I have been informed by Inland Rev (CAB tel line), that you can not make a claim for WTC whilst in recipt of SSP, even if you fall into the 93 days backdate rule, ie was working during this period. as you are not accepted as in remunerative work. I completly disagree with this, any ideas greatly accepted

As far as I can tell, this advice is correct. The Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002. Reg 4(1)(a) state in no uncertain terms that the claimant must be "working at the date of the claim". Had the claimant made the WTC claim before he actually ceased work I assume he could have relied on Reg 6(1), even if SSP was backdated under the inpracticality route to before the WTC claim was submitted. However, I think the claimant falls at the first hurdle under the 'remunerative work test' in this case.

Er, Regulation 6 says:

6. Periods of illness or incapacity for work

(1) This regulation applies for any period during which a person-
(a) is paid statutory sick pay,
(b) is paid short-term incapacity benefit at the lower rate under sections 30A to 30E of the Contributions and Benefits Act,
(c) is paid income support on the grounds of incapacity for work under paragraphs 7 and 14 of Schedule 1B to the Income Support (General) Regulations 1987, or
(d) receives national insurance credits on the grounds of incapacity for work under regulation 8B of the Social Security (Credits) Regulations 1975.

(2) For the purposes of the conditions in regulation 4(1), the person is treated as being engaged in qualifying remunerative work during the period.
This is subject to paragraphs (3) and (4).

(3) The person must have been engaged in qualifying remunerative work immediately before the beginning of the period.

(4) If the person is paid income support as specified in paragraph (1)(c) or receives national insurance credits as specified in paragraph (1)(d) he is treated as being engaged in qualifying remunerative work for a period of 28 weeks only, beginning with the day on which he is first paid income support or receives national insurance credits (as the case may be).

(5) A person who is self-employed is treated as engaged in qualifying remunerative work for the requisite number of hours during any period for which paragraph (1) would have applied in his case but for the fact that the work he performed in the week immediately before the period began, although done for payment or in expectation of payment, was not performed under a contract of Service or apprenticeship.


Why doesn't 6.2 apply?

Section 10 of the Tax Credits Act says that entitlement depends on being in qualifying remuneratieve work and that regulations may make provision as to what counts.

It's true that Reg 4(1) of the EMR Regs says that someone must be working at the date of the claim. However, Reg 6(2) says that, 'For the purposes of the conditions in Reg 4(1), the person is treated as engaged in qualifying remunerative work during the period'. The period includes any period during which a person is paid statutory sick pay - Reg 6(1)

Therefore, unless the reference to working in Reg 4(1) is to be taken as doing actual work, and not simply being in qualifying remunerative work, I would have thought a claim could be made during the period of claiming SSP. 'Working' is not defined so it is certainly arguable that it includes any period when in qualifying remunerative work and that the use of the word represents no more than sloppy drafting.

I don't know if this helps, but here are two clips from the TC Technical Manual, which seems to support the position that claims can be started whilst sick...

From TCTMO2301

'To be entitled to WTC a person, or either or both persons in the case of a joint claim, must be in qualifying remunerative work TCTM02400.'

From TCTM02402

'A person who is in receipt of Statutory Sick Pay, (or would have qualified but for self employment), short-term incapacity benefit at the lower rate, Income Support on the grounds of incapacity for work or National Insurance credits on the grounds of incapacity for work is treated as being in qualifying remunerative work, provided that person normally worked at least 16 or 30 hours a week (whichever applied) immediately before beginning to receive any one of these benefits.'

I think Gareth and Derbyshire are right.

Steve

Yeah, after some rumination I agree with Derbyshire. There's a difference between actually working and being treated as if in qualifying remunerative work. As the term 'working' is not defined, the ambiguity exists, but considering government policy it is unlikely their intention was to preclude potential claimants from claiming WTC. Thinking about it, it would be absurd if you could submit the claim one day before a period of sickness and continue to be paid, but submit it one day into a period of sickness and lose out on entitlement for the whole of that period. The literalist in me says no, but common sense says yes! But then again, what does common sense have to do with the benefits system?!

Remembering that we are on planet tax credits, is there actually a difference between working and being treated as if in qualifying work etc? The conclusion of this thread is surely that there is no difference!

Sorry but i dissent from the views above because of 6.3:

3) The person must have been engaged in qualifying remunerative work immediately before the beginning of the period.

The regs that Gareth quoted allow someone already qualified for WTC to remain on WTC if they are in a period of sickness and iro SSP, amongst other things. However, 6.3 is very clear that the person concerned must have been in qualifying remunerative work before the SSP reciept begins. And receiving SSP does not count for those purposes.

I agree with Paul. Reg 6(3) is crucial and must be read with 6(2). 6(2) says “…is treated as engaged in qualifying remunerative work…”. while 6(3) says “ …must have been engaged in qualifying remunerative work…”. This is standard drafting. 6(2) is a deeming provision while 6(3) stipulates a factual position, i.e. a person is in actual employment.

Similarly with 4(l). 4(l)(a) when read together with 4(l)(b) makes sense and is not merely sloppy drafting. The phrase “is working” because it is not defined in the regs must be given its everyday meaning which most people would take to mean as “in employment”. It states a factual position. When asked if s/he works a person says yes even if s/he is not actually working at that time, i.e. because s/he has just finished for the day. This makes perfect sense when read in conjunction with 4(l)(b) which says “has an offer of work which he has accepted…”.

In other words a person is actually working or about to be.

I read it as meaning that somebody who is *in* employment but falls ill can, at that point, claim credits.

Hi Gareth

After studying the regs again I was struggling to disagree with your interpretation.

But after further thoughtI think the key is the wording of 6(2) which states “(f)or the purposes of the conditions in regulation 4(l), the person is treated as being engaged in qualifying remunerative work during the period…”

The key phrase is “for the purposes of the conditions in regulation 4(l)”. In my view all this allows is for a person to continue to satisfy those conditions even when s/he does not in fact do so, because s/he is off work sick.

If the 6(2) was wide enough to allow a person to first claim while off sick then it would have read “for the purposes of regulation 4(l)”.

The 2 regs as a whole could have been better drafted and its certainly worth arguing that your interpretation is the correct one.

Regards
Paul

I agree with you but I was interested to note that my CPAG Handbook says that:
"If you normally work at least 16 (30) hour a week, but are off sick or on maternity, paternity or adoption leave you might be able to claim WTC."

Inference being you may claim WTC when you are already off work sick.

My Disability Alliance Handbook, however says that:

"Provided you have been accepted as being in qualifying remunerative work you will usually continue to be treated as being in work for WTC purposes"

Inference, you can continue to qualify for WTC while off work sick.

I think it is the latter which is correct but I'd love to be wrong

Yeah, after reading Richard's post I did have a slight doubt but was fortified when I read that entry in the Disability Rights Handbook.

Fri 25-Jan-08 09:58 PM by Gareth Morgan

My reading of the DRH quote above (and I suspect it was written by a colleague here but I haven't checked with him) is that if you "continue to be treated as being in work for WTC purposes" then that would include being able to claim.

Hypothetically, if a Judge had to interpret this would they necessarily use the literal rule to decipher the wording of the legislation? They would want to avoid any absurdities like those mentioned above. Would they not give a wider definition to the term 'is working' to avoid these? Or would they look at the intentions of the legislature to give a more specific meaning to the words?

I don't see the problem here. The Regs are quite clear and alow a WTC claim to start during a period on SSP (or IB, or IS, or incapacity credits).

I suggest the crucial words are 'the period' throughout Reg.6. 6(1) makes it clear that they refer to 'any period' during which the person receives a defined incapacity benefit. All 6(3) does is make it clear that the person must have been in qualifying work, as defined in reg.4, before the period of incapacity began. Doesn't require there to have been an earlier WTC claim because that isn't part of the Reg.4 definition.

Anyway I just got WTC for a client who's off sick from self employment and in receipt of incapacity credits only. WTC claim began a couple of months into the period of incapacity and went through no problem. He can't get anything else because of R2R problems so I don't want to hear that the award was incorrect!

Richard Atkinson

4(1) - Subject to the qualification in paragraph (2), a person shall be treated as engaged in qualifying remunerative work if, and only if, he satisfies all of the following conditions.

First condition

The person – (a) is working at the date of the claim and....

and

6(3) - The person must have been engaged in qualifying remunerative work immediately before the beginning of the period.

I can't see how the condition in 6(3), regards being engaged in "qualifying remunerative work immediately before the period of illness" can be satisfied in the context of 4(1) - because 4(1) states that to be treated as engaged in QRW, the claimant must, at the date of claim, be working. And if you're off work sick and claiming SSP or NI credits, then you're not working, in my opinion.

Having said all that, there is certainly an arguable counterpoint in Richard's post and if he's managed to get a successful WTC claim in similar circumstances, this sounds well worth pursuing to test the interpretation and clarify the situation. They hardly have any appeals at HMRC anyway so stick one in and let us know how you get on.

But 6.2 is drafted so that all those conditions in 4(1) are met:

"6(2) For the purposes of the conditions in regulation 4(1), the person is treated as being engaged in qualifying remunerative work during the period."

Hence, you are at this time "treated as being engaged in qualifying remunerative work".

At the same time you are in "a period of illness or incapacity for work" and subject to 6(3), which tests whether, before you became ill, were you working.

If the regulation isn't intended to put a person in the same position when becoming ill in employment as he would have been if still well, what's it for? If it does put him in the same position then he can claim as well as continue to receive.

on a slight tangent I have been looking at reg 5 in the tax credits technical manual, which atates that:

Where a person did not qualify for WTC prior to the birth or placement for adoption, for whatever reason, they will be entitled to WTC from the date the child is born or placed for adoption NOT from the date their leave commences.

It seems likely that claimants will already be on statutory maternity/adoption leave when this happens. So they only commence their entitlement after their temporary absence begins.

I appreciate that this if different from sickness but won't the same principal apply. Perhaps I should say lack of principal because the point is that you don't always have to establish the entitlement while you are actually working, before being temprarily absent.

I admit to the authorship of the Disability Rights Handbook quote referred to above.

I doubt though that that is of any relevance here. I suspect I was merely referring to the normal case, which is not in dispute here, where a period of incapacity does not, of course, prevent someone continuing to receive WTC.

Although it pains me to say so I do think Gareth is clearly right on this. Someone who was previously working (6.3) can claim whilst incapable (6.1) because they are treated as being in qualifying remunerative whilst doing so (6.2).

Update, Inland Revenue are still insisting that you are not deamed to be in remunerative work whilst in reciept of SSP. Have refered them to HMRC Tax Credit Technical Manual TCTMo2402, Reg 6. Issue has been refered to business and admin section for clarification. As they have read this reg; as meaning when already recieving WTC.

I think your best bet is to get it out of their hands as soon as possible. Seems to me the revenue will happily refer an issue between different people and engage in the endless issuing of pointless questionaires whenever something slightly complex comes up whilst the claimant loses out in the meantime. I notice you are a macmillan adviser. Has your client got a condition which would justify an expidited appeal? I suspect they will give in before you get them in front of a tribunal but if not you should win in any case.

YES, YES, Tax Credits have called me today, to tell me I was right!!!!
They where getting confused with the 28 week rule?? How it was explained enought times to them. An e-mail has been sent round to all relevant departments.

I am very sorry for staring my simillar thread. I spent twenty minutes googoling but did not find this thread because I was searching for "new" rather than 1st.