CF/5472/2014

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the Social Entitlement Chamber of the First-tier Tribunal sitting in Oxford and made on 5th August 2014 (reference SC048/14/00119). I substitute my own decision. This is that the claimant is entitled to child benefit as from 2nd September 2013 in respect of her son born on 3rd May 1995.

2. I refer to HMRC questions relating to the implementation of the effects of this decision. 
 
3. The parties are agreed that the decision of the tribunal was made in error of law and that the above award should be made. It would not usually be necessary to go into any great detail in a decision based on agreement between the parties but I give some detail because of the importance of the issue. I am grateful for the submissions of 17th July 2015 made by Galina Ward of counsel on behalf of HMRC (pages 218 to 225 of the Upper Tribunal file).

Background

4. The claimant’s son, to whom I shall refer as “Andrew” (not his actual name), was born on 3rd May 1995. The claimant was awarded and received child benefit in respect of Andrew in the usual way. The First-tier Tribunal found that at the age of about 11 Andrew was diagnosed with “high functioning autism/Asperger’s syndrome”. It found (paragraphs 5 and 21 of the First-tier Tribunal statement of reasons):

“There had been unusual features of his behaviour from early childhood. He had first attended a mainstream school until about 2008, when he was 13. He had been to several schools. He was clearly regressing in his grades and barely coped at the level of primary education. He was seen by his teachers as defiant. His main problem was with concentration and motivation. He had no desire to please. His motivation was all internal … He was bullied and anxious at the mainstream school”.

5. A statement of special educational needs was made and Andrew eventually attended a special school until he was 18, but his education was a “continual battle” and the school principal said that Andrew was one of the most difficult children at the school.
6. After Andrew turned 18 (3rd May 2013) the local authority agreed to cover the cost of a home learning programme from 2nd September 2013 for Andrew to work towards a trade qualification in information technology over two or three years. This programme consists of Andrew working at home with an information technology tutor for five hours a day, five days a week, for 39 weeks a year. On 16th October 2013 HMRC decided that this was not approved education for the purposes of entitlement to child benefit and that as from 2nd September 2013 the claimant was no longer entitled to child benefit in respect of Andrew.

7. On 8th January 2014 the claimant appealed to the First-tier Tribunal against the decision of HMRC to stop her entitlement to child benefit. The First-tier Tribunal considered the matter on 5th August 2014 and confirmed the decision of HMRC. On 7th November 2014 the First-tier Tribunal judge refused the claimant permission to appeal to the First-tier Tribunal. She now appeals by my permission given on 4th March 2015. Final submissions from HMRC were received on 20th July 2015 and the final comment from the claimant in reply was received on 6th August 2015. It is unfortunate that it is almost two years since the original decision by HMRC that is under appeal was made.

The Child Benefit Rules

8. Entitlement to child benefit arises under the provisions of section 141 of the Social Security Contributions and Benefits Act 1992 and is payable in respect of a “child” under the age of 16 (section 142(1) or a “qualifying young person” who has reached 16 and who satisfies prescribed conditions (section 142(2)).

9. In so far as is relevant, regulation 3 of the Child Benefit (General) Regulations 2006 provides as follows:

3(1) This regulation applies in the case of a person who has not attained the age of 20.

(2) The condition is that the person – 

(a) is undertaking a course of full-time education, which is not advanced education and which is not provided by virtue of his employment or any office held by him – 
	(i) which is provided at a school or college; or
(ii) which is provided elsewhere but is approved by the Commissioners [of Revenue and Customs].
	…

(3) A person is not a qualifying young person by virtue of paragraph 2(a)(ii) unless he was receiving the education referred to in that paragraph as a child.
10. Andrew was undertaking the study at home, which is a place other than a school or college, but did not begin that home study until he was 18. It had not started while he was a child under 16 and therefore could not come within the provisions of regulation 3(2)(a)(ii) because of the exclusion specified in regulation 3(3). Neither the Commissioners nor the First-tier Tribunal (nor the Upper Tribunal) had a discretion to decide otherwise. 

11. The First-tier Tribunal relied on the fact that there is no right of appeal against the discretionary decision of the Commissioners as to whether to give their approval under regulation 3(2)(a)(ii) (although presumably their decision can be challenged by way of judicial review)) and seems to have overlooked the effect of regulation 3(3) which is that, on the facts of this case, the Commissioners had no such discretion.
Human Rights Law

12. The parties are effectively agreed that the application of regulation 3(3) to Andrew’s position in the present case amounted to discrimination against the claimant contrary to the Human Rights Act 1998 and article 1 protocol 1 read with article 14 of the European Convention on Human Rights (“the Convention”), in that there was a relevant difference in treatment which cannot be justified and is not proportionate.

13. The main relevant provisions of the Human Rights Act 1998 are as follows (references are to section numbers):

3(1) So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights. 

6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

6(2) Subsection (1) does not apply to an act [of a public authority] if-
(a)	as a result of one or more provisions of primary legislation the authority could not have acted differently; or
(b)	in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions. 

6(3) In this section "public authority" includes –
(a)	a court or tribunal

7(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may-
	(a) …
(b)	rely on the Convention right or rights concerned in any legal proceedings

The Relevant Convention Provisions

14. For the purposes of the present appeal, the main relevant provisions of the Convention are as follows.

Article 14:

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status

Article 1 of Protocol 1:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

I have expanded on these matters in VL v Secretary of State for Work and Pensions (IS) [2011] UKUT 227 (AAC), which is in the file at pages 193 to 209.

HMRC’s Propositions

15. In her written submissions Ms Ward puts forward a number of propositions which I summarise here and with which I agree (subject to the items in square brackets that I have added):

(a) regulation 3(3) is secondary legislation and there is nothing in section 142 of the 1992 Act [or any other primary legislation] that requires regulation 3(3) to be framed in the way that it is

(b) if the application of regulation 3(3) results in a breach of Convention rights, its application is unlawful

(c) it is now well established that potential entitlement to a social welfare benefit such as child benefit brings a claim within the ambit of article 1 of protocol 1 (Stec v UK 41 EHRR SE295 and R(RJM) v Secretary of State for Work and Pensions [2008] UKHL 63) and HMRC no longer seeks to argue the contrary

(d) if regulation 3(3) results in less favourable treatment due to “other status” within the meaning of article 14, that difference in treatment must be justified in order not to constitute unlawful discrimination.

(e) if Andrew has an “other status” then less favourable treatment of the claimant on the grounds that she is a parent of a child with that status would equally require justification

(f) there is no evidence [put forward in this case] that a disproportionate number of young people who are disabled and who receive home education [or education other than at a school or college] only started to receive it after the age of 16

(g) however, discrimination between disabled people with different needs may engage article 14 just as much as discrimination between a disabled person and a person who is not disabled (Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47)

(h) Andrew is a young person whose special educational needs have developed in such a way that he required a home education programme commencing after his 16th birthday. Had his needs been different so that he had required such a programme to commence before his 16th birthday, or had not required such a programme at all, the claimant would have been entitled to child benefit for him

(i) it is the claimant’s status as the parent of a child with special educational needs whose needs require a home education programme commencing after the age of 16 that has resulted in the loss of entitlement to child benefit. Accordingly the relevant difference in treatment requires justification if it is not to be unlawful discrimination

(j) in effect, where there is a statement of special educational needs and a programme of education has been specifically assessed by the local authority as being suitable for the young person’s special needs, there is no difference between those on either side of the line drawn by regulation 3(3) and the difference in treatment in the present case cannot be justified

(k) therefore regulation 3(3) should be disapplied in the present case. 

Conclusions

16. The above analysis explains my decision in paragraph 1 above.  Ms Ward defends the general provision in regulation 3(3) on the basis that usually local authorities monitor the education received by those who are not at school, but only until the child ceases to be of compulsory school age. This justifies the difference in treatment provided by regulation 3(3). I note this argument but I express no opinion on it as the matter does not require to be decided in the present case. I assume that consideration will be given to amending the regulations so that other people in the position of this claimant do not have to resort to the appeal process to secure their entitlement. 

17. However, for the above reasons this appeal by the claimant succeeds.

H. Levenson
Judge of the Upper Tribunal 
3rd September 2015