Hi

I am dealing with a case that was intially taken by another caseworker .

Cl has an overpayment on a joint award for tax year 2003/04 of approx over 4,000 due to incorrect income . It was challenged back in 2006 on grounds of official error and sh reasonably believed her award was correct. Cl had declared the income but for some reason the TCO did not include this on the award.

After 3 requests for reconsideration and complaints - the overpayment has not been remitted
They have accepted that they failed to include the income but there reason of not remitting the overpayment is that the cl failed her responsibilities by not checking her award notice (this is in accordance with the new COP 26 ).
I argued back that ' my understanding that the 'responsibilities' issue applied to decisions on recoverability from 31/01/2008 (when the new guidance came in effect ) . Before this guidance was introduced , in official error cases a test of whether you 'reasonably believed' the award was correct ' was in place.

I have a copy of the award notice that created the overpayments . It clearly shows that it is a joint claim . It has the cl's income and hrs (as she was working too ) But, the only details of partner shows that he is working 60 hrs - under the income section there are no figures at all . The TCO are arguing that it is showing as nil - I have tried to argue this too but with no avail.

Cl says that she thought the award was correct as she had provided the correct details , as the award was showing that he is working 60 hrs - she assumed that the TCO are aware that he is working and they have the income details that she provided on her initail claim . She was totally unaware that the income was shwoing as nil until the award was finalised.

I am intending to take the matter further as my instinct tells me that they are wrong . Does anyone out there think the same ? I would appreciate some response and reassurance whether I am doing the right thing.

Thanks - Tahra

Sorry , I forgot to add that the TCO responded to my argument about the COP 26 - their reply is that all overpayments are considered under the revised COP 26 - regardless of when the overpayment actually occurred.

Tahra

Did the income error occur as a result of the claimant reporting something? (so was it correct and then appeared incorrect on a notice) or was it from the initial claim form that it was wrong?

Victoria

Cl made initial claim on 25/05/03 and correct income was given at the time. TCO has confirmed that an amendment was made on 02/07/03 and for some reason this removed the partner's income . The TCO are saying that there household notes are stating that it was due to some interview taking place on 28/06/03 - no exact details were given but cl confirms that they have never had an interview .
The correct income details were given on 13/06/04 when the award was finalised.
As said before - the TCO have accepted that this was their error.

I have not had any response regarding my message sent on 08/01 . Is there someone out there who can let me know whether I have a chance of taking the matter further ?

I think you have to go on your own assessment of the case - you know more detail about it than anyone commenting here can.

That said, my own view of all these issues is that - unless it is quite clear that the claimant is at fault - they are worth fighting all the way. At the least, going as far as completing TCO complaints procedure and then going to the Adjudicator.

Have you or the client obtained the paperwork and CD of calls under Data Protection Act? If not, I suggest you do it - you never know what you'll find until you get it and study it. Make sure you ask for all the paperwork and screen prints.

Of course, this involves a lot of work and can go on for months, if not years.

Meanwhile write to make it clear this is still in dispute and that you are following the complaints procedure. They should not then attempt recovery.

I know I typed out a reply, but I have no idea where it went!

It is really hard to say without knowing all of the facts. I had a couple of more questions:

1. Were any income details given on the front of the award notice?

2. Was there a sharp rise in payments or a large lump sum that they noticed or made any contact about?

3. Have you requested copies of the household notes?

This is a difficult one to apply the new test to. HMRC clearly failed in their reponsibilities by not processing the income correctly. The second question is whether the claimant failed and i think that really depends on the award notice (And whether they had previous notices to compare it to if it was missing income)
Hard to say without seeing the award notices. If you think there is a potential point here, then you could dispute again and send a copy of the award notice as new evidence stating that HMRC failed in their responsibilities but the claimant met theirs because they checked what was on the award notice and their were no mistakes in the information

However, this becomes a harder argument if it was showing her income. Again check the front to see what total household income figure is showing. The number of award notices prior to that one would also be relevant. If there are none, then it is easier to argue that she thought everything was ok because they had the correct information.

The dispute step by step guidance is here: http://www.hmrc.gov.uk/manuals/ntcmanual/payment_opayments/ntc0780095.htm

As Derek says you know the details better than anyone, but it is worth continuing to pursue.

We have successfully had these nil income cases written off, but generally they have involved the claimant questioning a large lump sum or a rise in payments. (although the phone call was not subsequently traceable).

Good luck.

Thanks for the responses.
Derek - my next step was to request all the phone recordings and household notes - yes, I know this can take many months to receive but I will inform the Overpayments section .

Victoria - here are the anwers to your questions :

1)yes, only the cl's income

2) cl says that this was the very first award letter she received- I will wait to see whether this is the case when I have requested the household notes and calls .

3) as given above and I will send a copy of the award notice

Thanks once again

Tahra

Advisers should know that, while the Tax Credit legislation is carefully drafted to make it impssible to appeal about any aspect of an overpayment, it is possible to appeal against errors in calculating Entitlement. I have successfully argued, for two clients so far, that if HMRC raise an overpayment, they must have reviewed the claimant's entitlement in the first place to have decided they had been overpaid. Of course, they don't issue decision notices after reviewing entitlement, so I've had to assume the date of review is "on or before" the date of the overpayment notice. After studying Section 38 of the Tax Credits Act, I picked a clause that the client was most likely to have had their award reviewed under, and appealed under that clause. The argument is, that the HMRC have reviewed the claimant's award and have got their figures wrong.
In both cases, HMRC wrote back to me to acknowledge they had received an appeal. Then they wrote a second time to say they had reviewed their decision, and decided that the overpayment was indeed less than they had originally calculated (by about 40 per cent.) Since they had reviewed their decison, the appeal lapsed and so the claimant would have to appeal again if still not satisfied.
HMRC appear to be desperately keen to avoid being called to account at an appeal hearing. But in these two cases, pursuing an appeal resulted in a fast result for the client, in that they had their overpayment figure nearly halved. I have never been able to achieve anything this good, this fast, by using the HMRC's discretionary system. I don't know why more advisers don't try this. It's not the first time I've mentioned it on rightsnet.