DD v Her Majesty’s Revenue and Customs and Secretary of State for Work and Pensions (CB)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2020] UKUT 66 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Benefits for children,Residence,presence conditions,Tribunal procedure,practice,Benefits for children - child benefit,presence conditions - right to reside,practice - evidence,Wright,S |
| Date | 28 February 2020 |
| Published date | 15 April 2020 |
DD v HMRC and SSWP (CB) [2020] UKUT 66 (AAC)
CF/66/2017
1
IN THE UPPER TRIBUNAL Appeal No: CF/66/2017
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal allows the appeal.
The decision of the First-tier Tribunal sitting at Wakefield on
1 September 2016 under reference SC008/16/00023 involved
an error on a material point of law and is set aside.
The Upper Tribunal is not able to re-decide the appeal. It
therefore refers the appeal to be decided entirely afresh by a
completely differently constituted First-tier Tribunal and in
accordance with the Directions set out below.
This decision is made under section 12(1), 12(2)(a) and
12(2)(b)(i) of the Tribunals, Courts and Enforcement Act
2007
DIRECTIONS
Subject to any later Directions by the First-tier Tribunal, the
Upper Tribunal directs as follows:
(1) The appeal will be decided by the First-tier Tribunal after an oral
hearing.
(2) Both the appellant and HMRC should attend that hearing.
(3) Prior to that hearing, and in any event within one month of the
date of issue of this decision, HMRC must provide to the First-
tier Tribunal, and through it the appellant and those acting for
her, A completely new written appeal response that sets out the
relevant law correctly and explains with reference to that law
and the evidence the basis for HMRC’s decision of 5 February
2016.
DD v HMRC and SSWP (CB) [2020] UKUT 66 (AAC)
CF/66/2017
2
Representation: The appellant was represented by Martin Williams
of the Child Poverty Action Group.
Julie Smyth of counsel appeared for the Secretary
of State for Work and Pensions and Her Majesty’s
Revenue and Customs, instructed for both by the
Government Legal Service.
REASONS FOR DECISION
Introduction
1. This is a right to reside appeal which arises in the context of a claim for
child benefit and concerns the “genuine chance of being engaged [in
employment]” test in respect of pure workseekers or ‘jobseekers’ under
what was, at the time relevant to this appeal, regulation 6( 1)(a) and (7)
of the Immigration (European Economic Area) Regulations 2006 (the
“2006 EEA Regs”). At that time that regulation 6 provided, so far as is
material, as follows:
“Qualified person”
6.—(1) In these Regulations, “qualified person” means a person who is
an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student…..
(4) For the purpose of paragraph (1)(a), a “jobseeker” is a person who
satisfies conditions A, B and, where relevant, C.
(5) Condition A is that the person—
(a)entered the United Kingdom in order to seek employment; or
(b)is present in the United Kingdom seeking employment,
immediately after enjoying a right to reside pursuant to paragraph
(1)(b) to (e) (disregarding any period during which worker status was
retained pursuant to paragraph (2)(b) or (ba)).
(6) Condition B is that the person can provide evidence that he is
seeking employment and has a genuine chance of being engaged.
(7) A person may not retain the status of a worker pursuant to
paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer
than the relevant period unless he can provide compelling evidence
that he is continuing to seek employment and has a genuine chance of
being engaged.
(8) In paragraph (7), “the relevant period” means….
(b)in the case of a jobseeker, 91 days, minus the cumulative total of
any days during which the person concerned previously enjoyed a
right to reside as a jobseeker, not including any days prior to a
continuous absence from the United Kingdom of at least 12 months.
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