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Summary

The claimants were separated parents. Both were potentially entitled to child benefit for the child. The mother had been the initial claimant and recipient, but the father later made a claim. Under the priority rules in Schedule 10 of the Social Security Benefits Act 1992, HMRC decided that as on the facts neither claimant (ie, neither parent) had priority and that no valid joint election by them had been made, HMRC had to use its discretion to decide who was entitled, and superseded the award to award it to the father. The First-tier Tribunal allowed the mother’s appeal, holding that a joint election had been made, as the claimants had previously reached an agreement that the mother would receive all the benefits to which she was entitled, with that agreement subsequently documented in a letter from the father’s solicitors and in a consent order made by the Family Court.

Judge Citron allowed the father’s further appeal and substituted a decision that, under paragraph 5 of Schedule 10, no valid joint election had been made by the claimants and it had therefore fallen to HMRC to use its discretion to award the benefit to one of the claimants (and so the award to the father had been correctly made). The tribunal had erred in holding that the agreement between the parents, even though subsequently documented in a consent order by the Family Court, constituted a valid joint election for the purposes of paragraph 5 of Schedule 10. Such a joint election required to be notified to HMRC, and in this case even if the documents had been given to HMRC, they would still not have constituted a valid joint election. The tribunal had further erred in holding that HMRC’s decision to award the benefit to the father instead was not a valid ground for superseding the award to the mother.

On the facts, neither the letter from the father’s solicitors nor the Family Court order had been sent to HMRC by the time of its decision to award the benefit to the father. But even if they had, they did not either separately or together form a joint election that the mother was to be entitled. That was because: (1) the letter from the father’s solicitors was clearly not ‘joint’, coming as it did from representatives of only one of the parties; and (2) the Family Court order contained ‘no clear statement that both parents had agreed’ to the mother’s entitlement to the child benefit – rather it was an undertaking by the mother to apply for whichever benefits she was entitled to, and that ‘falls short’ of such a clear statement (paragraph 19). Regarding supersession grounds, the judge was referred to the decision of Judge Hemingway in CF/2853/2017, in which it was held that HMRC’s exercise of its discretion under paragraph 5 of Schedule 10 was of itself a change of circumstances that provided the ground for superseding the existing award. In the present case, Judge Citron approved that, holding that:

'HMRC’s exercise of their discretion, in default of a joint election, in favour of Father, was itself a change in circumstances justifying supersession of the prior award’ (paragraph 22). 

The First-tier Tribunal’s decision to the contrary was in error.

Comment from CPAG

This is another recent decision in which the terms of a court order were not determinative for the purpose of the priority rules in Schedule 10. For a similar finding, albeit one in which the terms of a court order were not determinative in showing that the children lived with one parent rather than showing there had been a joint election, see HRMC v (1) AV (2) IV [2025] UKUT 286 (AAC).

Summary

This decision is by a three-judge panel of the Upper Tribunal. The panel was convened because the appeals were considered to raise questions of special difficulty or important points of principle or practice. In particular, they concerned the way that the rule requiring a claimant’s ability to carry out an activity ‘safely, to an acceptable standard repeatedly and within a reasonable time period’ (regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013 – ‘the regulation 4(2A) standard’) applied to the descriptors, and how the ‘required period’ rule (regulation 7) applied to them.

The claimant in AH declared conditions of anxiety and depression, panic attacks, back problems and fainting. The claimant in AK declared conditions including anxiety, depression, severe eczema and loss of sight. Both had been refused the high rate of the mobility component, having been awarded 8 points under descriptor 1(e) rather than 12 points under descriptor 1(f). In both cases, the First-tier Tribunal had considered descriptor (e) first and held that, because the claimants could not undertake any journey without experiencing (per the wording of the descriptor) ‘overwhelming psychological distress’ even when assisted, that descriptor applied, and descriptor (f) therefore did not fall to be considered at all. That was so even though the claimants contended that in fact under the terms of descriptor 1(f) they were able to undertake familiar journeys to an acceptable standard when assisted, and so should instead score 12 points under descriptor 1(f).

Mrs Justice Heather Williams DBE, Judge Stout and Judge Butler allowed the further appeals of the claimants and remitted the cases to a fresh tribunal for further fact finding in relation to the applicability (or otherwise) of mobility descriptor 1(f). Both tribunals had erred in applying descriptor 1(e) before (as the three-judge panel holds to be correct) descriptor 1(f). The tribunal in AH had been ‘unduly expansive’ in concluding that the claimant suffered ‘overwhelming’ distress whenever she went out given the evidence that she went out regularly (paragraph 123). Both tribunals had also erred in considering, regarding the relevant period test, only when the claimants actually went out rather than (per regulation 7(2)) what they would have been able to do if support had been available on the majority of the days considered (paragraphs 123 and 129).

The Upper Tribunal noted that the mobility activity 1 descriptors were unique in that the descriptor reflecting a claimant’s greatest level of restriction (ie, 1(e)) is not the highest scoring descriptor (which is 1(f)). That position (purposely created in the legislation) meant that merely considering the descriptors in alphabetical order risked giving insufficient attention to the circumstances in which 1(f) should apply. Accordingly, ‘in any given case’ consideration of the mobility 1 descriptors should conclude with considering 1(f) before 1(e) (paragraph 71) – the judges therefore disagreed with the assumption in MH v SSWP (PIP) [2016] UKUT 531 (AAC), reported as [2018] AACR, that 1(e) should be considered before 1(f). Further, the regulation 4(2A) standard was to be applied to all the descriptors, including those (like both 1(e) and 1(f)) that refer to what a claimant ‘cannot’ do. In the present context, regarding 1(f), the decision maker must first consider whether the claimant ‘cannot follow the route of a familiar journey safely, to an acceptable standard, repeatedly and within a reasonable time period, if unaided’. If the answer to that was no (ie, they can follow such a journey to that standard even if unaided), then the descriptor will not apply; but if the answer is yes (ie, they cannot follow such a journey to that standard if unaided), then the decision maker should then assess whether the claimant can do so if aided. If the answer to that is yes, then descriptor 1(f) applies; ‘if not, it does not’ (paragraph 81). In considering 1(f), ‘the entirety of the claimant’s conditions, including psychological and physical conditions, should be taken into account’ (paragraph 119(j) – the judges disagreed with the implication in MH that psychological conditions were relevant to 1(f) only if they were overwhelming. Consideration of 1(e) ‘only arises if descriptor 1(f) has been addressed and the conclusion reached that the claimant cannot follow the route of a familiar journey to a regulation 4(2A) standard even when in receipt of the assistance referred to in the descriptor’ (paragraph 119e). It is ‘not possible for a claimant to satisfy both descriptors 1(e) and 1(f)’ (paragraph 119i).

Comment from CPAG

This decision holds that (1) in mobility activity 1, in all cases descriptor (e) must be considered last (ie, after consideration), with reference to both mental and physical health problems, of descriptor (f), and (2) the regulation 4(2A) standard must be read into all the descriptors, including those that are about what the claimant ‘cannot’ do. At time of writing, the Secretary of State’s response was unknown.

Summary

The claimant reached pension age on 2 March 2022 but did not claim her state pension until 27 February 2023. That claim was disallowed on 13 March 2023, on the basis that her national insurance record showed that she did not have any qualifying years. In September 2023, HMRC recognised an error in her national insurance record and amended it to award home responsibilities protection between March 1981 and March 1997. The claimant made a second claim on 9 December 2023, stating that she wished to claim from the earliest possible date. That resulted in an award, but only from 9 December 2022, on the basis that the maximum backdating on a claim was 12 months. On appeal, the claimant requested backdating to 3 March 2022, as the reason for not qualifying from that date was official error regarding her national insurance record, and had she been awarded entitlement on her first claim she would have requested backdating to that date. Her appeal was refused, the tribunal holding that the maximum backdating possible was 12 months – ie, only to 9 December 2022.

Judge Wikeley allowed the claimant’s further appeal and substituted a decision that the claimant was entitled from 2 March 2022 – ie, the date she reached pension age. The tribunal had erred in failing to consider whether the claimant had in fact applied for an any time revision of the refusal of her first claim, on the basis of official error – ie, the mistake about her national insurance record. Judge Wikeley found that the claimant’s second claim and request for backdating to the earliest possible date should have been treated as such an application. The tribunal should have found that the refusal of the first claim was revised for official error, and the decision on the  second claim substituted with a decision that the claimant was entitled with effect from 3 March 2022.

It was certainly the case that the maximum period for which a claim for state pension can be backdated is 12 months. So, had the tribunal been ‘solely and exclusively’ concerned with the second claim made on 9 December 2023, backdating of entitlement would only have been possible to 9 December 2022. But the tribunal ‘fell into error’ by failing to consider if there was any way by which the decision of 13 March 2023 refusing the claimant’s first claim could have been changed (paragraph 15). Given that in principle decisions are final, that decision could only be changed by revision or supersession. 

The judge considered that on the second claim, the decision maker had given a ‘fresh decision in respect of the whole period from 3 March 2022’, comprising a disallowance from 3 March 2022 and an award from 9 December 2022. That was an error as the refusal of the initial claim could and should have been revised for official error, with resulting entitlement from 3 March 2022. Accordingly, the question that the tribunal should have asked itself was ‘whether in all the circumstances the existing disallowance decision dated 13 March 2023 in respect of the first claim could now be revised into an award’ (paragraph 17). As submitted by the Secretary of State, that was possible on the basis of any time revision for official error under regulation 3(5)(a) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999, SI No.991.

Comment from CPAG

The grant of appeal to the Upper Tribunal included that the district judge noted that the error regarding national insurance records had been brought into the public domain by the journalist Martin Lewis, and it was appropriate for the Upper Tribunal to consider the appeal ‘as the result may affect not just this appellant but many other people’. More widely, the basic legal point is that a decision (including a refusal of a claim) that is wrong because of ‘official error’ can be the subject of a revision at any time. In the present case, evidently it was accepted that the claimant’s request for maximum backdating when making her second claim should have been treated as including a request for that. For more on appeal rights and official error revision, see our article, Any time revision: an appealing prospect?.