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Forum Home  →  Discussion  →  Income support, JSA and tax credits  →  Thread

Refugees and backdated Child Tax Credits

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Rachel1
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Hi Folks,  I wanted to ask a rather long winded question - apologies if I miss anything out, here it goes:

I have a client where she and her children have been granted refugee status this year at slightly different times Mother - 12/11/2020 and children - 02/10/202 and 07/01/2021)

She says she made an application for Child tax credits (CTC) because she was aware that if you have refugee status you can apply for it and get it backdated.  They have been in the country for 7 years before hand with asylum seeker status.  I did some research and found this:

https://askcpag.org.uk/content/204602/backdating-child-tax-credit-for-refugees

To make matters more complicated she told me she received a letter saying she’d been turned down for CTC for her son but was asked for more information about her daughter - if she was in any sort of non advanced education.
Turns out her children are 18 and 20 now and not in further education.  Also when she sent me the letter it was in fact about child benefit not CTC and she has never got any sort of confirmation of CTC application at all.  Seems there may have been some sort of confusion with HMRC over what she was asking for and she hasn’t even applied. 

Also, she already gets Universal credit anyway.  I don’t know how long for, I’ve asked her several times with no response

My question is:  Can she still get apply and get backdated child tax credit even though 1. her children are no longer classed as children or young adults. 2. she is getting universal credit now anyway.  3. It seems she hasn’t even made an application for Child tax credits as she got a letter back about child benefits. and 4. Her children were not classed as children and young adults when they got child refugee status. 

My feeling is no she cannot apply for backdated CTC. Any thoughts/help is greatly appreciated.

Thank you in advance for any help.

Charles
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The fact that the children could no longer be included in her claim and that she now gets UC isn’t really relevant. Nor is it relevant that her children were no longer children/young persons when they got refugee status.

The real problem is that it sounds like she hasn’t actually made a claim for tax credits yet, and it has presumably been more than a month since receiving the notification of her refugee status.
It may be worth investigating to see what actually happened: who she spoke to, and what she asked for. It’s very possible she called both tax credits and Child Benefit, but only got a response from CB.

On the CPAG challenge generally, I’ve always thought it’ll be difficult for them to win it. The No 32 Commencement Order is usually irrelevant anyway (unless the claimant is over pension-age, in which case you would need to rely on CPAG’s grounds of the award including a period prior to 31 January 2019). It’s the No 23 Order which seems to me to be more of an issue. CPAG rely on the fact that Art 7(8)(b) doesn’t refer to the Immigration Regs, but I don’t see how they get past Art 7(8)(a).

Rachel1
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Charles - 09 February 2021 04:07 PM

The fact that the children could no longer be included in her claim and that she now gets UC isn’t really relevant. Nor is it relevant that her children were no longer children/young persons when they got refugee status.

The real problem is that it sounds like she hasn’t actually made a claim for tax credits yet, and it has presumably been more than a month since receiving the notification of her refugee status.
It may be worth investigating to see what actually happened: who she spoke to, and what she asked for. It’s very possible she called both tax credits and Child Benefit, but only got a response from CB.

On the CPAG challenge generally, I’ve always thought it’ll be difficult for them to win it. The No 32 Commencement Order is usually irrelevant anyway (unless the claimant is over pension-age, in which case you would need to rely on CPAG’s grounds of the award including a period prior to 31 January 2019). It’s the No 23 Order which seems to me to be more of an issue. CPAG rely on the fact that Art 7(8)(b) doesn’t refer to the Immigration Regs, but I don’t see how they get past Art 7(8)(a).

Thank you for your reply.

It seems after further discussion, she says that she asked for a child tax credit form, In return she received a child benefit form, which she filled and submitted. and got a response. 

I’ve advised her to call HMRC and ask if her CTC application is being processed but it doesn’t seem that this is the case.  Do you think she will be able to make an application?  should I be telling her that’s what she needs to do?  It does look like form the CPAG info that it will get turned down and shows the steps to deal with that so I imagine I will have to go down that route.

She received her confirmation of refugee status on 12/11/2020 and her kids 2/10/2020 and 07/01/21 so the dates are all over the place too.

Thanks again.

Charles
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If she only asked for a form, then it’ll be very difficult to argue that she has actually made a claim within the month allowed. However, you may still be able to rely on the other grounds being argued by CPAG in their test case - see here. Probably best to be in touch with CPAG and ask them.

Rachel1
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Charles - 10 February 2021 12:47 PM

If she only asked for a form, then it’ll be very difficult to argue that she has actually made a claim within the month allowed. However, you may still be able to rely on the other grounds being argued by CPAG in their test case - see here. Probably best to be in touch with CPAG and ask them.

Brilliant thanks so much.  I struggle to get a hold of anyone on the CPAG adviser line but I’ll give it a shot.

Charles
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There are a few CPAG people who post on here, so they may be able to help…

Paul_Treloar_AgeUK
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Rachel1 - 10 February 2021 12:55 PM
Charles - 10 February 2021 12:47 PM

If she only asked for a form, then it’ll be very difficult to argue that she has actually made a claim within the month allowed. However, you may still be able to rely on the other grounds being argued by CPAG in their test case - see here. Probably best to be in touch with CPAG and ask them.

Brilliant thanks so much.  I struggle to get a hold of anyone on the CPAG adviser line but I’ll give it a shot.

You know that you can email them about WTC enquiries?

EMAIL
Email advice for advisers in England, Wales and Northern Ireland is limited to enquiries that are specifically about universal credit, child benefit, child tax credit or working tax credit. The email address is .(JavaScript must be enabled to view this email address)

https://cpag.org.uk/welfare-rights/advice-service

Rachel1
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Paul_Treloar_AgeUK - 10 February 2021 02:30 PM
Rachel1 - 10 February 2021 12:55 PM
Charles - 10 February 2021 12:47 PM

If she only asked for a form, then it’ll be very difficult to argue that she has actually made a claim within the month allowed. However, you may still be able to rely on the other grounds being argued by CPAG in their test case - see here. Probably best to be in touch with CPAG and ask them.

Brilliant thanks so much.  I struggle to get a hold of anyone on the CPAG adviser line but I’ll give it a shot.

You know that you can email them about WTC enquiries?

EMAIL
Email advice for advisers in England, Wales and Northern Ireland is limited to enquiries that are specifically about universal credit, child benefit, child tax credit or working tax credit. The email address is .(JavaScript must be enabled to view this email address)

https://cpag.org.uk/welfare-rights/advice-service

Yes thanks I’ve done that too when I couldn’t get through :)

Charles
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Charles - 09 February 2021 04:07 PM

On the CPAG challenge generally, I’ve always thought it’ll be difficult for them to win it. The No 32 Commencement Order is usually irrelevant anyway (unless the claimant is over pension-age, in which case you would need to rely on CPAG’s grounds of the award including a period prior to 31 January 2019). It’s the No 23 Order which seems to me to be more of an issue. CPAG rely on the fact that Art 7(8)(b) doesn’t refer to the Immigration Regs, but I don’t see how they get past Art 7(8)(a).

Thankfully, the Court of Session disagrees with me.
HMRC tried to argue this (amongst other arguments), but the court held Art 7(8)(b) indicates what the intention behind Art 7(8)(a) is.

https://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_63.html

Per CPAG’s website, it appears a hearing was due to be held yesterday in the High Court on this issue as well.

Dan Manville
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Charles - 17 June 2021 06:19 PM

Per CPAG’s website, it appears a hearing was due to be held yesterday in the High Court on this issue as well.

I know DK was allowed and I’ve got a hearing looming on my lookalike; has HMRC appealed yet?

shawn mach
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Here’s DK in case others haven’t seen:

https://www.rightsnet.org.uk/welfare-rights/caselaw/item/high-court-rules-that-provision-for-refugees-to-make-a-backdated-child-tax-credit-claim-from-the-date-they-sought-asylum-continues-to-apply-where-that-date-was

In terms of the latest, here’s what CPAG are currently saying -

Current status: The High Court heard the case on 16 June 2021 and handed down judgment in favour of the claimant on 5 July 2021. HMRC have been granted permission to appeal to the Court of Appeal.  The Outer House of the Court of Session handed down judgment on 15 June 2021 in a case concerning the same issue ([2021] CSOH 63) and HMRC have indicated they are also appealing the Scottish court’s decision.

https://cpag.org.uk/welfare-rights/resources/test-case/retrospective-child-tax-credits-newly-recognised-refugees

Dan Manville
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Dunno whether it’s indicative of some news yet, but my lookalike that was listed before the FtT on Monday has just been postponed.

Dan Manville
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New just in. Dunno if this is common knowledge, but the appeal against the Scottish case is listed for hearing on 26th November.

edit: does anyone know how long it’ll take the court of session to hand down their decision?

[ Edited: 15 Oct 2021 at 09:52 am by Dan Manville ]
Stuart
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HMRC’s appeal against the Court of Session decision was refused by the Inner House on 18 January ([2022] ScotCS CSIH 2.

Meanwhile, a persistent HMRC is appealing against DK v HMRC with the hearing live-streaming today on the Court of Appeal’s YouTube channel.

[ Edited: 25 Jan 2022 at 09:30 am by Stuart ]
Jess Strode
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Following the legal successes, HMRC are looking at newly recognised refugees who tried to claim tax credits but were told they could not do so by HMRC (including cases currently at First-tier Tribunal) where asylum was claimed before 01.02.19.

Please send individual claimants’ details to CPAG and we will raise them with HMRC for these claims to be considered. Please contact .(JavaScript must be enabled to view this email address)

Note, any amount of Asylum Support received will be offset from the amount of tax credits awarded and tax credits will only be backdated to the first claim for asylum where the grounds on which asylum was eventually recognised existed at that time).

Current CPAG advice is that newly recognised refugees should as soon as possible and well within 1 month following receipt of notification of their grant of asylum or s.67 leave, claim tax credits via a telephone call to HMRC stating “please treat this phone call as a claim”. At the time of writing HMRC are still working on updating their processes to implement the judgments, but in the meantime, HMRC have confirmed the following process is in place:

• call handlers should check whether the claimant has been granted refugee status and, if they have, ask the date when they received notification that they have been recorded as a refugee
• where the call is being made within a month of them having being notified of their status, HMRC should record the details of the claimant and inform them that HMRC will contact them in due course to process the claim.

Please contact CPAG on .(JavaScript must be enabled to view this email address) if this process is not followed. Please also let CPAG know if tax credits are refused because UC was rolled out earlier than 01.02.19 in your client’s area.