Hi folks

I have come across this problem several times.

Quite a lot of my my clients are from ethnic minorities who have strong links on the other side of the world. Sometimes one partner has to go back for an extended period. The remaining partner then phones Tax Credits up to report a change of circumstances. The conversation goes something like this...
"My husband has gone to our home country to look after his elderly mum, who's sick."
"When did he go?"
"Yesterday."
"How long will he be away?"
"I don't know, maybe a long time."
"Well, phone back if he hasn't returned within 8 weeks".

8 weeks later the wife has forgotten (or not understood due to limitations of English) the request to phone back. She understands that she has reported the change in circumstances. There has been no further change of circumstances. Child Tax Credit continues to arrive. So she assumes all is well with her claim.

6 months later husband returns. She phones again to report the new change of circs. She is told that she failed to inform them that her husband had been abroad for more than 8 weeks, and to make a single claim. A new joint claim is required, and a 6 month overpayment has arisen!

Of course, if the joint claim had been ended when the husband left, and the wife had switched to a single claim then, she would have been eligible to exactly the same amount of money as the overpayment.

On what basis can such folk appeal?

In one case I'm looking at the phone recording and finding bits and bobs that might help:
- client not informed that the proffered information is NOT being regarded as notification a change of circs nor as a new, single claim
- client not asked whether partner's absence liable to exceed 8 weeks
- client not told why she should phone again in 8 weeks
- client not warned that failure to phone could result in overpayment
- client not given the option of transferring to a new, single claim
Will these arguments work?

Any other suggestions?

Hi Peter,

I can’t see anyway around the 8 week rule in principle. In the case you mention, had a single person claim been made immediately, there would be no overpayment, but we can’t use the Notional Entitlement provision, because this case fails to tick key boxes (the problem did not happen at the date of the claim, and there is no compliance investigation).

I think that leaves basic entitlement and recoverability, as possible defences. So far as entitlement is concerned, can we argue that the correct entitlement figure is what HMRC should have calculated, taking into account the client’s actual report? In other words, we argue that the client acted reasonably in trying to report a change in the way she did, even that she was effectively trying to claim as a single person. This person may have had poor English/other extenuating circumstances. If so, we can then suggest that the entitlement figure used to calculate the overpayment is wrong. The client said her partner ‘may be gone a long time’. We know that entitlement is not an abstract concept etc, and is sensitive to claimant behaviour/action.

If we can therefore get the matter before a tribunal on the basis of an entitlement issue (assuming not too late for an appeal etc), you could have a chance, depending on how flexible the tribunal is. Please do not laugh if I am barking up an entirely wrong tree.

On recoverability, I say that the various claimant responsibility tests lined up in the current COP 26 must be subjective. So did the client act reasonably when she phoned HMRC, within the context of her ability to understand/respond? Problem is, even if you can make a case along those lines, you then need to show at least one HMRC responsibilities failure. I can’t see HMRC conceding that they have failed. From their point of view, what else could they have advised when your client phoned to report the change (apart from accept it as a new claim and advise client accordingly – see above)? I agree that the points listed at the end of your post are relevant, but I doubt if HMRC will agree, for all the usual reasons. Maybe the Adjudicator will see things differently.

What do you think?

Steve

Mon 20-Apr-09 12:21 PM by Tony Bowman

I can't add to Steve's full reply, but as an indicator of how the TCO view thier responsibilties (and what you're up against), I had a letter from the TCO about disputed overpayment recovery that went something like this:

- we agree your client did notify us of his change of circumstances; and
- we agree that we didn't make the necessary amendments to his claim; but
- we did not fail in our responsibilities.

Eventually, we got it sorted.

All I can say now is, good luck!!

"- we agree that we didn't make the necessary amendments to his claim; but
- we did not fail in our responsibilities".

The mind boggles. How on earth do the authors of such statements get jobs which involve working with language and the use of reasoning?

The Inland Revenue's starter for 10. Define the grammatical function of the word "but" in the above example.