Refugees - getting child benefit backdated to the date of the asylum application - claim rec’d 3 months + 1 day

Hiya,

Grim.

1. Firstly in terms of date form received, I would check very carefully how the deadline date should be calculated. Looking at the wording in reg. 6(2)(d) CB & GA (Administration) Regs 2003:

“within 3 months of receiving”

I would say that means say if letter sent 10/06/2023, it is deemed received 12/06/2023 and within three months of that is 12/09/2023. Does that seem right?

2. Secondly, reg. 5(1)(b) allows Board to decide to accept a telephone claim. I think a failure to accept the attempt at a claim as such is appealable (note provision that stopped this in sch 2 of the CB & GA (D&A) Regs was revoked by SI 2004 No. 3377 so that supports that).

Martin

Thanks Martin - you’ve inspired me to crack on whilst I was doubting myself! 

I think it was an email notification so I don’t think I can use the post argument to gain a couple of days but I’ll double-check.  Thanks very much for the ideas - much appreciated.

I’ve just had a client who won his appeal for backdating to the date he applied for asylum. The client with help from a refugee support agency tried to claim by telephone and were advised that they could claim as they didn’t have their BRP’s. I also backed this up by noting that the Child Benefit website has a list of what is needed to start a claim including National Insurance numbers which he didn’t have as they are printed on the back of the BRP’s

https://www.gov.uk/child-benefit/how-to-claim

Before you start
You’ll need:
• your child’s birth or adoption certificate
• your bank or building society details
• your National Insurance number
• your partner’s National Insurance number, if you have one
You can order a new birth or adoption certificate if you’ve lost the original.

The judge agreed and allowed the appeal as he accepted on the balance of probabilities the appellant was told he could not claim by HMRC and that the website created confusion in the mind of the appellant.

You need to check your client’s Home Office correspondence very carefully.

I’ve got a similar current CB appeal ongoing where my client was deemed to have been recorded a refugee when their grant letter was issued by email to their solicitor last year (post-BZ). I’ve had to put in a fair bit of groundwork but finally obtained a copy of that letter.

The letter contains materially identical information to the wording that HMRC’s Counsel claimed in BZ had been discontinued: it denies their right to work and claim benefits until the BRP was issued. See my attached redaction and para 7 of the BZ judgment. Was it HMRC or the Home Office that misled the court?

If your client is in the same position as mine, this ought to delay when their 3-month period commenced, so can be argued in addition to Martin’s suggestion of when the date of receipt should be deemed.

Edit: letter now attached.

I had success with a case of this nature a couple of years ago. CHB claim arrived 1 day after the 3 month deadline. Client was granted refugee status on 10th March and so they said that the request for CHB needed to arrive by 10th June. However we successfully argued that whilst refugee status had been granted from 10th March, the letter she received confirming that was dated 12th March and her BRP was dated 18th March. She could not make a claim until she was ‘notified’ that her status had changed.

Given that the letter was dated 12th March, allowing 2 days for post to arrive (being optimistic),it meant that the claim received on 11th June was in fact in time. An appeal was lodged by ourselves as they refused to overturn at MR, but then the appeal lapsed before the appeal hearing.

So perhaps check the dates on correspondence to see if there is any way to make them line up so that the claim did not arrive late.

Thanks all.  I saw my client yesterday and it wasn’t by email which is great :-). He confirmed he was notified he’d been granted asylum by post (letter was dated 8 August 2023) so the ChB claim received on 9 November was in-time, as the earliest possible date he could have received it was 9th August.  My client’s asylum determination letter didn’t include the wording about waiting for the BRP (not being proof of LTR/recourse etc) but it references a leaflet enclosed which he still has - that does say to wait for the BRP!
Hopefully, a sensible appeals officer will get the decision changed ASAP :)

RichB - 13 March 2024 09:22 AM

I’ve just had a client who won his appeal for backdating to the date he applied for asylum. The client with help from a refugee support agency tried to claim by telephone and were advised that they could claim as they didn’t have their BRP’s. I also backed this up by noting that the Child Benefit website has a list of what is needed to start a claim including National Insurance numbers which he didn’t have as they are printed on the back of the BRP’s

https://www.gov.uk/child-benefit/how-to-claim

Before you start
You’ll need:
• your child’s birth or adoption certificate
• your bank or building society details
• your National Insurance number
• your partner’s National Insurance number, if you have one
You can order a new birth or adoption certificate if you’ve lost the original.

The judge agreed and allowed the appeal as he accepted on the balance of probabilities the appellant was told he could not claim by HMRC and that the website created confusion in the mind of the appellant.
[/quote

I have an identical case at the tribunal and would appreciate if you could send me a redacted copy of your first tier tribunal decision, and if i could also view your submission .
That would be really appreciated.