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Over payment of Tax credits, partner abroad

 

Pete at CAB
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Childrens Centre Adviser, CAB, Camborne

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Joined: 12 December 2017

Just an initial query as we may not have full facts of the case yet.

As I understand it the cl. was getting WTC and CTC as a single person. They went abroad and married a foreign national (not EEA national). The new spouse had considerable visa problems and was not allowed to come to the UK for many months. Spouse’s immigration status in that period is not known but it seems reasonable to think that they could not have had any R2R

Cl. did not notify HMRC of the marriage until some time later.

HMRC seem to be saying that the cl. has been overpaid both WTC and CTC from the date of the marriage (and,of course, that the O/P is recoverable).

CPAG seems to be saying that the Cl. could have had WTC as a couple regardless of the spouse’s immigration status but for the spouse to be part of the CTC claim they needed to be resident and present in the UK for at least three months prior to the claim and a have R2R as well (Regs 3 (5) &(6) of CTC ( residence) Regs 2003).

This leads me to think that although WTC was probably overpaid because cl. did not notify the marriage the CTC may not have been overpaid for any period before reg 3 applied as the spouse could not have been part of the claim anyway.

I would be grateful for any thoughts on this, as things stand the cl. is going to ask that HMRC don’t recover but if there is a hope that the amount of O/P can be challeged then they might wish to ask for an MR instead

     
Mark Willis
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Welfare Rights Worker, CPAG in Scotland

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Hi Pete

As you say, things might become clearer with more information, but my starting point would be the Tax Credits Act, section 3:

(3) A claim for a tax credit may be made-
(a) jointly by the members of a couple both of whom are aged at least sixteen and are in the United Kingdom,

This is a basic requirement both members of a couple to be present in the UK to make a joint claim as in CPAG handbook p.1580. EU law can over-ride this in some cases, and there are rules about temporary absence. So if one one of this married couple was not present in the UK, then the single claim should have continued until the partner became present in the UK - then you would get into the difficulty you mention with the three month living in requirement for CTC, which does not apply to WTC.

So that would certainly sound worth pursuing a MR about the end of entitlement as a single person.

Mark

 

     
MMiah
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Benefits Department, Crystal Law Solicitors, Leicester

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Hi Pete,

I had a case a few years ago and used extracts from the Tax Credit Manual to challenge the HMRC when they argued that a partner abroad caused an overpayment. 

I have attached a word document I prepared back then which is just extracts from the manual. 

In my case I was successfully able to argue that irrespective of the marriage the HMRC guidance required the claimant to make a single claim when partner was abroad.  It may be that the same applies to you.

I would recommend that you appeal the tax credit entitlement decision on basis entitlement remained throughout irrespective of marriage as partner was abroad.  Secondly, a tax credit dispute should be lodged essentially arguing that since entitlement existed then no overpayment could arise. 

Good luck.

     

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