His Majesty's Revenue and Customs v 1) AV 2) IV: [2025] UKUT 286 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Markus on 19 August 2025.
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Judicial Summary
This appeal concerned priority of entitlement to child benefit where there were claims by both parents. The Upper Tribunal has allowed the appeal because a) the First-tier Tribunal failed to join the Second Respondent to the proceedings resulting in a breach of natural justice; and b) the First-tier Tribunal failed to apply the correct legal test for priority of entitlement to child benefit under section 144 and Schedule 10 of the Social Security Contributions and Benefits Act 1992.
The Upper Tribunal has remade the decision. As to where the children lived for the purpose of section 143(1)(a) of the Social Security Contributions and Benefits Act 1992, the existence of a court order for shared care of the children was relevant but not determinative. However, in all the circumstances of this case, the children lived with both parents. By virtue of section 144, entitlement to was to be determined in accordance with Schedule 10 of the Act. None of paragraphs 2-4 of Schedule 10 applied and so, unless the parents make a joint election, HMRC is to decide which of them is entitled to child benefit. The Upper Tribunal has no jurisdiction to make a determination under paragraph 5.