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Married couple and living together as husband and wife

 

Ruth Knox
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RAISE Benefits Advice Team, Liverpool

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I am trying to do a submission for a married couple whose marriage was going through a difficult period and so they separated.  The husband returned, for financial practical reasons, to the home but his wife still considered them to be separated.  At the same time they were going through couples counselling and were eventually reconciled.  It seems to me that it is quite difficult in these circumstances to establish that they were not a couple for tax credit purposes, bearing in mind Section 3 (5A) definition of a couple in the Tax Credit Act 2002. I have a Sweet and Maxwell reference to CTC/1629/2005 but can’t locate it.  Does anyone know where it is?  Also, is anyone aware of any more up to date case law?  I’ve noticed the recent case Em v HMRC (TC) [2018] UKUT 220 (AAC| but the whole point of that is that they weren’t married, so the usual tests - financial, sexual relationship, intention, etc etc could be applied.  Any suggestions? 

Thanks Ruth

     
Billy Durrant
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Good morning Ruth

I think that it’s actually this one https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Claiming-as-a-single-person-when-separated-from-partner

http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKUT/AAC/2013/631.html&query;=(CTC/1629/2005) says that “R(TC) 2/06 (incorrectly referred to as CTC/1629/2005 at p.123 in volume 4 of Social Security Legislation 2013/14, when its correct file reference was CTC/1630/2005).”

     
Ruth Knox
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RAISE Benefits Advice Team, Liverpool

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Thank you Billy. Yes that is the case I was looking for and it’s made me slightly more hopeful.  I was wondering how ou predict whether a separation is likely to be permanent or not.  Now all I have to do is establish that someone who is living in the same house out of necessity but sleeping on the sofa is actually separated - but given economic circumstances that’s not impossible.

     
Peter Turville
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Ruth, you also need to consider the decision making process for TC’s which as you will know are different to benefits.

So, for example, if your client was receiving TC on a single person award when husband returned to the home on what basis did TC changed her existing award - under s16 ‘other revised decisions’ or s18 ‘decisions after final notice’ (‘finalised award’).

If it was under s16 did HMRC have ‘reasonable grounds for believing’? Has a subsequent s18 decision been made (in which case the appeal against s16 should ‘lapse’ and your client has to make a new appeal against the s18 decision)? Which decision making provision applies can imapct on how the facts of your case (inc. the question of permenant seperation) interact with the decision under appeal.

HMRC (and some tribunals) fail to get to grips with the TC decision making provisions and how that impacts on factual issues like alleged ‘living together’. HMRC submissions often fail to mention / address the decision making provisions at all!

     
Ruth Knox
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RAISE Benefits Advice Team, Liverpool

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Yes not only the TCO don’t get to grips with this - I haven’t either and it could well be crucial so I do need to put that right. I saw it was an issue in the reported case.  Thanks to both of you for the help -  this really is a case where i would be floundering without rightsnet.  Ruth