Hello; mid February we have submitted a complaint as client's c.o.c. not acknowledged or acted on since mid-October 2008. Neither the complaint about the delay or the issue itself has been dealt with till now. So we wrote to the Adj who tells us that we must wait for final written response from TCO. This is kinda NOT happening. What to do now?

Second issue: the c.o.c: client in receipt of CTC until Sept 2008. In October her child is awarded HRC of DLA, backdated till January 2008. So from Jan 08 till Sept 08 client technically in receipt of CTC for a child who gets HRC of DLA. For these months- we think- she is entitled to severe disability premium with her CTC claim. Am I right to argue with TCO that this should be paid to my client?
Her claim stopped in Sept 08 because (a) child in receipt of benefits in her own name (IBiY) and (b) o/payment issue.
If this severe disability premium is awarded, can those stumbling clowns from TCO credit it against o/payment and never actually pay to client?

Please help- I am grateful for any nuggets of wisdom.

J.

Thu 23-Apr-09 12:28 PM by Tony Bowman

According the CPAG handbook (page 1317) your client should have notifed the TCO within three months of making the claim for DLA and that, if this is done, the relevant element can be awarded retrospectively within three months of the DLA award. If it is not done, the change of circs can only be backdated for three months. Either way, some arrears will be due.

I don't know the answer to offsetting and couldn't find it quickly, but I would imagine the answer is yes they can offset.


Failing to reply to a complaint is worthy of a complaint itself and so I think the adjudicator should accept this, new complaint, on the basis that the pre-adjudicator procedure has failed and is ineffective. I've had similiar issues with complaints and this respose from the adjudicator. Usually, in my experience, the adjudicator prompts the TCO to reply.

You might get a more sympathetic response from the Ombudsman who are somewhat more impartial than the adjudicator. You might also try enlisting the support of your client's MP, though I find this is only of limited effect since MP's - like clients - tend to take what they are told at face value when it is often inaccurate or wrong.

GL

Thank you Tony; the client did notify the TCO about the DLA claim and MP has written to them recently.
But we have not tried the Ombudsman- I was under the assumption that you first have to complain to Adjudicator- and that complaint was never accepted by the Adj.

Shame about the offsetting- we are going to challenge the o/payment anyway.

Your assumption is about complaining to the adjudicator before ombudsman is right.

But the point I was making was that if this rule is strictly enforced and the adjudicator won't even consider a complaint regarding a failure to respond to a complaint (which is not the same as pursuing an existing complaint that has had a reply) - where else can you go - except, perhaps, JR...?

In those cases I've had, the adjudicator has also rejected the complaint as premature but successfully prompted a reply from the TCO.

I haven't had a case at the adjudicator for some time, but when I did they certainly prompted TCO to reply if necessary. So I would certainly go back to them, although I do know they seem to have changed the way they look at cases & may be less helpful than they were.

I am wondering if the lack of making the change has something to do with the fact that the award had ended before DLA outcome was known. She should shortly get some renewal forms and then a finalised award issued which then should include the SDE.

Have you tried asking the intermediaries helpline? I have had some success with them in the past where a change has been stuck in processing.

We have been told by the tax credit consultation group that the intermediaries line should be able to help in these sorts of cases. Either they should be able to explain why the change cannot be made, and take action to get it done (e.g. referral to the technical team) or they should action the change.

Regarding your point on the overpayment, if the award is overpaid, adding the SDE will reduce the overpayment first in my experience. The claimant would be repaid anything that is left after the overpayment is cleared. On the other hand I have seen a couple of instances where this hasn't happened for some reason.

Victoria

Tony wrote that "According the CPAG handbook (page 1317) your client should have notifed the TCO within three months of making the claim for DLA and that, if this is done, the relevant element can be awarded retrospectively within three months of the DLA award"

I need some help with this: the DLA award has been ongoing for many years. My client has asked for it to be reviewed due to changing care needs and mobility. The DLA has never actually stopped and new decision on appeal upped the care rate but only up to the original award's end date. Was it a new claim that required TCO to be notified?
Client has informed TCO but 5 months after she asked for DLA to be reviewed.

I assumed your question re DLA was in respect of the child's claim and, in that case, yes it is a new claim for DLA that is required to notified in order to access arrears.

Since the client's claim was a CoC and that change was notifed then the CoC should have been done and the client should pursue the complaint.

Yes, sorry for lack of clarity- the DLA and the c.o.c was in respect of client's child. The DLA c.o.c was submitted on 31 January and she has notified TCO about it end of May; 4 months later. So the TCO would only consider backdating till end of February, correct?

No. It would appear that my first post was the right one. See regs 25 and 26A(3) TC(CN) regs. Your client didn't notify the TCO within three months of the application for supersession for DLA, so the CTC SDE can only be awarded for a maximum of three months before the date of the increase in DLA, which would be mid July.

Tony, please bear with me, I am totally confused. Please look at this chronology;
(1) 31 Jan 08-DLA CoC claim form submitted;
(2) 27 May 08-client calls TCO to tell them about it
(3) 18 June 08- DLA decision that the original decision remains correct.
(4) 17 October 08- client goes to Tribunal, we win highest care, backdated to 31 Jan 08
(5) 20 October 08- client calls TCO and 29 October 08 client writes to TCO to notify them of HRC
The CPAG page 1359 says: if you claim DLA for a child, tell the Revenue straight away- (client thought as there is an ongoing DLA award, there is nothing to report to TCO when she submitted CoC), then CPAG says: tell the Revenue again within 3 months of the decision that DLA has been awarded- (well, the 18 June decision did not change anything, but the 17 October decision did and client notified straight away)- so that SDE is fully backdated to the date from when DLA is payable or, if later, the date you told the Revenue you had claimed DLA.

Once again, I am sorry for being particularly thick on that: till when the SDE can be backdated in the above scenario?

Joanna,

Please rest assured that I, and doubtless every othe reader/contributor, does not think you're thick. It just highlights the unreasonable burden placed on claimants who are expected to understand all this. And lets face it, tax credits is, always has been, and is likely to continue to be, one of the most difficult benefits to deal with both in terms of administration and legislation.

But back to your problem. Tax credits are not a particularly strong string in my bow, but I stick to my last post. My interpretation of the regs would mean that you would be better to read the first bullet point of page 1359 as follows:

- If you claim, or apply for an increase of, disability living allowance for a child, tell the tax credit office within three months of that claim or application. Do not wait until the claim is awarded. If you then contact the tax credit office again within three months of a new award or an increase of an existing award, additional elements in CTC should be paid from the start of the DLA award or the date of the increase.

The key factor for your client is that she did not notify the fact that she'd applied for a supersession of DLA within three months of that application (reg 25 TC(CN) regs) (see points (1) and (2) of your chronology. That fact limits the available backdating to three months from the date of the award (reg 26A(3) TC(CN) regs). and means the backdate goes back to 17 July - three months before the award was confirmed by the tribunal.

Tony

You are a blooming star, Tony, I thank you

But hey, look at that: From 6 April 2009, the following changes come into effect:

The disabled child and severely disabled child elements of child tax credit (CTC) can be backdated for more than three months as long as the Revenue is notified within three months of the decision to award disability living allowance (DLA). It is no longer necessary to have first notified the Revenue when the claim for DLA was made.

From CPAG Tax Credits e-bulletin
http://www.cpag.org.uk/cro/tax-credits/newsletters/2009_March_Tax_Credits.htm


Now, as the DLA claim made before the changes BUT the DLA decision made after the changes- which rules will apply?

The original source: SI 2009 No. 697; Tax Credits
The Tax Credits (Miscellaneous Amendments) Regulations 2009, Reg19
http://www.opsi.gov.uk/si/si2009/uksi_20090697_en_1

Thu 14-May-09 02:37 PM by Tony Bowman

Hi Joanna,

Well found!

You asked "Now, as the DLA claim made before the changes BUT the DLA decision made after the changes- which rules will apply?

You said in your first post that ” In October her child is awarded HRC of DLA”.

Clearly this is before the coming into effect of the new regulation (16/03/09) so I would have to say the earlier rules will apply.

Sorry…

oops, true!

... and, for completeness, here are the regs, published to rightsnet news back in march 2009 ....

Miscellaneous tax credit amendments: New statutory instrument

OK, so now the HMRC updated their manual with regards to the changes and it reads like this:
"TCTM05330 Backdating Disability and Severe Disability elements of WTC & CTC - Backdating Prior to 6 April 2009

CTC
Tax Credits (Claims and Notifications) Regulations 2002, Reg 26A
A claim for the disability element or the disability and severe disability element of Child Tax Credit can be backdated for more than 3 months if all the following conditions are satisfied:

-a claim for the disability element or the disability and severe disability element of CTC was made, but not awarded because Disability Living Allowance was not in payment in respect of the child.

-at the date on which the CTC claim was received by an appropriate office, a claim for Disability Living Allowance in respect of the child had been made but had not been determined.

-the relevant claim for Disability Living Allowance was later determined in the child’s favour and within 3 months of the relevant claim for Disability Living Allowance being determined the claimant, or in the case of a joint claim, one of the claimants notifies the Board.
In these circumstances, the subsequent claim for CTC, including the disability or the disability and severe disability element, can be backdated to the first date that the Disability Living Allowance was payable or,

if later, the date on which the original claim to the CTC disability element or the disability and severe disability element was made/treated as being made (that is, the earliest date of entitlement to that element under the original claim).

For Example:

A claim for DLA for a child was made on 15 April 2003 but not determined before the date a claim for a disability element of CTC for that same child, was made on 17 July 2003. On 19 March 2004 DLA was awarded to the child and backdated to 15 April 2003. TCO are informed of that decision within 3 months of the date of the DLA decision, therefore, the disability element of the CTC award is backdated to the DLA award start date, 15 April 2003."
http://www.hmrc.gov.uk/manuals/tctmanual/TCTM05330.htm

As my case involves backdating before 6 April 2009, the old rule of having to notify TCO within 3 months of making the claim for DLA should be there- but it is not. Quite opposite- it talks about "within 3 months of the relevant claim for Disability Living Allowance being determined the claimant notifies the Board "

So I am truly confused- the old rules talked about notifying TCO within 3 months of making the DLA claim and the manual which refers to the old rules talks about notifying TCO within 3 months of determining the claim- which is new rules exactly!

And if you wanna a laugh, read this: A person makes a claim for DLA for their child on 13 February 2007. Their child was born on 18 August 2007 ....
Taken from TCTM05320.

My head is spinning!

On a quick skim read, it seems that unlike the WTC section above it, they have missed the part that required the claimant to make a notification that they had applied for DLA (the 1st notification).

I am happy to send an email to the Tax Credit consultation group to see if they can clarify if that would help.

Victoria

Yes please Victoria.

This case has given me nightmares; for example we have just been told that it has gone to the appeals team- despite no appeal or review request being ever submitted!
What we asked for (implementing CoC) is not done,what we do not ask for- they go ahead with it. (insert rude words here).

I asked HMRC to have a look at the guidance, and they have said that they believe it is a mistake and that it should include the 1st notification requirement that was in the Regulations prior to April 2009.

It should be amended in the next update in August.

Victoria