I have a couple where Mrs is british citizen, Mr has recently entered the country to marry Mrs and is subject to immigration control. He has submitted all documentation to Home Office and decision is pending on his status.

They have put in joint claim for Tax Credits as from July but it has not been paid because MR. does not have a NINo. & has been told one will not be granted until Home Office make their decision.

Is there any case law around this to support a claim being paid without a NINo ?

Mrs has now been told by Job Centre + to put in claim for Tax Credits as single person, which she has now done (saying he has moved out), despite partner still living with her. I thought that this was not possible as it would be breaking Regs. by not declaring him ?

Tax Credits have stated that if this new claim is now paid before the previous claim it will be very difficult to get the old claim paid at all.

Any thoughts ???

Have a look at the following.

http://www.cpag.org.uk/cro/wrb/wrb198/NINO.htm

I can't give any advice on the NINO issue, but the advice from JC+ horrifies me. They have told her to lie? Or is the idea to say he has moved out hers? Even if the latter is the case, the very fact of a suggestion by JC+ to put in a single claim when it is known they are a couple is irresponsible to say the least. Knowingly doing so could even be looked on as fraud. There would be an argument against such a view if the amount she received was no more than would have been received from a couple claim, but TCO would almost certainly argue it was - on the ground that no payments were due until he had a NINO.

The fact is they are married and living together. If/when this is found out any payments made under the single claim will be treated as overpayments and the money demanded back (because the regulations require that it has to be a couple claim in these circumstances). If it goes on for some time it could be many £000s. I have a somewhat similar case, with an overpayment of £10,000+.

Your final para. gives me the impression the Tax Credits Office knows what she is doing, but probably I have misinterpreted what you say. Certainly, if it was true they were separated and the separation was likely to be permanent then a single claim would be valid; and if they then got together again it would have to be stopped and replaced by a couple claim. But this could well be subject to a Compliance investigation if TCO picked up on the fact that the initial claim had been as a couple.

All this makes me suggest you urge her not to proceed down this route, but to withdraw the single claim.

If only you could withdraw the single adult claim - remember tax credits has no reverse gear. I reckon the best thing will be to re-claim as a couple, in order to kill the single person claim. This new, couple claim will founder because of the NINO problem (can't remember the outcome of the tax credits NINO debates that have raged before in these pages).

Knowingly claiming as a single person when you know you are a couple is tempting a compliance investigation, as Derek says. An 'incorrect statement' based error such as this carries the risk of a penalty of up to £3,000 (plus Clink if the Revenue really wanted to go for you), although it would appear that there has been very little compliance activity generally, from HMRC (this might be a resources issue though).

Clients only 'defence' would be the advice from JC+, which I don't imagine there is any proof of, since it is so ridiculous. Even if there were proof, I do not think this would be enough to protect the client from a compliance broadside.

Lastly, I do not think the May 2007 version of the 'notional entitlement' provisions will help here to reduce any overpayment, because there almost certainly be no 'genuine error' case to based it on at the claim stage, for reasons set out above.

Pip pip!

Steve

Thanks for your replies, to update you, the client has now been paid tax credit as single person.

Although probably not the best way to go at least they now have some money to live on. Who knows how long it would have taken for the original claim to be processed with no sign of the NINo coming through.

Colleagues have said that as for the award, it would be no different to claiming as couple because his immigration status would mean no entitlement to benefits anyway and he would therefore not be counted in claim.

Seems ridiculous that even though he is not counted they still need all his details before paying. In the meantime they would be living in abject poverty.

the client has been advised regarding the legality of claiming like this and left up to them to decide as to how to proceed

I think your colleagues are incorrect. You can in fact claim tax credits as a 'mixed household', and special tax credits rules treat you both as if you were BCs etc. That is not the problem. The problems here are (i) lack of NINO and (ii) claimants knowingly misrepresenting themselves. HMRC may well act very badly to the latter.

Arguments about true loss to the public purse do not run in this case, for reasons I referred to in my earlier post. Have you written to client to warn them they are wrongfully claiming? Don't mean to stick my nose into it, but as and when it all goes pear shaped, you might end up getting sucked into the whole thing if client panics and says you supported the tactic.

Steve

I fully support what Steve has said. As I mentioned before, I have a case very similar to this, except that there had not been any adviser input at the outset. The payments on the single claim went on for some time and - when it became known that it should have been a couple claim - all the money that had been paid was demanded back.

This is just the sort of case that could easily lead to a Compliance investigation and a penalty as well as a demand for repayment in full.

There is clearly no (or negligible) loss to public funds in this type of case and I think the system stinks, but getting the Tax Credit people to see this and act on it seems to be nigh on impossible. Your clients will almost certainly end up far worse off if they continue down this route.