Tax Credit caselaw –subject index
Appeal rights and procedure
Backdating
Childcare costs
Claims& decisions
Couple/single claims
Disability element
Education
Family element
Income and overpayments
Official error
Remunerative work
Residence issues
Responsibility for child
Undisclosed partners
Appeal rights and procedure
Power to extend time for appealing in tax credit cases; arguable right of appeal against decision not to revise on grounds of official error (para 50); arguable official error if claimant not given opportunity to contribute to enquiry (para 53) [2013] UKUT 199 (AAC) see [2016] UKUT 331 (AAC) VK v HMRC
Right of appeal if claim rejected by HMRC [2014] UKUT 158 (AAC)
Except where it has a prior direction from the FTT authorising it not to do so, HMRC is required by law to serve its written appeal response on the appellant regardless of any "personal data" concerns it may have.[2013] UKUT 444 (AAC)
HMRC duty to produce documents does not extend to prepare a submission but other measures see para 4(4)[2014] UKUT 182 (AAC)
Late appeals – HMRC can after 1 April 2014 accept a late appeal made before 1 April 2013 – tribunal’s duty and human rights[2015] UKUT 81 (AAC)
Appeals againstdecisions at the same time in respect of consecutive tax years should be heard together. [2016[UKUT 79 (AAC)
Duty of HMRC to notify when final decision made during appeal against initial decision, [2016] UKUT 47 (AAC)
Arriving late at tribunal AK v HMRC [2016] UKUT 98 (AAC)
HMRC admits official error, mishandling of appeals [2016] UKUT 118 (AAC)
First-tier tribunals could accept late appeals after all [2016] UKUT 331 (AAC) VK v HMRC
Inadequacy of HMRC appeal response; MD v HMRC [2017] UKUT 106 (AAC)
HMRC failure to include evidence, onus of proof for disentitlement decision on HMRC. Tribunal duty to scrutinise HMRC case with ‘studied scepticism’VO v HMRC [2017] UKUT 343 (AAC)
Backdating
Backdating more than three months for refugees is not discriminatory and cannot be considered by a tribunal under Race Relations Act, self-employed people should make ‘protective claims’; CTC/591/2008
Bar on backdating CTC for claimants with IS/JSA for children, whether ultra vires/breach of human rights; CSTC/326/2005
- Tax Credits Act (Transitional Provisions) Order 2005 s.7 excludes entitlement to CTC at same time as entitlement to child premiums in IS/JSA
- This is not ultra vires or in breach of human rights, even if due more CTC than IS/JSA
Backdating for refugees & asylum support: CTC/3692/2008
Backdating following grant of asylum dates back to earliest claim for asylum CTC/0414/2009 (CF/0084/2009)
Backdating WTC where claimant receives disability benefit – even if otherwise eligible for WTC but income too high. [2014] UKUT 221 (AAC)
Childcare Costs
Cannot be paid for compulsory schooling (where school fees included after-school club at no extra cost); CTC/3646/2007
Restriction to approved childcare (even when not available for severely disabled child) is not breach of Human Rights Act; R1/07(TC) (NI case)
Childcare 4-week run-on and stopping work 4-weeks run-on are concurrent, not consecutive. [2013] UKUT 484 (AAC)
Reasonable grounds shown for childcare investigation[2016] UKUT 63 (AAC)
Evidence of childcare costs – collusion – contrived arrangement may be genuine and legitimate; s16 & defective s18 decision [2016] UKUT 404 (AAC) NA v HMRC
Child care costs - no restriction on number of hours or requirement that costs must be proportionate to income; Failure by HMRC to produce all relevant evidence on appeal[2016] UKUT 441 (AAC) SK v HMRC
Provision of child care outside the UK – not eligible under domestic legislation but refusal would contravene EU law NB-v-HMRC (TC) [2016] NICom 47
Evidence requirements for childcare costs; inadequacy of HMRC response and failure to provide reasons for not accepting evidenceMD v HMRC [2017] UKUT 106 (AAC)
Claimant is responsible for checking childcare provider is registeredVH v HMRC [2017] UKUT 128 (AAC)
Claims & Decisions
Section 16 & 18 decisions; Appeal against a revised decision under Section 16 is redundant once a final decision under Section 18 is made and separate appeal required. CTC/2662/2005 & CTC/3981/2005 (heard together)
Decisions, useful discussion of Revenue’s poor notice of decisions and confusing ‘award’ and ‘entitlement’; CTC/2113/2006
Decisions, where HMRC could not produce actual decision, tribunal should not refer to revision/supersession under Social Security Act 1998 – decision contradictory and not properly articulated – referred back to HMRC; CTC/2576/2004
On-line application, whether constitutes a claim. It did; R(IS)3/05
Requirement for a claim – tax return not sufficient; Judicial review sufficient remedy re: refusal to accept a claimCTC/0031/2006
Whether a decision that no claim made is appealable; comment re right of appeal against decision on good cause for late declaration; CTC/1023/2010
HMRC decision has so little coherence or connection to legal powers as not to amount to a decision [2015] UKUT 303 (AAC)
Relationship between s16 & s18 decisions, ‘expectation of payment’; [2016] UKUT 399 (AAC) RF v HMRC
Whether an appeal under s16 Tax Credits Act lapses when a decision under s18 is made.[2016] UKUT 407 (AAC) JY v HMRC
"SLAN ("Statement Like an Award Notice") is not appealable" [2016] UKUT 505 (AAC) DG v HMRC
"Statement Like an Award Notice" (SLAN) issued by HMRC treated as section 18 decision to ensure Tribunal has jurisdiction to address claimant's grievance [2016] UKUT 512 (AAC) TM v HMRC
‘Reasonable grounds’ for revising a decision & working hours; claimant paid less than minimum wageME v HMRC [2017] UKUT 227 (AAC)
A section 16 appeal to the First-tier Tribunal lapses when a section 18 decision has been made. LS and RS v HMRC (TC): [2017] UKUT 257 (AAC)
Couple/single claims
(See also Undisclosed partners)
Couples and single persons, claims are mutually exclusive; CSTC/724/06
- No power to treat one as the other – must make separate claim
- no discretion to split award; CTC1686/2007 (paper only)
Couples, trial separation – whether “likely to be permanent”; R(TC)2/06
- “Tribunals should be slow to differ from claimant’s own genuine assessment of likelihood of reconciliation”.
Couples, whether living together as;
- Tribunal should refer to factors considered in social security by R(SB) 17/81; same household, stability, financial support, sexual relationship, children and representation to others. CTC/3864/2004
- “the concept of living together as husband and wife is not defined in the legislation. There appears to be no dispute that it is appropriate to use the guidance provided in Commissioners’ decisions in relation to other benefits in considering such questions when they arise in relation to tax credits;” CTC/3059/2004
- Divorcing couple under same roof [2012] UKUT 230(AAC)
Couples, non-appellant joint claimant has right to a fair hearing; CTC/2612/2005
- Useful comments re failure to show decision
Couples, earnings of partner before became member of couple; CTC/2270/2007
Whether income for a full tax year properly taken into account in calculating entitlement of a couple who separate during the year; CTC/1699/2009
Married couple may be separated in circumstances that are likely to be permanent even if in same household. [2013] UKUT 631 (AAC)
Joint financial arrangements - "financial footprint" following separation of married couple[2015] UKUT 507 (AAC)
Separated couple living under same roof – inadequate submission [2015] UKUT 407 (AAC)
LTAHAW test cannot apply to persons who are married to each otherKD-v-HMRC (TC) [2016] NICom 56
Married couple: continuing friendship and support do not necessarily indicate that a separation is likely not to be permanentSA v HMRC [2017] UKUT 90 (AAC)
Disability Element
Backdating more than three months applied only where notification made of a claim for DLA;CTC/1594/2006 & CTC/2878/2008[1]
Telephone claim for DLA adequate notification to DWP of change of circumstances for child tax credit purposes (old rules); CTC/720/2010
Disability element, DLA in payment for part of year - not entitled on any day for which DLA was not payable; R(TC)1/06
Qualifying conditions and joint claims;Worker must satisfy conditions for disability elementCSTC/76/06
Notification of DLA for child – HMRC’s policy of retaining documents/transcripts for 5 years [2013] UKUT 0530 (AAC)
Passporting - mere receipt of IB sufficient for disabled worker element, even if overpaid (but this does not apply to ESA)[2015] UKUT 286 (AAC)
Education
Interruption, previous study abroad; CTC/1518/2009
‘Foundation learning’ in England & Wales included in definition of FTNAE or approved training[2015] UKUT 166 (AAC)
Family Element
Family element, meaning of ‘child tax credit paid at a higher rate than’; CSG/607/04 & CSIS/724/04
Rounded-up daily rate x 365 does not count as being higher than annual amount. There is no baby element, just a higher rate of the family element; CIS 2343/2009
Income and tax credits/overpayments
Overpaid tax credits is treated as income for HB/CTB purposes until such time that an overpayment decision is made and the claimant informed that it is recoverable; CH/1450/2005
Overpaid tax credits is treated as income up to the date of the demand for repayment; CIS/0647/2007
Overpaid tax credits not treated as income if client has notified Revenue of change of circumstances; CIS/1813/2007
Actual amount of child tax credits after recovery, not maximum entitlement, during transition period; CIS/1064/2004
Income from date paid, not date of change; CH/653/2009 (paper only)
When working tax credit is to be taken into account for income support. Importance of distinguishing awards of tax credit and entitlement to tax credit CIS/2761/2008
LA error in processing TC info; CH/2615/2010
Official error
Award and entitlements decisions whether decision incorrect by reason of official error (disabled child element). [2013] UKUT 519 (AAC)
Official error disabled child element – claimant contribution if failure to correct HMRC error [2015] UKUT 345 (AAC)
HMRC admits official error, mishandling of appeals [2016] UKUT 118 (AAC)
Penalties
Correct approach [2016] UKUT 238 (AAC)
Remunerative work
Effect of Parallel HMRC Decision; CSIS/55/2009
Work in expectation of payment; CTC/244/2008
“Normally working” 16 hours per week CTC/2103/2006
- not correct to calculate the number of hours worked in a fluctuating situation by averaging hours across a monthly payslip
- no requirement in the legislation that 16 hours be worked every week
- no set, or hard and fast, rule for deciding the number of hours worked
- It is a question of fact in each case.
Couples, no effect on claim or failure to disclose where one member of the couple stops work and the other starts work – no break in entitlement; [2013] UKUT 325 (AAC)
Remunerative work – street entertainer self –employed (old definition)[2015] UKUT 317 (AAC)
Treated as in work during periods of sickness; No longer treated as in remunerative work on ESA after 28 weeks of SSP TK v HMRC [2016] UKUT 45 (AAC)
Expectation of payment; use of hindsight for self-employed [2016[UKUT 79 (AAC)
Self-employment working out at £37.83 a week not genuine and effective, also unauthorised work did not count for right to reside[2016] UKUT 252 (AAC)
Four-week run-on followed by maternity allowance – not treated as in work for latter periodAG v HMRC[2017] UKUT 67
Residence issues
Adjudication of claims following grant of asylum – deduction for asylum support CTC/3692/2008
Entitlement following grant of asylum dates back to earliest claim for asylum CTC/0414/2009 (CF/0084/2009)
Whether education outside UK counts for linking treatment; CTC/1518/2009
Whether the conditions of entitlement to the 50 Plus element involve unjustified discrimination against migrant workers; CTC/1180/2009
Whether CTC payable to parent in EC country; at that time no because it was not a family allowance covered by Article 77 of Reg 1408/71 [2010] UKUT 323 (AAC)
Whether CTC payable in Iceland; [2012] AACR 18ws.doc
Married couple - Incapacity benefit recipient entitled to claim family benefits despite residence condition; CTC/2107/2010
Ordinary residence in UK while working in Spain – claimant not absent for more than 8 weeks at a time.[2014] UKUT 251 (AAC)
Unauthorised employment does not count for right to reside, and self-employment working out at £37.83 a week not genuine and effective [2016] UKUT 252 (AAC)
Working hours; claimant paid less than minimum wage - nothing which excludes work that is paid at less than the minimum wage frombeing qualifying work for working tax credits purposes. However, it is likely to beappropriate for a decision maker to take as their starting point theassumption that an employer would not be acting illegally and wouldbe paying their employee(s) the national minimum wage.ME vHMRC [2017] UKUT 227 (AAC)
New definition of self-employedJF v HMRC (TC) [2017] UKUT 0334 (AAC)
Self-employment with earnings below minimum wage may be remunerative workVO v HMRC [2017] UKUT 343 (AAC)
New self-employed definition came into force on 6 April 2015 and does not apply to previous tax years IW v HMRC [2017] UKUT 345 (AAC).
Responsibility for child
competing claims procedure; CTC4390/2004
- Robust tribunals should hear both appeals together
- Tribunal can make own decision to replace Revenue decision
- Decision can take into account which of the claimants would be entitled to a greater amount – greater advantage to the children as assisting children is the main purpose of Tax Credits Act
- Tribunal can consider any other relevant issue
- Separate decisions required to allow one claim and end another
competing claims - tribunal’s failure to summon wife not in breach of duty to act inquisitorially; CTC 2090 /2004
- It is for HMRC to obtain such information from the wife as may be relevant to decide claim
Main responsibility test, school hours CSTC/475/2008
Couples, competing claims – payment to main carer / failure to implement provision to split CTC is not discriminatory, tax credits are possessions under HRA; CTC/2608/2008, [2012] AACR 46 (UKSC)
Responsible for child and child care credits- Proper application of "main responsibility" test. CSTC/299/2010,
No presumption that the HMRC decision should stand; [2013] UKUT 297 (AAC)
Practice on appeal by unsuccessful parent - adding successful parent to a respondent. [2014] UKUT272 (AAC);
'Normally living with test' - terms of residence order under Children Act 1989 not decisive.[2013] UKUT 561 (AAC)
Main responsibility test – no backdating or overpayment prior to date test applied [2014] UKUT 533 (AAC)
Main responsibility test – no overpayment where both claimants paid but decisions not revised. [2016] UKUT 47 (AAC)
Main responsibility test overview: time alone not determinative [2016] UKUT 216 (AAC)
Undisclosed partners
Inadequate indication of what evidence required – could not reasonably be expected to provide it – no adverse inference [2014] UKUT 383 (AAC)
HMRC must show reasonable grounds to revise decision under section 16[2014] UKUT 543 (AAC)–
Onus on HMRC to justify re-opening award [2015] UKUT 192 (AAC)
HMRC failure to produce documents [2015] UKUT 198 (AAC)
Appeal responses should have complied with Tribunal Procedure Rules [2015] UKUT 369 (AAC)
HMRC & FTT failed to deal with clear evidence of single parent status [2015] UKUT 394 (AAC)
Plausibility – inappropriate to apply standard of ‘reasonable person’ [2015] UKUT 397 (AAC)
Burden of proof on termination of existing claim is on HMRC, shared care and presumption [2015] UKUT 490 (AAC)
No evidence from HMRC – claimant unable to attend due to illness - penalty overturned [2015] UKUT 580 (AAC)
‘Financial footprint’ complete failure of HMRC to ask the necessary questions before making its decision.AK v HMRC [2016] UKUT 98 (AAC)
[1] No longer applies after 6 April 2009 - regulations amended by S.I.697/2009