possibility?”

 

8. The Respondents (the Secretary of State for Work and Pensions and HMRC) have not addressed this point at all in their written submissions on the appeal. I also note that rule 1(3) contemplates a telephone hearing as another option, a procedure I have myself used in another case altogether for conducting a case management hearing with one party in England and the other party in Australia. In the absence of full argument on the point, I certainly do not rule that the Appellant was entitled to a video-link (or telephone) hearing. Even when the current HMCTS reform programme has rolled out, the choice of type of hearing will presumably ultimately be a judicial decision. However, the Appellant was certainly entitled to a ruling on her request or application and, if a video-link (or telephone) hearing was not possible, a brief explanation as to why not. The failure to deal with that request amounts to a further error of law.

 

9. The second basis on which I gave permission was to explore the EU dimension to the appeal, and in particular the potential application of EC Regulation 883/2004 in the light of my earlier decision in SF v Secretary of State for Work and Pensions and HMRC (HRP) [2013] UKUT 175 (AAC), applying the principles laid down by the Court of Justice in C-522/10 Reichel-Albert v Deutsche Rentenversicherung Nordbayern (CJEU, 19 July 2012).

 

10.  However, at this stage there is no need to venture into those deep waters. The errors of law identified in paragraphs [5] and [8] above are sufficient to allow the Appellant’s appeal and set aside the First-tier Tribunal’s decision. There is no point whatsoever in remitting the case to another such Tribunal, and so I can proceed to re-make the decision under appeal.

 

The factual background to the appeal

11.  The factual background is highly complex but a summary will suffice for present purposes. The Appellant is a British citizen born in May 1959; it follows she will not be eligible to claim her UK state retirement pension until May 2025. Her husband has dual French and British nationality. They have three daughters, born in 1984, 1987 and 1989 respectively.

 

12.  In or about 1983 the Appellant’s husband started working in London for a French company, making social security contributions in France. Meanwhile the Appellant claimed child benefit in the UK for her first daughter, born in January 1984. UK child benefit was paid to her until 8 December 1986, when the family moved from London to Dublin for about five months. This move was because her husband’s employer had seconded him to work in Ireland. At around the same time, the father claimed a family allowance under the French social security scheme. The Appellant states, and I accept, that she was advised at the time by the British child benefit office that French family allowances were more generous so this course of action would be more advantageous to her. Her UK child benefit ceased (and she has never had UK child benefit since).

 

13.  The family returned to the UK in 1987. There was, as noted, no further claim to UK child benefit. The Appellant’s UK national insurance record shows no contributions as having been paid in 1987/88 and 1988/89, which is entirely consistent with the dates of birth for her younger two daughters. Indeed the four tax years from 1986/87 through to 1989/90 are recorded as non-qualifying years for purposes of entitlement go the state retirement pension. She is then recorded as having paid Class 1 national insurance contributions for the years from 1990/91 through to 1995/96, in some years topped up by voluntary Class 3 contributions, making each of those years a qualifying year for pension purposes. In 1995 the family moved to the Netherlands for about four years, returning to the UK in the summer of 1999. The Appellant paid Class 3 contributions to cover the whole of each tax year from 1996/97 through to 2001/02. She then paid Class 1 contributions for the tax years from 2002/03 through to 2006/07, again topped up by Class 3 contributions for some years, so as to make them all qualifying years for pension purposes. The family then moved to Australia in July 2006.

 

14.  To sum up, the Appellant’s National Insurance record shows that nearly all the tax years between 1975/76 and 2008/09 are qualifying years for the purposes of pension entitlement, typically on the basis of either having paid Class 1 contributions or a mixture of Class 1 and Class 3 contributions for the years in question. The Appellant has thus endeavoured to keep her contributions record up to date even though she has been living outside the jurisdiction for lengthy periods. The only four non-qualifying years in this 34-year period are the four years from 1986/87 through to 1989/90.

 

15.  I should mention in this context the changes made by section 1 of the Pensions Act 2007. This amended Schedule 3 (‘Contribution conditions for entitlement to benefit’) to the Social Security Contributions and Benefits Act 1992 by inserting a new paragraph 5A. This replaced the previous two contribution conditions for Category A retirement pensions for people reaching state pension age as from 6 April 2010 with a single contribution condition (see paragraph 5A(2)). The effect of this – in broad terms – is that the number of years needed to qualify for a full Category A pension has been reduced from 44 years for a man and 39 years for a woman to 30 qualifying years for men and women alike. This in turn may well improve the prospects for the Appellant’s eventual retirement pension, irrespective of the outcome of the present appeal.

 

16.  Be that as it may, in January 2011 the Appellant applied to HMRC for HRP, enclosing a letter from her husband asking, if necessary, for any eligibility he might have to HRP to be transferred to her. This prompted the HMRC decision which led to the appeal to the FTT, whose decision is now on appeal to the Upper Tribunal.

 

The relevant law governing home responsibilities protection

17.  As I explained in SF v Secretary of State for Work and Pensions and HMRC (HRP):

 

“14. HRP was introduced by the Social Security Pensions (Home Responsibilities and Miscellaneous Amendments) Regulations 1978 (SI 1978/508; ‘the 1978 Regulations’) with effect from 6 April 1979. HRP is now governed by the Social Security Pensions (Home Responsibilities) Regulations 1994 (SI 1994/704; ‘the 1994 Regulations’). The purpose of HRP is to help with satisfying the second contribution condition for the various long-term contributory benefits specified in paragraph 5 of Schedule 3 to the Social Security Contributions and Benefits Act 1992 (‘the 1992 Act’) (including Category A or B state retirement pensions). HRP assists by defining when a given tax year is a year of home responsibilities protection. Such years are then deducted from the number of years in which a person would otherwise have to satisfy the contribution conditions, subject to the limits set out in paragraph 5(a) of Schedule 3 to the 1992 Act. In effect, as the Appellant puts it, a year of HRP is a ‘free credit’ year in meeting the contribution conditions.

 

15. So when is a year an HRP year? The various routes for qualifying for a year of HRP were set out in regulation 2 of the 1978 Regulations and the 1994 Regulations respectively. One such route (using the shorter formulation in the 1994 Regulations) is where ‘child benefit awarded to him was payable in respect of a child under the age of 16’ (regulation 2(2)(a)). Child benefit, however, is subject to a presence condition (see now section 146 of the 1992 Act, as amended by the Tax Credits Act 2002 and the Child Benefit Act 2005). On the face of the domestic legislation, as the HMRC submission to the FTT explained, ‘there is nothing which allows the payment of Child Benefit to continue once a person has left the United Kingdom to take up residence in another country’.”

 

18.  There is one further matter I should mention in this context. A year which is already a qualifying year for the purposes of meeting the second contribution condition cannot be a year for which HRP is available (this is the effect of Social Security Contributions and Benefits Act 1992, Schedule 3, paragraphs 5(3) and (7)).

 

19.  However, the summary of the legal position as set out above in any event needs updating now as HRP was abolished with effect from 6 April 2010. It was replaced by Class 3 credits for certain parents and carers (see section 23A of the Social Security Contributions and Benefits Act 1992, as inserted by section 3(1) of the Pensions Act 2007). Past years which would previously have been covered by HRP are likewise converted into Class 3 credits. As the parties have dealt throughout with the case on the basis that the applicable provisions are those relating to HRP, I do so likewise, even if the Class 3 credits rules apply now in substitution.

 

The proceedings before the Upper Tribunal

Introduction

20. There have been a number of submissions by the parties in response to a series of directions as the appeal has (slowly) progressed. This has helped to crystallise the issues to be resolved. As I am re-making the decision under appeal, it makes sense to start with the position of the Respondents, who seek to justify (at least in most respects) the original HMRC decision that was under appeal to the FTT.

 

The Respondents’ arguments

21. The Respondents’ position is as follows (the representative of the Secretary of State for Work and Pensions also speaks for HMRC in this regard). They make five discrete points, each relating to different stages in the chronology of this case.

 

22. First, the Respondents accept that the Appellant is entitled to HRP for the 1984/85 and 1985/86 tax years under domestic law. This because she was entitled to UK child benefit from January 1984 until December 1996. So the Respondents make no attempt, and rightly so, to justify the (even less advantageous) decision notified on 17 May 2011 (see paragraph 4 above). The confusion generated by that early, if temporary, change of position does not reflect well on the way that HMRC has handled the Appellant’s enquiries and this appeal.

 

23. Second, the Secretary of State undertakes that, in principle, he will also award the Appellant HRP to cover the four tax years from 1986/87 to 1989/90. These are, as noted above, the only four non-qualifying years on the Appellant’s national insurance record, and cover the period immediately after the family’s return to the UK from Dublin and subsequently the birth of their younger two daughters in this country. This is on the agreed basis that the Appellant had previously worked in the UK and did not work in another EEA State (or Switzerland), although her husband was employed by a French company and received a French family benefit. The Secretary of State adds that a definitive determination to this effect cannot be made until the Appellant claims her state retirement pension in 2025. The Secretary of State’s representative further points out that, depending on her final contributions record at that date, the Appellant may or may not need to rely on HRP at that stage. Any award of HRP for this period would also be nullified if the French social security authorities later accepted responsibility for any “child raising period” (CRP, the EU equivalent of HRP). On the experience to date, it seems unlikely that the French authorities will communicate any such intention.

 

24. Third, the Respondents argue that the Appellant’s national insurance record shows that the tax years from 1990/91 through to 2004/05 (during which period the Appellant lived in the Netherlands for about 4 years from 1995) are in any event all qualifying years on the basis of either Class 1 or Class 3 contributions (or a combination thereof) having been paid. As those years are qualifying years anyway, they say HRP cannot be awarded for that entire period.

 

25. Fourth, with regard to that same period from 1990/91 through to 2004/05, HMRC  accepts that for 11 of those years (1990/91-1993/94 and 1996/97-2003/04) the Appellant paid partial or complete Class 3 contributions for each year in issue. The Secretary of State’s representative states that HMRC has considered whether to make a refund of those voluntary contributions but has decided it cannot do so. In summary this is because it considers no error was made at the time of payment and any such request is now out of time (see Social Security (Contributions) Regulations 2001 (SI 2001/1004; “the Contributions Regulations”), regulation 52).

 

26. Fifth, and finally, the Respondents argue that HRP cannot be awarded for the 2005/06 tax year as (i) that particular year is a qualifying year in any event; and anyway (ii) HRP is only available for complete tax years where the HRP criteria are met throughout the year – in this case it is not in dispute that the Appellant’s youngest child reached 16 in May 2005, thus also precluding any award. In my view, that reasoning on this fifth point is not seriously open to any effective challenge.

 

The Appellant’s arguments in reply

27. As to the first of the Respondent’s arguments, the Appellant obviously accepts, as she has argued all along, that she is entitled to HRP for the 1984/85 and 1985/86 tax years.

 

28. As to the second of the Respondents’ points, the Appellant welcomes HMRC’s belated acceptance that in principle she is entitled to HRP for the only four years currently noted on her national insurance record as non-qualifying years (1986/87-1989/90). She also confirms that she has never received CRP from France (or indeed any other country).

 

29. In relation to the Respondents’ third point, the Appellant argues that she was precluded from paying Class 3 contributions for the relevant years as these years qualified for HRP and so should be Class 3 precluded years, relying on regulation 49(1)(a) of the Contributions Regulations.  She further, and more generally, argues that she is entitled to have these years recognised for HRP purposes on the basis of Article 3 of EU Regulation 1408/71 and Article 5 of Regulation 883/2004.

 

30. As regards the fourth of the Respondents’ points, the Appellant points to the financial sacrifice that she made in making Class 3 contributions. She further contends that she is entitled to have those contributions refunded on the basis of HMRC error, and that she is not too late in making that request (or, if she is out of time, then she says time should be extended in her favour).

 

31. The Appellant does not directly address the Respondents’ fifth and final point, but it is clear in any event that her main concern is the period of 11 years for which she paid Class 3 contributions and has been denied both HRP cover and a refund of those contributions.

 

32. Given there is no live or real dispute over both the Respondents’ first issue (regarding the 1984/85 and 1985/86 tax years) and fifth issue (relating to 2005/06), I can focus my attention on the second, third and fourth points, which all refer to the substantial intervening period from 1986/87 through to 2004/05.

 

The Upper Tribunal’s analysis

Point 2: the treatment of the tax years from 1986/87 to 1989/90

33. This issue relates to the four tax years when the Appellant was living in the UK and immediately after the family’s return from Dublin. The Secretary of State accepts there is entitlement to HRP for this period, based on the decisions in C-522/10 Reichel-Albert and SF v SSWP and HMRC (HRP). The Secretary of State adds, however, that a definitive determination to this effect cannot be made until the Appellant claims her state retirement pension in 2025. The implications of this argument needed teasing out somewhat in the course of further submissions.

 

34. The Secretary of State accepts in this context that the Appellant is entitled to a decision now that she qualifies for HRP for the four years in question. This is consistent with the wording of paragraphs 5(3) and (7) of Schedule 3 to the Social Security Contributions and Benefits Act 1992. It is also consistent with case law authority (see the decision of Mr Commissioner Williams (as he then was) in CP/4205/2006, e.g. at paragraph 64(2)). What cannot be determined now is whether or not the Appellant will actually need to rely on that established HRP entitlement for those years in the calculation of her pension entitlement. That latter decision can only be taken in 2025, at the point when the Appellant claims her pension and the full picture is clear.

 

Point 3: the treatment of the tax years from 1990/91 through to 2004/05

35. Two of the years in this period (1994/95 and 1995/96) are not in issue. These were years when no Class 3 contributions were paid, or needed to be paid, as the Appellant had paid sufficient Class 1 contributions from her employment.

 

36. Turning to the other 11 years in this period for which the Appellant has paid Class 3 contributions (i.e. 1990/91 to 1993/94 and 1996/97 through to 2003/04, but with the exception of 2002/03), the position is more complicated.

 

37. The Appellant’s case is that she is entitled to have these years recognised for the purposes of entitlement to HRP on the basis of Article 3 of EU Regulation 1408/71 and Article 5 of Regulation 883/2004. In SF v SSWP and HMRC (HRP) (an appeal which dealt with the predecessor European Regulation to Regulation 883/2004), my decision was as follows:

 

“The Appellant was resident in Belgium and in receipt of allocation familiales, the Belgian equivalent to child benefit, between 1979 and 1986.

 

The rule in regulation 2(2)(a) of the Social Security Pensions (Home Responsibilities) Regulations 1994 (SI 1994/704), restricting HRP to those in receipt of UK child benefit, in conjunction with the presence or residence test in child benefit, acts as a restriction on the right of free movement in the EU and is not objectively justified.

 

Accordingly, on the facts of the present case Article 21 TFEU and Regulation 1408/71 requires the Secretary of State, for the purposes of awarding a state retirement pension, to take account of the Appellant’s child-raising period in Belgium as if that period had been completed in the UK and the Appellant’s pre-existing award of child benefit had continued uninterrupted.

 

Thus the Secretary of State (and HMRC) must take into account, for the purpose of calculating the Appellant's periods of HRP, the periods during which she was in receipt of Belgian allocation familiales as if they were periods of receipt of UK child benefit. The determination of the details of the years for which the appellant has the benefit of HRP is remitted to the Secretary of State accordingly.”

 

38. The Respondents have already acknowledged that the application of those principles in the instant case means that the Appellant is entitled to HRP for the tax years from 1986/87 to 1989/90 when she was living in the UK, on the family’s return from Dublin, and when they were in receipt of French family benefits. Why therefore, one might reasonably ask, does the same principle not apply to the years from and including 1990/91, whether the family was residing either in the UK or in the Netherlands?

 

39. The short answer to this is as follows. The four years from 1986/87 to 1989/90 are non-qualifying years in the Appellant’s national insurance record. They can therefore be years for which she can be credited with HRP, given the relevant criteria are satisfied. The years from 1990/91 are already qualifying years by virtue of her payment of Class 1 and/or Class 3 contributions. Accordingly they do not need to be ‘rescued’ by the attribution of HRP. The only way to read together paragraphs 5(3) and (7) of Schedule 3 to the Social Security Contributions and Benefits Act 1992 is that payment or crediting of contributions is regarded as the primary means of meeting the second contribution condition (paragraph 5(3)). Attribution of HRP is regarded as a secondary and alternative route to satisfying that contribution condition “notwithstanding that paragraphs (a) and (b) of sub-paragraph (3) are not complied with as respects each of the requisite number of years” (paragraph 5(7)). This principle is continued for past periods for those who reach pensionable age after 6 April 2010 by virtue of section 23A(5).

 

40. The Appellant also relies on regulation 49(1)(a) of the Contributions Regulations, which provides that “no person shall be entitled to pay a Class 3 contribution – (a) in respect of any year if he would, but for the payment of such a contribution, be entitled to be credited with a contribution”. The difficulty with this argument is that at the time of the relevant tax years in question, when the Appellant actually paid the Class 3 contributions, there was no such entitlement to be credited with a contribution. The Pensions Act 2007 introduced weekly credits for parents in respect of their caring activities for periods after 6 April 2010. Before that date, HRP was in operation. True, section 23A(5) of the Social Security Contributions and Benefits Act 1992 now provides for crediting of Class 3 contributions for periods before April 2010, but this is also subject to regulations made under paragraph 5(7) of Schedule 3.

 

41. It follows that as regards the tax years from 1990/91 through to 2004/05 these are already qualifying years, either because of the payment of Class 1 or Class 3 contributions or a mixture of the two Classes. There is no need to consider any potential HRP entitlement. However, this takes us to what is one of the Appellant’s main bones of contention, namely HMRC’s refusal to refund the Class 3 contributions paid during this period. If they were to be refunded so as to make some of these years non-qualifying years, then HRP or its modern day equivalent may be relevant.

 

Point 4: HMRC’s refusal to refund the Class 3 contributions for those years

42. There is, however, a very short answer to this point. HMRC’s refusal to refund the Appellant’s Class 3 contributions for the 11 years in question is very simply a matter that is outside my jurisdiction, i.e. beyond my legal powers.

 

43. Put not quite so shortly, the Upper Tribunal is not an all purpose complaints bureau. Its jurisdiction is limited to hearing appeals on a point of law from decisions of the FTT (Tribunals, Courts and Enforcement Act 2007, section 11). The Social Entitlement Chamber of the FTT in turn hears appeals from certain decisions by the Secretary of State (Social Security Act 1998, section 12). HMRC’s decision to refuse the Appellant a Class 3 refund was not a decision that was before the FTT (Social Entitlement Chamber) in Newcastle at first instance and so is not before me now. Indeed, most contributions decisions are decisions for HMRC, not the Secretary of State for Work and Pensions (see Social Security Contributions (Transfer of Functions etc.) Act 1999, section 8(1) and the Contributions Regulations, regulation 155A as amended). Furthermore, any appeal from such a contributions decision typically lies to the Tax Chamber of the FTT (with onward appeals to the Tax and Chancery Chamber of the Upper Tribunal), not the Social Entitlement Chamber (whence appeals go to the Administrative Appeals Chamber of the Upper Tribunal).

 

44. I therefore have no jurisdiction to deal with the issue of any refund of the Appellant’s Class 3 contributions. I simply make two short observations.

 

45. First, HMRC’s ‘decision’ not to make any refund of the Appellant’s Class 3 contributions appears to have been intimated in the course of the written submission from the Secretary of State’s representative in these Upper Tribunal proceedings dated February 2, 2015. I have seen no formal notification of any decision by HMRC in this regard. I am sure the Secretary of State’s representative was trying to be helpful. However, if it is a formal HMRC decision which carries appeal rights then presumably the decision needs to be notified to the Appellant in the proper manner, rather than by an indirect route in the course of submissions made in the present proceedings.

 

46. Second, the Appellant’s submissions in reply on this matter are unfortunately misconceived in certain respects. She complains that the Respondents have not cited the relevant legislation correctly. In fact they have. However, I can understand why she makes these points as the consolidated and up-to-date version of such legislation is not readily available to the litigant in person. To take just one example, regulation 52 of the Contributions Regulations no longer exists in the version that was originally enacted in 2001. It has since been entirely replaced (with effect from April 6, 2004) by a wholly new regulation 52, inserted by regulation 12 of the Social Security (Contributions, Categorisation of Earners and Intermediaries) (Amendment) Regulations 2004 (SI 2004/770). The Respondents have cited the correct current version (whether they have applied it correctly is another matter, and not for me for the reasons I have explained). There are two other final matters which in fairness I should deal with.

 

Three final matters

47. First, in her original appeal against the HMRC decision of 17 May 2011 the Appellant argued that on temporarily leaving London for Dublin she should have received child benefit for a further 8 weeks after her last claim date of 8 December 1986. This is, she says, because of the rule that a person who is ordinarily resident in the UK but is temporarily absent from Great Britain shall be treated as being in GB during the first eight weeks of any period of absence (a rule now contained in Child Benefit (General) Regulations 2006 (SI 1006/223), regulation 24(1)(a)). The short answer to this is that again I have no jurisdiction over this issue, as it was not part of the HMRC decision which was appealed to the FTT. In any event, any decision terminating child benefit would presumably have been made and notified in or around December 1986 and so an appeal against that decision would now be way out of time.

 

48. The second matter is the Appellant’s request for an order of costs in her favour in the event that her appeal succeeds. Her appeal has succeeded, to some extent at least. However, the FTT itself has no power to make a costs order (see rule 10 of the Tribunal Procedure (FTT) (Social Entitlement Chamber) Rules 2008). It follows that the Upper Tribunal likewise lacks the jurisdiction to make any order as to costs (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rule 10(1)(c)). So I cannot and therefore do not make a costs order.

 

49. Third, I do not underestimate the difficulties faced by the Appellant in seeking to pursue her appeal. Despite the advent of the Tribunals, Courts and Enforcement Act 2007, there has been no real change to the “extraordinary legislative version of snakes and ladders” facing those in the Appellant’s position, resulting in her being faced with “following the almost surreal complexity that the current procedures have imposed” (CP/4205/2006 at paragraphs 68 and 69, per Mr Commissioner Williams). It is time policy-makers took those observations fully on board.

 

Conclusion

50.  For the reasons above I allow this appeal, in part at least, and set aside the decision of the FTT (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The decision that the FTT should have made is as set out at the head of these reasons (section 12(2)(b)(ii)). I repeat it here for convenience:

 

“The Appellant’s appeal is allowed.

 

The (First) Respondent’s decision dated 28 January 2011 (as revised on 17 May 2011 and 21 June 2011) that the Appellant is not entitled to Home Responsibilities Protection (HRP) for the period from 6 April 1986 to 5 April 2005 is set aside.

 

For the avoidance of doubt, the Tribunal notes the Respondent’s concession that the Appellant is entitled to HRP from 6 April 1984 to 5 April 1986.

 

The Appellant is also entitled to HRP from 6 April 1986 to 5 April 1990.

 

The Appellant is not entitled to HRP for the period from 6 April 1990 because (as matters currently stand) those subsequent tax years are all already qualifying years for purposes of calculating entitlement to state retirement pension by virtue of the payment of Class 1, Class 3 or a mixture of Class 1 and Class 3 National Insurance contributions in respect of each relevant tax year.”

 

 

 

 

Signed on the original Nicholas Wikeley

on 07 December 2015 Judge of the Upper Tribunal