I have an appeal hearing in a few weeks time and would appreciate your views.

Child was living with mum, went to live with gran but mum did not relinquish CB or financially support the child. HMRC accept that the child moved on 05/05/08, but have treated him as living with mum until 29/06/08, ie they have applied the 56 day rule. I believe they should have applied the 3 week rule.

In the case of competing claims, Schedule 10 of the SSCBA 1992 awards priority to the person to whom the benefit has already been awarded for a period of 3 more weeks from the date the new claim is made. Gran says she made her claim on 05/05/08, so I think she was entitled to Child Benefit from 26/05/08 at the latest. Notwithstanding that CB may have been paid to mum before 26/05/08, reg 38(1) of the child Benefit (General) Regulations 2006 provides that a new claimant is not disentitled to benefit by virtue of section 13(2) of the SS Administration Act 1992 (CB cannot generally be paid to two customers for the same week) if it has been determined that a recoverable overpayment has been made.

I am submitting that HMRC should have made determinations that gran became responsible for the child from 05/05/08 and that a recoverable overpayment was made to mum from 26/05/08 (3 weeks after HMRC received gran’s competing claim), and that gran was therefore entitled to CB from that date.

Two questions for learned colleagues. I believe that a determination on who has responsibility for a child is not an appealable decision. HMRC have not raised this. Am I right in thinking that while this may be a non-appealable determination, a decision which it gives rise to about whether or not to pay CB is an appealable decision? Secondly, in order to succeed my argument needs the appeal tribunal to make a determination that a recoverable overpayment has been made to mum. Can they do that without giving her the opportunity to submit evidence or attend the hearing?

Many thanks, Brian

You are right in thinking that the decision by HMRC who to pay ChB to where there are competing claim is not an appealable decision. However deciding when the claim was made is.

Have HMRC ever actually told you why they have applied the 56 day rule rather than the 3 week rule?

Mind you, the three week rule is not exactly 3 weeks. The principle in Sch 10 of the SSCBA is that the existing award takes priority, but not "where the week to which the claim relates is later than the third week following that in which the claim is made". So it does not apply IN the third week following the week of claim, only AFTER that.

Week is not defined in the schedule so must carry the normal Ch B meaning of "a period of 7 days beginning with a Monday" (s 147 SSCBA).

No, you work it out.

In their submission HMRC refer to SSCBA 1992 s143(2) and state that "When a person and child or QYP stop living together, they can be treated as living together until the absence exceeds 56 days in any 16 week period. This means that (mum) can be treated as having (child) living with her up to and including 25/06/08."

HMRC give the impression they are quoting directly from S143(2) but his is not the case. The section does not refer to "stopping living together", but refers to "being absent from one another". To me this implies a temporary absence. If it applied when a child moves permanently from one responsible adult to another, when would the 3 week rules ever come into play?

Hello Brian - have you had your hearing yet? I have more than one appeal at the moment on the same issue and I was quite confident once but having looked at the argument again I have lost confidence

CF/3348/2002 is authority for section 143(2) not being restricted to temporary absence

Section 143(2) treats child as living with previous claimant for 56 days - this means that child is living with both claimants over this period - new claimant would then lose out under priority rules - I previously thought that new claimant might qualify as child actually living with them but only deemed to be living with previous claimant - now, I am not so sure

When I looked into it before I considered that it is an appealable decision - not appealable if it falls to Sec of State to decide under para 5 Sch. 10 but OK if it is a priority decision under previous paras - certainly, there is no objection in the SoS submission

I don't think that the tribunal can consider a decision on the previous claimant's award. Such a decision would have to be made seperately giving the first claimant a right of appeal.

Tony

Hi Tony

Still waiting for a hearing date I'm afraid. The more I think about it the less confident I am of succeeding at tribunal. I had a long and pleasant conversation with a lady at the CBU about this situation in general, she volunteered the opinion that the regs were unfair to the second claimant, said there had been numerous appeals about it, various MPs had become involved, but nothing ever came of it. To me they appear to allow for unreasonable administrative delay at the CBU, and do not encourage prompt action on their part.

The delays, particularly bad when children moving household, are completely unreasonable and, given that the context is sometimes the need to facililtate the moving of children from seriously problematic home situations, it seems particularly perverse. Child Benefit Centre relies on local authorities meeting the short term funding needed. Somebody needs to do something about it!

The one thing that puzzles me about our cases is that there doesn't appear to be any caselaw on the point - at least I can't find any and submission does not refer to any. Maybe it's that obvious!!

I'll post if I can think of anything - please let me know if you do.

Tony

CF 2826 2007 is relevant (para 39)http://www.administrativeappeals.tribunals.gov.uk/aspx/view.aspx?id=2389