The Upper Tribunal (UT) enforced the principles of natural justice, ruling that when children genuinely live with both parents, the final decision regarding state benefit entitlement falls exclusively to administrative discretion and not judicial determination.
Facts:
This appeal to the UT concerned a dispute between the mother (M) and the father (F) over the priority of entitlement to child benefit for two of their children (J and A).
M initially received child benefit for J and A, while F was receiving it for their third child, D. On 11th November 2021, F claimed child benefit in respect of J and A. HMRC superseded the existing award in January 2022 and awarded the benefit to F, effective 6 December 2021, based on F's claim of a change in the children's residence.
M appealed to the First-tier Tribunal (FTT), which awarded the benefit back to her. HMRC sought permission to appeal, which was given by the FTT, due to a failure to join F to the proceedings.
Decision:
The UT allowed the appeal, set aside the FTT’s decision for errors of law, and remade the decision to refer the matter to HMRC for final determination. The UT found two fundamental errors that required the FTT's decision. The first was the failure to include F in the proceedings and the application of an incorrect legal test. Since the outcome of the appeal directly affected F's entitlement to child benefit, this omission was an unfair procedural error – one that deprived him of the opportunity to participate, thus vitiating the FTT's decision. Moreover, the FTT had applied an irrelevant consideration, specifically the welfare of the children (citing the Children Act 1989), to decide priority of entitlement. The UT reasoned that once both parents are found to be "responsible for" the child, Section 144 and Schedule 10 of the Social Security Contributions and Benefits Act (SSCBA) 1992 must be followed sequentially. The welfare test is not relevant under Paragraphs 1-4 of Schedule 10, and thus the FTT lacked jurisdiction to apply the discretionary test under Paragraph 5.
The UT reviewed previous case law, concluding that the interpretation of "living with" a parent (s.143(1)(a)) is a question of fact and one that does not depend on where the child spends the majority of their time. The UT determined that, on the balance of probabilities, the children lived with both parents at the relevant date based on the Shared Care Court Order (SCCO) and associated evidence. Since both M and F were entitled under s.143(1)(a), the tie-breaker rules in Paragraphs 1-4 of Schedule 10 did not apply. The matter, therefore, fell under Paragraph 5.
Implications:
This case confirms that for social security purposes, the test of "living with" is a factual inquiry independent of the legal labels used in court orders. A court order is merely evidence; it is the regular, factual pattern of life in both homes that determines if a child lives with both parents. The ruling solidifies the principle that a person can be deemed to be "living with" a dependent, even if that dependent spends a minority of their time with them. Legally speaking, the arrangement must simply be a regular and established feature of their lives.
This decision provides a clear mandate on the interpretation of statutory social security tests and limits judicial intervention. The ruling stresses that tribunals must strictly adhere to the legislative priority framework (Schedule 10) established by Parliament. They cannot bypass or substitute these rules with general equitable principles, such as the "welfare of the child" test, which belongs exclusively to family court jurisdiction or specific administrative discretion.
