Definition of couple
For means tested benefits such as Income Support/IR-Esa/Housing benefit the definition of a couple is;
“(a) two people who are married to, or civil partners of, each other and are members of the same household; or
(b) two people who are not married to, or civil partners of, each other but are living together as a married couple”
This can be contrasted with the definition for tax credits, s3(5A) Tax Credits Act 2002;
“ couple ” means—
(a) a man and woman who are married to each other and are neither—
(i) separated under a court order, nor
(ii) separated in circumstances in which the separation is likely to be permanent,.
(b) a man and woman who are not married to each other but are living together as husband and wife,.
(c) two people of the same sex who are civil partners of each other and are neither—
(i) separated under a court order, nor
(ii) separated in circumstances in which the separation is likely to be permanent, or
(d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners.]
The query concerns a same sex couple who are planning to marry each but not live together.
Ms A receives IR-Esa and HB. Looked at in isolation these benefits are not affected as they would not be members of the same household.
Ms B receives Child Tax Credit. (a) and (b) don’t arise as same sex, (c) does not arise as not civil partners. Thus, by default, appear to fall under (d) in which case would not be a couple as not living together.
HMRC guidance is not so clear cut (I realise guidance is not law). HMRC Claimant Compliance Manual describes a married couple as; Section 3(5) defines a married couple as a man and woman who are married to each other and are neither
a. separated under a Court order nor
b. separated in circumstances where the separation is likely to be permanent.
Note: The Marriage (same sex couples) Act 2013 extended marriage to same sex couples. See TCTM06100 for the definition of a couple.
Compare with the Tax Credits Technical Manual; A “couple” means:
•two people who are married to each other and not separated under a court order or separated in circumstances that are likely to be permanent,
•two people who are not married to each other but are living together as if they were a married couple, or
•two people of the same sex who are civil partners of each other and are not separated under a court order or separated in circumstances that are to be permanent
The Compliance Manual also states;“From the date on which a couple marry they will be treated as a married couple for tax credit purposes even if they do not begin living in the same household.
Has anyone experience of what HRMC do in practice? A straight forward reading of the s3(5A) Tax Credits Act concludes not a couple as not living together.
An analysis that requires “separation in circumstances in which the separation is likely to be permanent” is much more problematic.eg does separation mean separation by location, which there will be, or separation as in relationship breakdown, which is not the case.
There is some useful info here https://revenuebenefits.org.uk/tax-credits/guidance/how-do-tax-credits-work/understanding-living-together/
Basically though it is not about the physical location of the 2 partners the for tax credits, it is about whether the marriage has irreparably broken down or not. Your 2 will be treated as a couple (or should be).[ Edited: 23 Nov 2018 at 04:58 pm by BC Welfare Rights ]
When I read your post, my first thought was that you must be quoting from an out of date version of the Tax Credits Act. Surely, I thought, HMRC could not have forgotten to change the words “a man and woman” to “two people” in s3(5A)(a) of the Act at some point over the last five years - which is obviously what it should say in the wake of the Marriage (Same Sex Couples) Act 2013.
But, as far as I can tell, it appears that they have forgotten to do exactly that - as David Simmons points out in this article from 2014 (http://www.cpag.org.uk/content/couples-caselaw-and-same-sex-marriage) “HMRC has decided not to change the current definition of a couple for tax credits purposes”
So, the position rather seems then that these two people do not satisfy any one of conditions (a) - (d) so Ms B should continue to claim tax credits as a single person.
(Although it might not really matter either way and they might be best off just doing whatever HMRC tell them to do for an easy life…)
Does para 1 of Schedule 3 to the 2013 Act make it unnecessary to amend the Tax Credits Act? Or will I find that question answered when I read the article in the above link? Let’s have a look…
That’s a very fair question Peter - I had missed that Schedule (although it was in the back of my mind that something like that might exist…)
All I would say is that the terminology in para 1 of the Schedule (“a marriage”, “a married couple” and “a person who is married”) doesn’t quite line up with the terminology in the Tax Credits Act (“a man and woman who are married to each other”).
In the former case, Schedule 3 is effectively only operating for the avoidance of doubt. So if an Act written in 1950 says “members of a married couple are entitled to a tax break” then the Schedule is heading off a sort of purposive argument that the legislature in 1950 couldn’t possibly have envisaged that same sex couples would benefit from the tax break. There’s no interference with the actual wording of the older Act.
But if the Schedule applies to the Tax Credits Act - then it is doing something wholly different and overwriting the specific wording of the Act - because the Act refers to a valid subset of married couples (married couples who consist of a man and a woman) and Schedule 3 would be saying that actually the specific wording of the Act must be ignored.
Interesting. The couple has certainly been put in a difficult position - it probably doesn’t matter whether they are a couple or not for the purposes of the actual money they receive but because of the single/joint claim distinction they are potentially vulnerable to trouble whatever they do. I wonder if Ms B voluntarily claiming UC is an option… Good luck with it anyway.
Thanks to all for responses.
If they are treated as a couple for tax credit purposes Ms B will need to end her claim as a single person. A new joint claim for tax credits is not possible as Wirral is a full service area for Universal Credit. It is not possible to make a joint claim for UC as they would not be a couple for UC purposes as not members of the same household [s39 Welfare Reform Act 2012]. So Ms B would need to consider a UC claim as a single person.
I do not yet have full income/capital details for Ms B so not worked out if better or worse off.
[The course of true love does not run smoothly when social security law involved].
The 2014 WRB article on website is not up to date. We asked HMRC about it and their response was that it was not necessary to change the legislation due to the effect of Sch 3 as mentioned by HB Anorak - this is mentioned in footnote 14 to page 1466 in current CPAG handbook. This came too late for Percy Sledge.