AS v Commissioners for Her Majesty's Revenue and Customs (TC): [2017] UKUT 361 (AAC) : [2018] AACR 14

Upper Tribunal Administrative Appeals Chamber decision by Judge Jacobs on 5 September 2017.

From:
HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
Published
21 September 2017
Last updated
24 December 2019 — See all updates
Categories:
Tax credits and family credit
Sub-categories:
Tribunal procedure and practice - record of proceedings
Judges:
Jacobs, E
Decision date:
5 September 2017

Read the full decision in [2018] AACR 14ws

Judicial Summary

Reported as [2018] AACR 14

European Union law – application of Article 7 of Regulation (EU) 492/2011 ¬– employment and equality of treatment

Working tax credit – childcare element

In deciding the claimant’s entitlement to working tax credit Her Majesty’s Revenue and Customs refused the inclusion of a child care element pursuant to section 12 of the Tax Credits Act and regulation 13 of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (SI 2002/2005). One condition for the inclusion of that element in an award was that the claimant’s partner must be incapacitated. Regulation 13(4) to (12) set out the circumstances in which, by an award of specified incapacity benefits, a person may be said to be incapacitated under the Regulations. The claimant relied on the fact that her partner was in receipt of a Dutch invalidity benefit and this raised the question inter alia of (1) whether regulation 13(4) to (12) was an exhaustive list of qualifying benefits; (2) whether the Dutch benefit should be treated as sufficient evidence of incapacity; (3) whether the refusal of the childcare element amounted to deprivation of a social advantage contrary to Article 7(2) of Regulation (EU) 492/201; (4) whether the claimant could rely on Article 5 of Regulation 883/2004 to say that the Dutch benefit awarded was within the material scope of regulation 13 and (5) whether regulation 13 affected the general freedom of workers so as to discourage them from coming to the United Kingdom.

Held, allowing the appeal, that:

  1. regulation 13(4) to (12) was exhaustive of the incapacity conditions to be satisfied and must be read in the context of the regulations as a whole (paragraph 10);

  2. regulation 13 could not be read on domestic interpretation principles to include the Dutch incapacity benefit so as to treat it as sufficient evidence of incapacity which could only succeed on the grounds of EU law (paragraph 11);

  3. regulation 13 was intrinsically liable to affect migrant workers more than national workers and there was a risk that it placed them at a particular disadvantage compared with national workers. The appellant was being deprived of a social advantage: MR v Commissioners for Her Majesty’s Revenue and Customs [2011] UKUT 40 (AAC) applied (paragraphs 18 to 23);

  4. the claimant could not rely on Article 5 of Regulation 883/2004 because tax credit legislation lay outside the overall scope of Regulation 883/2004 (paragraphs 12 to 15);

  5. there was no scope for applying the general principle of freedom of movement independently of the issue of social advantage (paragraph 24)

  6. regulation 13 must be read so as not to deprive the claimant of the social advantage of basing a claim for the child care element of working tax credit on her husband’s incapacity as evidenced by his award of Dutch invalidity benefit (paragraph 28).

Updates to this page

Published 21 September 2017
Last updated 24 December 2019 + show all updates

  1. Decision selected for reporting as [2018] AACR 14

  2. First published.

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