His Majesty's Revenue & Customs v The Secretary of State for Work and Pensions and SA (TC)
| Jurisdiction | UK Non-devolved |
| Judge | Judges Wright,Markus KC,West |
| Neutral Citation | [2022] UKUT 350 (AAC) |
| Subject Matter | Tax credits,family credit - other,Tribunal procedure,practice - tribunal jurisdiction,Universal Credit - Other,Three Judge Panel |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 18 January 2023 |
[2023] AACR 4
HMRC v SSWP and SA (TC)
1
[2023] AACR 4
His Majesty’s Revenue and Customs v Secretary of State for Work and Pensions & SA (TC)
[2022] UKUT 350 (AAC)
Judge Wright
Judge Markus KC
Judge West
20 December 2022 UA-2020-000563-TC
Tax Credit and family credits; Tribunal Procedure and Practice; Universal Credit; Right
to Reside; Entitlement
The claimant and his wife are German nationals. They had been in receipt of tax credits since 2010 and child tax
credit since 1 October 2011. On 21 June 201 8 the claimant made a claim for universal credit, giving a London
address.
On 25 June 2018 His Majesty’s Revenue and Customs (HMRC) received a stop notice from the Department for
Work and Pensions (DWP) stating that the basic conditions in section 4(1)(a) to (d) of the Welfare Reform Act
2012 (“the 2012 Act”) were satisfied. It was accepted that the basic conditions of entitlement to universal credit
were met on the basis of the claimant’s and his wife’s ages as given in their application, their p resence in Great
Britain as tested through the provision of their London address, and their statem ent that they were not receiving
full-time education
The claimant and his wife were subsequently issued with a notice under section 18 of the Tax Credits Act 2023
that they were no longer entitled to tax credits from the date of their universal credit claim.
Thereafter, the DWP made a decision on the universal credit claim, concluding that they were not entitled to
universal credit as they did not have a qualifying right to reside in the United Kingdom and were therefore, by
regulation 9(1) of the Universal Credit Regulations 2013, treated as not “in Great Britain”, with the result that they
did not meet the entitlement condition of presence in Great Britain set out in section 4(1)(c) of the 2012 Act, as
read with regulation 9.
The claimant appealed to the First-tier Tribunal (F-tT) under section 38 of the 2002 Act against the decision to
stop his award of tax credit. The F-tT allowed the ap peal stating that as the claimant and his wife did not meet all
the relevant basic conditions of entitlement to universal credit, they remained en titled to tax credits.
This appeal was brought by HMRC against the F-tT’s decision. The claimant was the second respondent to the
appeal and the DWP, earlier having been joined to the Upper Tribunal appeal proceedings because he is responsible
for the administration of the universal credit benefits scheme and making decisions under that scheme, was the first
respondent and supports the appeal.
Held, allowing the appeal, that:
1. regulation 8(2) of the Universal Credit (Transitional Provisions) Regulations 2014 (UC TP Regs) provided
that where regulation 8 applied, the tax credit award was to cease by operation of law. Whether regulation 8 applied
at the material time in volved answering two questions of fact, which had to be determined on relevant evidence:
(i) whether a claim for universal credit had been made; (ii) whether the Secretary of State was in fact satisfied that
the claimant met the basic conditions specified in section 4(1)(a) to (d) of the Welfare Reform Act 2012. The
language used in regulation 8(1 ) of the 2014 Regulations was not concerned with any wider issue of whether the
claim had been properly made or the Secretary of State had been p roperly satisfied that the specified basic
conditions had been met. Had that bee n the intention such language could have been used. Perhaps more
importantly, there was no sound basis for reading in language such as “properly satisfied” by necessary implication
when to do so would involve HMRC trespassing on the decision-making functions for universal credit (paragraphs
31, 32).
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His Majesty's Revenue and Customs v Secretary of State for Work and Pensions and GS (TC)
...Mrs Justice Farbey, convened a threejudge panel in the case of HMRC v (1) Secretary of State for Work and Pensions (2) SA (TC) [2022] UKUT 350 (AAC) (“SA”) to decide that appeal in order to give a definitive answer to the first two questions summarised above in the context of a tax credits ......