Hi All,

Happy Friday…I have seen a client this morning he is Polish and working in the UK. His Wife also works, however, his wife and children are living in Poland. The client is receiving Child Benefit. However, his children have never lived in the UK. He also wants assistance in making a claim for CTC & WTC.

Without CTC he isn’t entitled to WTC.

I have read that for Child benefit “There is an exception to the rule that a child must be present in the UK which applies to EEA nationals. To qualify, an EEA national (including a national from one of the A8 states) must be employed or self-employed in the UK, although this can include someone who has previously worked here and/or has been liable to pay national insurance contributions. An EEA national who meets these criteria and has a child or children living in an EEA member state other than the UK can, in some circumstances, claim child benefit for those children”.

Surely the child must be present in the UK for a period of time before CHB can be paid? If the client is receiving CHB does this mean the client is also entitled to CTC even though the child isn’t living in the UK.

Would be really grateful for some advice??

Nikki

EEC Regulation 1408/71, article 73 states:

“An employed or self employed person subject to the legislation of a Member State shall be entitled, in respect of the 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”.


“Surely the child must be present in the UK for a period of time before CHB can be paid”?

Not that I’m aware of.

“If the client is receiving CHB does this mean the client is also entitled to CTC even though the child isn’t living in the UK”.

I would have thought so as CTC, in my view, is a family benefit. It’s predecessor, Family Credit, certainly was. And, it is not excluded from the scope of the provision by Annex II of the regulation.

Hi,

Thanks for your response.

If this is the case the other problem is does the client apply as a single person or as a couple? Clients Wife also works...?

When making the claim both people have to be in the UK for the purpose of a joint claim, otherwise he should make the claim singly (section 3, Tax Credit Act).

According to the CTC regs (reg 3), to get CTC, the claimant must have main responsibility for the children which, in the first instance, means the children are 'normally living' with the claimant. The remainder of the reg deals with competing claims

I'm not particularly adept at the EU law side of things, but I struggle to think how there can be a 'workaround' such that your client can actually get CTC as the children are not living with him... Especially, as the position wouldn't be very much different if the partner was living in the UK.

It appears from this HMRC factsheet that the normal presence rules about joint/single claims do not apply in this situation.

See http://www.hmrc.gov.uk/leaflets/wtc-fs5.pdf

Pg 4 says:

Make a joint claim with your partner and include the children’s details on the claim if:
• you are responsible for a child or children who are living with your partner in another
EEA country or Switzerland and
• you are either
– working in the UK and paying UK National Insurance contributions or
– receiving contribution-based Jobseeker’s Allowance.

Victoria

For CHB the kids are treated as residing in the UK by art 73 as Paul said above. To get CHB the claimant needs to be contributing to the maintenance of the kids at least by as much as CHB. For CTC it is different because of the 'normally resides with' rule.

The article 73 bit gets them considered to be in the UK but whether the parent can get CTC depends on art 1 (f) of 1408/71 "where however, the said legislations regard as a member of the family or a member of the household only a person living under the same rof as the employed or self employed person or student, this condition shall be considered satisfied if the person in question is mainly dependant on that person" So the question becomes "who are the children mainly dependant on out of mum and dad?"

Don't know where the joint claim bit in the revenue factsheet comes from. In an appeal some people at the revenue ttried to persuade me that the 'in respect of' part of article 73 took in the partner but I couldn't see how this could be the case and they did not stick with it.

Thanks guys,

I’m still very confused regarding the CTC though?? Is that a Yes or No?

My clients wife’s is also working and I cannot believe if he is entitled to CTC that her income would not be taken into consideration...it just doesn't seem fair??

I think I might just advise him to make a single and couple claim and see what decision HMRC make.

:$

D'oh!!!

Sorry Victoria i missed your message!!! Yes it appears my client should make a joint claim for CTC.

Thanks

Nikki

I'm not convinced about this joint claim business in the HMRC leaflet. It is at odds with s 3(3)(a) in the act and the technical manual:

"Couples where only one partner is in the UK
Where only one partner in a married or unmarried couple is in the United Kingdom, that person should make a single claim to tax credits as an individual.

If one partner in a married or unmarried couple ceases to be in the United Kingdom, the entitlement of the couple will end. The other partner will need to make a new claim as an individual." (TCTM 02002)

I can't find any provision that modifies this. I wonder if you could ask the HMRC big nobs about this in the consultation meetings Victoria?

Happy to raise this as a question through the consultation group to clarify what law HMRC are relying on in relation to the leaflet.

Will post as soon as I get an answer.

Victoria