When a client claims CTC and it is already in payment to someone else, TCO are now telling me that the CTC will not be switched to the new claimant until the CB has been switched, and will only be backdated to the same date. I can see the attractiveness of this for fraud prevention purposes, but I cannot see any basis in law for it. Also it prevents the new claimant getting CTC for the 3 week run-on period when the CB is switched. Does anybody else have any experience of this? Have you been able to argue for CTC backdating to when the responsibility started, once an award has been made?

I don't think they're telling you the absolute truth (I know, the shock!). I have often been told that CTC can not be paid until CB is in payment, but then the client will receive a payment of CTC the next week, whilst the CB has taken weeks to sort out - and this is when the TCO have still not managed to make contact with CB on their magical computer that knows things that the CB office won't tell you.

I have one client who made a claim for CTC, but really didn't want it to be paid until CB was in payment, but the TCO paid it anyway arguing that he had a birth certificate for the child therefore he must have responsibilty for his nephew. The CTC is counted as income for IS purposes because he doesn't have the CB in payment, so he's no better off.

I've not ever had a problem getting CTC backdated for when the client became responsible for the child, mainly because any CB claim would be backdated to the same date. Has the client asked for CB to be backdated?

CB has now been awarded, but only from 56 days after the child went to live with the gran from the mum. I think this is wrong becuase the move was permanent and the 56 days is meant to cover temporary absences. In my view the gran should have been awarded CB from 3 weeks after HMRC received her competing claim. When they received it, HMRC should have suspended CB while they resolved the question of responsibility. If they had decided that mum had received a recoverable overpayment because she did not have responsibility, then the full 3 week run on would not have applied. Obviously I was concerned that the CTC start date would follow the CB start date.

I completely agree with you that gran had priority after 3 weeks and should have been paid form then. If they continued to pay mum beyond the 3 weeks then there is a problem as they cannot pay gran for same period unless reg 38 of Child Benefit Regs applies.

They are clearly misapplying the 56 day rule. The question is what you can do about it. You may have complain to Parliamentary Ombudsman to try and get recourse. You could try threatening and see what they do. Notes to Sch 10 SSCBA in Bonner say, while you cannot appeal the priority decision, you can ask for a review. So you could try that as well although if they have already paid her then you have the problem with Sec 13 SSAA. If they changed the priority decision to be effective aftyer 3 weeks then this might give you more scope with Ombudsman if necessary.

I deal with these matters pretty frequently and I haven't had this happen, although I have often wondered if it might. Likewise with CTC. I usually find it is paid back to date of claim or up to 3 months earlier if requested. I agree no link to CB.

My biggest problems are delay, and seems to be getting worse at CB where children moving between families or from fostering to more permanent arrangement, and increasing difficulty getting to speak to anybody in Child Benefit who knows anything!

Tony

Thanks for your response Tony. It seems to me that this is very unfair on the new claimant (gran in my case) and leaves him/her entirely at the mercy of HMRC and its shortcomings. If HMRC continue to pay the original claimant beyond the 3 weeks, and they take no action to suspend payment or investigate responsibility because of their own administrative shortcomings, then the new claimant is denied CB for an indefinite period until they do act. Although s 13(2) of the SSAA 1992 provides that a new claimant cannot get CB for any week in which it has already been paid to another claimant (even if they were not entitled to it), reg 38(1) of the CB General Regs 2006 says that the new claimant is not so disentitled if it has been determined that a recoverable payment has been made to the original claimant. Can this be applied retrospectively, so that if a determination of an overpayment is made the new claimant can receive backdated CB for the period of the overpayment to the original claimant?

Tue 22-Jul-08 12:03 PM by ken

edited to change square brackets to round brackets

Brian, if they decide that there has been a recoverable overpayment then I think they should pay CB to the gran from the week after the third week following her claim. However, to do this they would have to be able to show that the original claimant had misrepresented or failed to disclose, so will depend on the facts of each case.

I am not sure that strictly speaking the 56 day rule is only for temporary absences. Section 143(2) CSSCBA does not refer to temporary absences but to looking retrospectively to see whether child absent for more than 56 days in the previous 16 weeks. If so, it is difficult to see that existing claimant has anything to declare until 56 days are up.

Funnily enough I have had a person (a gran too as it happens) I am dealing with contact me today to say only awarded CB after 56 days. She is going to send me the letter so that I can deal with it. I am not sure what to do but I suppose I will have to consider following my own advice! I will let you know what happens.

Tony

Fri 25-Jul-08 03:49 PM by Derbyshire

Brian - I think I was a little premature in what I was saying before about not being able to appeal the decision, although not sure how far it will take us. I've had a chance to look at my case this pm and I have realised that Schedule 2 of the SSA 1998 only prevents appeals against paragraph 5 of Schedule 10, i.e. where competing claimants do not come into the earlier sections. I had read the commentary to Schedule 10 and thought the comment about not being able to appeal applied to the whole Schedule.

Therefore, in my case I have appealed against the decision and I am waiting to see if they raise Section 13 SSAA. I have asked why they did not treat my gran as having priority in time to pay her and why they did not suspend existing claim if necessary while they investigated. They may not respond to that but it is obviously the question if they rely on Section 13. As you say it seems completely perverse that HMRC should be able to rely on their own shortcomings not to pay on the second claim. I'll wait for response before considering whether to do anything else at this stage.

Tony

Thanks Tony. I did in fact appeal the decision on the date of change of responsibility, asked them to make a fresh determination on that and to make a decision that there had been a recoverable overpayment to the previous claimant starting 3 weeks after they received the new claim. By my understanding of the regs this should allow the new claimant to get CB from 3 weeks after claiming. I'll let you know.

Brian