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Child Tax Credit decision - Zambrano

JPCHC
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Cardinal Hume Centre - Welfare Rights

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Joined: 24 November 2014

Client has just received a decision that she’s not entitled to Child Tax Credits from July 2012. She’d claimed before the Regulations were amended to exclude Zambrano carers later that year. As I can’t see that there was any transitional protection, I presume that they can do it and providing they don’t try and recover the overpayment there’s nothing really for me to do here?

As well as the drop in her income, she’s now really worried about her Housing Benefit which she continues to get even though she’s a Zambrano carer.

I’ve seen a couple of cases where Housing Benefit have automatically sent out a request for information when HMRC has notified them that there have been changes in the Tax Credits award. Thankfully she’s not got one yet but presumably this could happen?

Has anyone seen any cases like this before? I couldn’t believe it’s taken HMRC 3 years to pick up on but maybe I’m just being naive!

Any advice/comments gratefully received.

Thanks

Martin Williams
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Welfare rights advisor - CPAG, London

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1. So she would be entitled from July 2012 until when the amendment to the CTC R2R test came in to exclude Zambrano carer’s (November 2012).

2. I guess there would be some argument about the recoverability of any overpayment since Nov 2012- hasn’t client met her responsibilities all along? etc.

3. Always worth checking in these cases that what she has been given is a Zambrano derivative residence card and not some form of leave under Immigration Act 1971 (eg Humanitarian Protection etc). Can argue that the latter is not excluded residence right (even if given because really she is a Zambrano carer I think).

JPCHC
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Cardinal Hume Centre - Welfare Rights

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Thanks Martin - appreciate it. 

Unfortunately her leave is def. Zambrano as it was our Immigration team who assisted her to get her status Now they don’t generally advise people to apply for derivative status but hers is an old case.

She’s still getting paid WTC so presumably she’ll be able to get the childcare element if she is able to increase her hours (will be tricky as child is reception age).

As she provided all the information on her Zambrano status to HB at the date of claim (and it hasn’t changed) I can’t see that they could recover any OP from the client even if they did revise the decision?

Thanks,

Jenny

Martin Williams
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Welfare rights advisor - CPAG, London

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JPCHC - 03 November 2015 01:09 PM

As she provided all the information on her Zambrano status to HB at the date of claim (and it hasn’t changed) I can’t see that they could recover any OP from the client even if they did revise the decision?

Thanks,

Jenny

 

If you have advised her of the legislative change excluding Zambrano carers then from that moment onwards it would arguably be reasonable for her to realise that she was definitely being overpaid- and so the overpayment would be recoverable even if LA mistake causing o/p.

As far as I know there are no outstanding cases on lawfulness of excluding Zambrano carer’s (which might allow her to argue that she wasn’t certain that IT WAS an overpayment as opposed to whether IT MIGHT be an overpayment- see Griffiths case referred to in the Reg 100 Analysis in Findlay).

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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I think it’s a very slight risk - it would really take some chutzpah for the Council to argue “you ought to be better informed about the law on Zambrano carers than we are because you seem to be in touch with people who know more about it than we do”.  The CTC decision is probably the first concrete evidence that she should know there might be an issue with other benefits too.  If it was my case wearing my Council hat I would not consider any HB overpayment to be recoverable.