All opinions welcome. Client is currently a lone parent. She has married her boyfriend (who lives and works at the other end of the country). Their intention is to live together in the fullness of time, but they can't at present due to an ongoing residency order dispute between client and her ex (until this is resolved she is prevented by court from moving away). She was initially told by TCO that she should continue to claim (CTC only) as single parent but requested written clarification. TCO has now stated she should make joint claim. We're split on how the regs should be applied. Anyone else want to join the debate?

if she's married she cannot, ipso facto, be a lone parent. she might be married but separated, married but not living together - but she's not a lone parent....

IMO they should make a joint claim.

In benefit land, you can clearly be a lone parent and be married, as long as you live as a lone parent. However, this case presents considerable problems.

Section 3(5) of the TCA says...

"In this Part “married couple” means a man and woman who are married to each other and are neither—

(a) separated under a court order, nor

(b) separated in circumstances in which the separation is likely to be permanent."

Sub section (a) looks to be a non starter, as does (b). Ironically, even if there was no intention to live together, it would be difficult to argue they have separated, if they had never lived together in the first place! I suppose the argument would then have to be that they separated at the alter, so to speak. No matter: In this case, I reckon they are stuck as being a couple, and will have to apply accordingly. Cold comfort that social security would surely decide they were not so.

Steve

That is pretty much the conclusion we had reached. But we found this points of discussion.

The word 'seperation' could be said to have implied some previous 'togetherness'. If this was in a physical sense then there might be an argument for their not being a couple. If it is an emotional sense - which I am inclined towards - then they would be a couple.

The issue also raises another interesting point. If she is claiming IS as a lone parent - and we believe she can rightly continue to do so - and he receives the tax credits, what would income support make of his tax credit income? Beneficial? Actual?

if he is not part of her family for IS purposes then his income wouldn't seem to count (reg 23 IS regs). The client can safely choose not to be the recipient as tax credits are specifically excluded as notional income (reg 42(2)).

Further thoughts...?

Hi there Tony,

I reckon that 'separation' is most likely to mean physical, in the minds of the Revenue. So you could still be madly in love, but permanently separated. That seems in line with intention.

If separation is alternatively defined along emotional lines, then you could end up with a married couple, living in the same household but emotionally unbonded, and each claiming tax credits individually. Tony, this would constitute an almost decadent state of affairs, in the mind of the Revenue...

What can you be thinking of?!

Steve

It just doesn't sit right with me and even though I'm now home it's still bugging me. Like Tony says, 'separation' implies a period of 'togetherness' (as in physically in the same household) prior to the separation. In which case, it seems to me that none of the above applies and she's still treated as single for TC purposes. It just ain't logical (but then this is HMRC land I suppose...)

You are indeed right........you are now dealing with HMRCland where things are the opposite of what you thought.

In DWPland people want to show that one is actually two; in HMRCland they want to show that two are actually one.

In HMRCland you start to lose the tax benefits of marriage if it can be shown that you have actually left your spouse, but it is the intent of ceasing to be married (living together) rather than a forced separation that matters.

I think they are a couple for tax credits.

I see what you mean about separation pre-supposing a period of togetherness, which is what I was driving at in my comment before last. However, if neither (a) nor (b) of section 3(5) applies, then they are stuck being a couple, simply by virtue of being married, as per the opening sentence of s3(5). The Revenue never envisaged such complications when the Act was drafted. Indeed, the lack of Revenue resources available to deal with the 'messiness' of claimants lives (multiple changes of circumstances etc), explains a lot of the early overpayments problems, in my view.

Have a good weekend all!

Steve