Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CF/2354/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Robin C A White

 

Decision: The decision of the tribunal of 28 November 2012 is erroneous in law. I set it aside. I remit the appeal for determination at an oral hearing by a differently constituted tribunal.

 

REASONS FOR DECISION

How I refer to the parties

1.     For ease of comprehension, I refer to the appellant as “the claimant” and to the respondent as “HMRC”.

Factual background

2.     The claimant is a United Kingdom national, who was born on 21 February 1969. She was in receipt of child benefit for her two children (born in 2001 and 2003). She is married. Her husband and the father of the children (also a United Kingdom national) was born on 23 February 1950. I will refer to him as “the husband”.

3.     The claimant and her children moved to Spain on 23 August 2006. Initially, there was some uncertainty about whether the move would be permanent, and the family retained a house in the United Kingdom. Evidence given to the First-tier Tribunal was that this house was sold in 2010.

4.     A matching exercise in May 2010 run by the Child Benefit Office with records held by the Child Trust Fund Office showed that the claimant had a Spanish address.

5.     The claimant completed a Form CH932 questionnaire at the end of July 2010. In it she stated that the family had moved to Spain on 23 August 2006, but had an intention to return to the United Kingdom. The claimant said that no claim for a child benefit in Spain had been made by her or the husband, nor was she in receipt of any National Insurance benefit.

6.     The claimant also responded to a number of questions about the husband. The claimant responded “Yes” to the following question:

Are they still working in the UK or were they working in the United Kingdom before they left.

7.     The claimant gave the name and address of a freight company and said that the husband worked there from 10 June 1972 to 15 August 2005. The husband is reported to have left the United Kingdom on 15 May 2006. He was said not to have worked in Spain. The question about his liability for Class 1 or Class 2 National Insurance contributions was left blank, indicating that there was no such liability.

8.     On 5 January 2011 a decision maker superseded the decision awarding child benefit on the grounds that the claimant and her children had left Great Britain to the effect that there was no entitlement to child benefit from 28 August 2006. Furthermore there was a recoverable overpayment of child benefit for the period from 28 August 2006 to 6 June 2010 in the sum of £6,186.65 because the claimant had failed to disclose that she and the children had left Great Britain.

9.     The claimant appealed against this decision on 19 January 2011 on the grounds that she continued to have an entitlement to child benefit because “according to your website I still qualify for child benefit if I reside in another EEA country, which I do and I pay NIC which I did until I was made redundant by my employees in January 2003. … . My husband and father to [my children] … continues to pay his NIC every month and has done since 1967.”

10.  In a letter dated 31 May 2011, the claimant said:

… my husband is retired … . Hopefully you will be able to confirm from his file that he has continued to pay his class 2 contributions since his retirement … in 2006, after 35 years service to the company.

11.   The decision was reconsidered on 10 June 2011, but was not changed.

12.  The claimant made two written submissions for the tribunal. The first is in the form of a letter dated 31 May 2012, and the second was handed in to the tribunal.

13.  The appeal came before the tribunal on 28 November 2012. The claimant does not appear to have been present, but she was represented by the husband. There is a helpful record of the proceedings. The outcome was that the decision of 5 January 2011 was confirmed. A statement of reasons was subsequently provided on 28 January 2013.

14.  The appeal now comes before me with the permission of a judge of the First-tier Tribunal.

The grounds of appeal

15.  The essence of the grounds of appeal is as follows:

(a) The claimant had notified HMRC of the change of address.

(b) The claimant had been misled by information on the HMRC website that she had a continuing entitlement to child benefit.

(c) The claimant had an entitlement to child benefit on the application of European Community law rules.

Did the tribunal err in law?

16.  I do not need to make heavy weather of this issue, despite the representative for HMRC arguing that I should dismiss this appeal.

17.  In relation to the application of European Community law provisions, the tribunal needed to decide which Member State was the competent State following the move to Spain. That demanded a much closer enquiry into what was meant by the repeated statement that the husband was continuing to pay Class 2 National Insurance contributions.

18.  The representative for HMRC argues before me (paragraph 65 of his submission) that the status of the husband is irrelevant since it was the claimant who was in receipt of child benefit. That is not correct in relation to the interpretation of Council Regulation 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, [1997] OJ L28/4, as amended (“Regulation 1408/71”).

19.  In the case of Slanina (Case C-363/08) [2009] ECR I-11111, following the case of Humer (C-255/99) [2002] ECR I-1205, the Court of Justice of the European Communities said:

31. It should be observed that family benefits by their nature cannot be regarded as payable to an individual in isolation from his or her family circumstances. It is therefore irrelevant that the person to whom the family benefits are to be awarded is Ms Slanina rather than the worker himself, namely, Ms Slanina’s ex-husband  … .

20.  Accordingly it was necessary for the purposes of considering the application of rules in Regulation 1408/71 to determine whether the husband was in employment or  self-employment either in the United Kingdom or in Spain following the move to Spain. It appears that absolutely no enquires relating to this have been undertaken, and this issue is not addressed by the tribunal.

21.  This constitutes an error of law and for this reason I set the tribunal’s decision aside. Since there are further factual matters which need to be determined, the appeal is sent back to the First-tier Tribunal for an oral hearing before a differently constituted tribunal.

22.  The remainder of this decision is my analysis of the issues raised in this appeal, together with such guidance as I am able to provide for the parties and the new tribunal on the matters which need to be considered.

The issues raised by this appeal

23.  This appeal raises the following issues:

(a) Have the claimant and her children been ordinarily resident in Spain since August 2006?

(b) Was the husband self-employed either before or after the move to Spain?

(c) If the husband was self-employed, was he self-employed in the United Kingdom or Spain following his move to Spain on 15 May 2006?

(d) Does Regulation 1408/71 alone apply to this claim, or must consideration also be given to Regulation 883/2004 on the coordination of social security systems, [2004] OJ L200/1, as amended, (“Regulation 883/2004”)?

(e) What consequences does the location of the self-employment have under Regulation 1408/71 for entitlement to child benefit?

(f) What is the position under Regulation 1408/71 if the husband was not self-employed in either the United Kingdom or Spain following his move to Spain?

(g) Is the claimant’s employment record relevant in determining whether she is “an employed or self-employed person” under Article 73 of Regulation 1408/71?

(h)  Has there been a recoverable overpayment of child benefit?

Have the claimant and her children been ordinarily resident in Spain since August 2006?

24.  The rules in national law on entitlement to child benefit are set out in the submission to me by the HMRC representative. They do not appear to be in dispute. Section 146 of the Social Security Contributions and Benefits Act 1992 provides both that no person shall be entitled to child benefit in any week unless she is in Great Britain in a week, and that no child benefit shall be payable in respect of a child or qualifying young person for a week unless he or she is in Great Britain in that week.

25.  There are provisions in regulation 24 of the Child Benefit (General) Regulations 2006 for certain absences from Great Britain to be disregarded.

26.  Plainly the claimant and her children were ordinarily resident in Spain following the move to Spain. Throughout the period in respect of which the overpayment is claimed to be recoverable, the claimant and her children were living in Spain: R v Barnet LBC ex parte Shah [1983] 2 AC 209 applied. None of the savings provisions in regulation 24 of the Child Benefit (General) Regulations 2006 assists the claimant.

27.  It follows that the claimant’s entitlement (if any) must flow from other provisions of law: in this case provisions of European Community law.

Was the husband self-employed either before or after the move to Spain?

28.  I would not criticise the tribunal for not grappling with this issue, though the frequent references to the husband paying Class 2 National Insurance contributions before and after the move to Spain might have suggested a need for further enquiry, notwithstanding the clear statements that the husband had retired in August 2005.

29.  The evidence in the documents I have is that the husband worked for a limited company. It seems that the husband was the owner of this company. There is reference in the material before me to a management buyout and the ownership of the company passing to the husband’s eldest son (page 58 of the documents I have).

30.  In the observations on the response to the appeal by HMRC, the claimant says:

My husband was still self employed as a consultant at the time the family moved to Spain. He continued as a consultant for four years after the company buyout.

31.  That is entirely new information which does not appear to have been put in evidence at any earlier stage in these proceedings.

32.  The business is described as a limited company. Prima facie the husband would have been an employee or office holder of the company liable for Class 1 National Insurance contributions. I do not therefore understand the reference to his having paid Class 2 National Insurance contributions in relation to this work.

33.  If it is accepted that the husband acted as a consultant following the management buyout, then it is quite possible that he was self-employed in that capacity, in which case there would be a potential liability for Class 2 National Insurance contributions.

34.  If the husband was neither an employee or office holder nor self-employed, then no issue would arise as to liability for Class 1 or Class 2 National Insurance contributions. If the husband wished to maintain a National Insurance contribution record for the purposes of entitlement to a retirement pension, then he could elect to pay Class 3 National Insurance contributions.

35.  The payment of Class 2 National Insurance contributions is not the sole test of whether a person is self-employed.  Whether a person is self-employed is a question of fact to be determined in the light of all the circumstances. In relation to European Community law, the Court of Justice of the European Communities defined the characteristics of self-employment as follows in Jany (Case C-268/99) [2001] ECR I-8615:

(a) There is no relationship of subordination concerning the choice of activity, working conditions and conditions of remuneration.

(b) The activity is engaged under the person’s own responsibility.

(c) The remuneration is paid in full directly to the person so engaged. 

36.  If the new tribunal accepts that the husband was self-employed following the management buyout, the tribunal will then need to determine whether the husband was self-employed in the United Kingdom or Spain following his move to Spain.

If the husband was self-employed, was he self-employed in the United Kingdom or Spain following his move to Spain on 15 May 2006?

37.  If the husband remained self-employed in the United Kingdom following his move to Spain, the United Kingdom would be the competent State under Article 13(2)(b) of Regulation 1408/71.

38.  If the husband moved his self-employment to Spain following his move to Spain, Spain would become the competent State under Article 13(2)(b) of Regulation 1408/71.

39.  If it is accepted that the husband was self-employed between 2005 and 2009, there must therefore be an enquiry about how he conducted this self-employment in order to determine whether the husband was self-employed in the United Kingdom or in Spain. This is a question of fact to be determined in the light of all the circumstances. These will include consideration of the nature of the work, the frequency of visits to the United Kingdom in connection with the work, and where meetings with clients (if any) took place. It would not be inconsistent with the self-employment being rooted in the United Kingdom that the husband had an office in his home in Spain where he communicated with clients by telephone, fax, email, or other electronic forms of communication. It would be relevant where the persons with whom he was communicating were located.

Does Regulation 1408/71 alone apply to this claim, or must consideration also be given to Regulation 883/2004 on the coordination of social security systems, [2004] OJ L200/1, as amended, (“Regulation 883/2004”)?

40.  The period under consideration in this appeal is from 28 August 2006 to 6 June 2010. Regulation 1408/71 was in force until 1 May 2010, when Regulation 883/2004 came into force as the successor regulation on the coordination of social security systems. The date of the decision is 29 May 2012, which postdates the entry into force of Regulation 883/2004.

41.  I am satisfied that it is Regulation 1408/71 which applies in this appeal. Almost all of the period in issue relates to the period when Regulation 1408/71 was in force. Furthermore, Article 87(1) of Regulation 883/2004 provides that no rights can be acquired under its provisions for any period before the date in which it entered into force.

42.  This view is also supported by recital (2) of Decision H1 of 12 June 2009 of the Administrative Commission for the Coordination of Social Security Systems, [2010] OJ C106/13, which reads:

… in principle claims submitted before the date of entry into force of [Regulation 883/2004] shall continue to be governed by the law which was applicable to them at the time they were submitted and the provisions of [Regulation 883/2004] shall apply only to claims opened after [its] entry into force.

43.  A brief review of certain provisions in Regulation 883/2004 confirms my view that Regulation 1408/71 alone governs the claimant’s circumstances. The new tribunal need not consider Regulation 883/2004 in determining this appeal.

 What consequences does the location of the self-employment have under Regulation 1408/71 for entitlement to child benefit?

44.  As noted above, if the husband remained self-employed in the United Kingdom following his move to Spain, the United Kingdom would be the competent State under Article 13(2)(b) of Regulation 1408/71. However, if the husband moved his self-employment to Spain following his move to Spain, Spain would become the competent State under Article 13(2)(b) of Regulation 1408/71.

45.  If the new tribunal decides that the husband remained self-employed in the United Kingdom following his move to Spain, then the United Kingdom would remain the competent state under Article 13(2)(b) of Regulation 1408/71, and Article 73 comes into play. This provides:

An employed or self-employed person subject to the legislation of a Member State shall be entitled, in respect of members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.

46.  The HMRC representative accepts that child benefit is a family benefit or family allowance for the purposes of Regulation 1408/71. There is plainly no doubt that the two children in respect of whom child benefit was payable in Great Britain are, in relation to United Kingdom legislation, members of the family of the claimant under Article 73, having regard to the definition of “members of the family” in Article 1(f) of Regulation 1408/71.

47.  If, however, the new tribunal finds that the husband moved his self-employment to Spain when he moved to Spain, then the effect of Article 13(2)(b) would be that Spain would become the competent State for social security purposes. The claimant would need to show some alternative basis on which the United Kingdom continued to be the competent State and her entitlement to child benefit continued.

48.  If the situation posited in the preceding paragraph arises, then there would be a potential entitlement to family benefits or family allowances in Spain.

49.  It is worth stressing at this point that the husband’s self-employment would only assist for the period during which he was self-employed. The evidence before me is that this self-employment ended in 2009, whereas the overpayment period extends to 6 June 2010. Even if the self-employment means there was an entitlement to child benefit to a date in 2009, it does not assist for the period after the self-employment ended.

50.  If the tribunal concludes that the United Kingdom remained the competent State by reason of the self-employment of the husband, Article 76 of Regulation 1408/71 may well come into play. Article 76 reads:

1. Where, during the same period, for the same family member and by reason of carrying on an occupation, family benefits are provided for by the legislation of the Member State in whose territory the members of the family are residing, entitlement to the family benefits due in accordance with the legislation of another Member State, if appropriate under Article 73 or 74, shall be suspended up to the amount provided for in the legislation of the first Member State.

2. If an application for benefits is not made in the Member State in whose territory the members of the family are residing, the competent institutions of the other Member State may apply the provisions of paragraph 1 as if benefits were granted in the first Member State.

51.  Decision No 147 of 10 October 1990 of the Administrative Commission of the European Communities on Social Security for Migrant Workers concerning the application of Article 76 of Regulation (EEC) No 1408/71, [1990] OJ L235/21, provides for a procedure under which the competent institution can determine whether the suspension provisions of Article 76 apply. It involves communications between the social security institutions of the two countries concerned using Form E411.

What is the position under Regulation 1408/71 if the husband was not self-employed in either the United Kingdom or Spain following his move to Spain?

52.  If the husband was not self-employed (and for the period after his self-employment ended), then determination of the legislation applicable would arise under Article 13(2)(f) of Regulation 1408/71, which provides:

2. Subject to Articles 14 to 17:

…

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.

53.  I mention in passing Article 15 of Regulation 1408/71 since this makes it clear that the determination of the applicable law does not flow from the payment of voluntary contributions unless “there exists in the Member State only a voluntary scheme of insurance”. That is not the case here.

54.  I need to consider whether the entries in Annex VI would assist the claimant if Article 13(2)(f) applied to her or the husband. I do not think they do.

55.  Point 19 of Annex VI does not assist. Point 19(a) states the primary rule under which United Kingdom legislation ceases to apply on the day on which residence is transferred to another Member State. Point 19(b) refers to the day of cessation of self-employment. Point 19(c) refers to the last day of any period of receipt of United Kingdom sickness or maternity benefits, or unemployment benefit. There is nothing in the file I have to suggest that any such benefits were in payment.

56.  Point 20 requires a little more analysis. It provides:

20.  The fact that a person has become subject to the legislation of another Member State in accordance with Article 13(2)(f) of the Regulation, Article 10b of the Implementing Regulation and point 19 above, shall not prevent:

(a)   the application to him by the United Kingdom as the competent State of the provisions relating to employed and self-employed persons of Title III, Chapter 1 and 2, Section 1 or Article 40(2) of the Regulation if he remains an employed or self-employed person for those purposes and was last so insured under the legislation of the United Kingdom;

(b)   his treatment as an employed or self-employed person for the purposes of Chapter 7 and 8 of Title III of the Regulation or Article 10 or 10a of the Implementing Regulation, provided United Kingdom benefit under Chapter 1 of Title III is payable to him in accordance with paragraph (a).

57.  Point 20(b) does encompass family benefits, which are provided for in Chapter 7 of Title III of Regulation 1408/71. However, Point 20(b) only assists a person to whom a United Kingdom benefit under Chapter 1 of Title III is payable in accordance with Point 20(a). Benefits under Chapter 1 of Title III are sickness and maternity benefits. There is nothing in the file I have to suggest that any such benefits were in payment.

58.  I did consider whether this decision should be delayed pending the outcome of the Secretary of State’s appeal to the Supreme Court against the decision of the Court of Appeal in Secretary of State for Work and Pensions v Tolley (deceased), [2013] EWCA Civ 1471. I refer to this case as “the Tolley case”. However, I have concluded that this is not necessary at this stage. The Tolley case is concerned with the export of the care component of a disability living allowance, which constitutes a sickness benefit under the scheme in Regulation 1408/71 (see analysis of the Upper Tribunal in the Tolley case at [2012] UKUT 282 (AAC). The circumstances of this case are very different, and may not involve any necessary reconsideration of the decision in HMRC v Ruas [2010] EWCA Civ 291 (“the Ruas case”), which is in issue in the appeal in the Tolley case.

59.  If any issues relating to the Secretary of State’s appeal in the Tolley case do turn out to be significant in the determination of this appeal when it is reheard, then the First-tier Tribunal may choose to stay its decision pending the judgment of the Supreme Court.

Is the claimant’s employment record relevant in determining whether she is “an employed or self-employed person” under Article 73 of Regulation 1408/71?

60.  The submission by HMRC to me refers to the Ruas case, although the analysis of that case appears at odds with the interpretation applied by a three-judge panel in Secretary of State for Work and Pensions v LT [2012] UKUT 282 (AAC). That decision has been upheld by the Court of Appeal as Secretary of State for Work and Pensions v Tolley (deceased), [2013] EWCA Civ 1471, but, as noted above, is currently under consideration by the Supreme Court.

61.  In the Ruas case, the claimant was in the United Kingdom and was seeking child benefit for children in Portugal. He had worked but was not currently working in the United Kingdom. Child benefit was in payment for children resident in the United Kingdom. There was therefore no issue as to which was the competent State. The issue was whether the claimant was “an employed or self-employed person” within the terms of Article 73 of Regulation 1408/71 on the application of the principles established in that case.

62.  In this case, there is some doubt as to which is the competent State and that issue must be determined first. If the United Kingdom is the competent State, then the conclusions in the Ruas case would apply and be in issue at that stage of the enquiry. The husband in this appeal would an “employed or self employed person” under Article 73 applying the principles from the Ruas case, but would actually be in self-employment at the material time rather than having been in employment or self-employment in the past and reliant on that past period of work to sustain the continuing entitlement to child benefit.

63.  The question of the proper interpretation of the term “employed or self-employed person” in a number of provisions of Regulation 1408/71 is an issue which arises in the Tolley case, which involves a challenge to the correctness of the Court of Appeal’s conclusions in the Ruas case. However, it only comes into play in this appeal if the new tribunal finds that the husband has not been self-employed following the move to Spain. It might, however, be relevant to the tail end period of the overpayment even if the husband is found to have been self-employed.

64.  I have ultimately concluded that there is sufficient further fact-finding that is required in connection with this appeal that it is not inappropriate to remit the appeal now for a rehearing to enable that fact-finding to take place without further delays. If the First-tier Tribunal finds that the issues in the Tolley case are determinative of issues arising in this appeal, it is, of course, open to them to stay the case pending the decision of the Supreme Court.

 Has there been a recoverable overpayment of child benefit?

65.  Given the complexity of the European Community law issues which arise in this case, it is important that the new tribunal does not lose sight of the fact that the decision under appeal is an overpayment decision. I do not need to subject this aspect of the appeal to the same rather complex analysis as that offered in respect of the application of provisions of Regulation 1408/71, but there are one or two points which might be worth emphasising.

66.  The claimant says she told HMRC of the change of address, but admits that she did not tell the Child Benefit Office. Although the Child Benefit Office is part of HMRC, it is not enough to tell one part of HMRC and rely on them to communicate the information to other parts of HMRC: see Hinchy v Secretary of State for Work and Pensions [2005] UKHL 16, reported as R(IS) 7/05.

67.  The claimant appears to accept that payment advice notices may have been received and may have been sent to her United Kingdom address, but admits that these were never read. The tribunal will need to make findings of fact about what was sent to the claimant. The standard payment advice notices contain a clear direction to report certain changes to the Child Benefit Office including departure from the United Kingdom, either temporarily or permanently, of the claimant or the children in respect of whom child benefit is paid.

68.  Regulation 32(1A) of The Social Security (Claims and Payments) Regulations 1987, as amended, contains an unqualified duty to disclose information which a claimant is directed to report. No question arises in such circumstances of whether it was reasonable to expect disclosure to be made: B v Secretary of State for Work and Pensions [2005] EWCA Civ 929.

69.  It follows that, if the new tribunal decides that the payment advice notices were received but not read, there is no merit in the claimant’s arguments that she was misled by information on the website. She has failed to report changes which she was directed to report.

70.  If the tribunal finds that there is an entitlement to child benefit for part of the period for which the overpayment is currently said to apply, they must specify the dates in respect of which any remaining overpayment applies, and must address the question of the recalculation of the overpayment.

Directions and guidance for the new tribunal

71.  There is plainly further evidence to be adduced by both HMRC and the claimant in order to enable the new tribunal to make the findings of fact necessary for the proper determination of this appeal.

72.  Both parties are directed to submit further evidence and asked to consider making substitute or supplementary submissions. The parties are to have one month from receipt of this decision in which to do this.

Directions relating to facts addressed to the claimant

73.  The claimant must provide further information about the husband’s role in the business between 1972 and 2005. From what I have been told, it seems likely that he was a director of a limited company which he owned.

74.  The claimant must provide full details about the nature of the consultancy which has been disclosed at a late stage of these proceedings and is said to have operated for four years from 15 August 2005. This must include full details of how that consultancy was operated following the husband’s move to Spain.

75.  The claimant must provide as much detail as she can about the payment of National Insurance contributions by her husband during the period of the consultancy. How were Class 2 National Insurance contributions paid?

76.  If there are annual self assessment tax returns in relation to income from the consultancy filed with HMRC, copies of these must be provided, since these would show any liability for Class 2 or Class 4 National Insurance contributions. If there are no such returns, an explanation for this should be provided.

77.  The new tribunal might find it helpful to know (as context only) whether, on cessation of payment of United Kingdom child benefit, any claims for equivalent benefits in Spain have been made and their outcome.

Directions relating to facts addressed to HMRC

78.  HMRC is well placed to obtain information about the husband’s record of National Insurance contributions and must present to the new tribunal the husband’s National Insurance Contributions record for the tax years 2004-2005 to 2010-2011. This should resolve doubts about the nature of the contributions which are said to have been made.

79.  HMRC should provide such evidence as they have (almost certainly from computer records) of when child benefit uprating letters accompanied by payment advice notices were sent to the claimant. HMRC should state the address to which those letters and enclosures were sent.

80.  The new tribunal will undoubtedly be assisted if a representative of HMRC attends. I hope this can be accommodated.

Directions for the new tribunal

81.  The new tribunal should note the issues I have identified as arising in this appeal and should follow the methodology suggested by my analysis of those issues in so far as it is helpful to them.

82.  The tribunal should not lose sight of the nature of the decision under appeal, which is that there has been an overpayment of child benefit which is recoverable from the claimant.

Advice and warnings for the claimant

83.  The claimant must realise that the new tribunal is only concerned with her appeal against the decision dated 5 January 2011 and will be looking at circumstances as at that date. Matters arising after that date can only be taken into account in so far as they are relevant to matters on or before that date. This arises because section 12(8)(b) of the Social Security Act 1998 prohibits a tribunal from considering any change of circumstances arising after the date of the decision under appeal.

84.  The claimant must not assume that she will necessarily win her appeal when it is reheard. The outcome turns on matters which require further enquiry, and further findings of fact by the tribunal. Everything is now once again in the hands of the First-tier Tribunal. She might win or she might lose.

 

 

 

Signed on the original Robin C A White

on 11 December 2014 Judge of the Upper Tribunal