CHILD TAX CREDIT

[ajani]

I will be glad if somebody can kindly respond to my query. I am in the UK under the HSMP program and have the condition 'No recourse to public funds' on my passport.

Sometimes in 2002, i applied for and was granted Child tax Credit as i did not find this on the list of public funds.
On the 16th March 2005, i discovered from Immigration web site that this has now been placed on list of public funds.

I sent a letter by recorded delivery to the Tax Credit same day informing them of my situation and seeking their advise. Several weeks later and after making more than twenty phone calls, there was no reply to my letter.

I tried again and explained to the person who answered the call that i will like a clarification, she then gave me another departmental address and advised i send a reminder.

I did this and received a letter sometimes in June that my query will be looked into.

I received a call yesterday to inform me that the Tax Credit will be stopped and i will have to refund all the money i received as it was paid in error. I told the lady Child tax Credit was not public funds when i applied, she said she agrees with me and she tried to convince the department handling it about this. She said their argument was that this was listed under a different name. She advised that i should protest the refund and that i do not deserve to pay the money back. She also said she is sending me a cheque for £30 which has nothing to do with tax credit but to compensate for the delay.

I intend to protest this payment after receiving an official letter on the basis that,

1-Child tax credit was not on the list of public funds when i applied and the application form did not indicate that applicants subject to immigration control are prohibited.
2-if it was under another name, this was not known to me, how is it that this was clearly stated on 15th March 2005 if it was already on the list.It was clear to the Tax Credit office that i am subject to immigration control as this was included on my record with them which i printed off their website.
3-the payment ought to have been stopped on receipt of my letter dated 16th March 2005. The letter was confirmed to have been delivered by Royal mail and i have today requested for proof of delivery.

This is my case, i will appreciate further advise and comments. Thank you all.

[John]

This is actually quite a complicated issue. Let's look at it is stages. Firstly, should you really have made a claim in the past? Very relevant to that is The Tax Credits (Immigration) Regulations 2003. A look at that will show that it lists five Cases. Do you happen to be within any of those cases? By the way, what is your nationality? And indeed the nationality of your wife/partner? Nationality will be relevant to Case 5. (Also relevant to Case 4 but that only applies to Working Tax Credit claims.)

Or might it be the case that whilst you have a restricted visa your wife/partner does not? Has ILR for example? In which case Regulation 3(2) comes to your rescue.

Underlying all this is not whether Tax Credits were on the Public Funds list at the time, because they were not, but whether some detailed regulation should have stopped you claiming, irrespective of Tax Credits not being on the Public Funds list.

So having delved through those details regulations there are two possible answers ... yes you can claim .... in which case that needs to be pointed out to HMRC ... or alternatively those regulations say you are not entitled to claim. In which case other aspects come into play.

If no, you should not have claimed :-

The original Tax Credits application form ... there is a question "Are you subject to immigration control?" Assuming that to have been answered truthfully then if the Revenue commenced paying you that seems like an error on their part. I'm guessing that before today you had never read the detailed regulations mentioned above, and therefore clearly were not aware of the "small print" stopping your claim.

So HMRC are now asking for their money back. But if that claim for the money back arises because of their error and Government Ministers, aware that £2bn in total has been overpaid and is possibly being claimed back, are facing an almost daily deluge of queries from MPs. Dawn Primarolo, the Minister in charge of HMRC and therefore Tax Credits, has stated that where the applicant made full disclosure of all relevant facts but nevertheless the Revenue still paid money out in error then the money is not repayable.

Nevertheless after giving that assurance in the House of Commons queries still keep coming in from MPs about constituents where HMRC still seem to be trying to get the money back even where it is HMRC fault. The Minister then says that she will look into that particular case.

In short, this is a shambles, but one that is having a real impact upon people's lives. Hopefully this will all be sorted out satisfactorily for you ... without you needing to involve your MP!

Just to reiterate :-

1. your partner/wife's immigration status? Also with a restricted visa containing a "No recourse to Public Funds" restriction? Or alternatively has ILR?
2. your nationality?
3. your partner/wife's nationality?
4. very exceptionally, are you within any of Cases 1 to 3 in the Regulations?
5. (for the record) can you confirm that the "Are you subject to immigration control?" question on the application form was answered truthfully, by you, and also as regards your partner/wife?

Armed with answers to those questions it will be possible to determine whether you should have been getting Tax Credits.

[ajani]

Thank you John for your detailed response to my query. In response to your query,

1-Both i and my wife are Nigerians.
2-My wife does not have indefinite leave, she is infact on dependant visa.
3-the application for Child Tax Credit was completed online by a staff of the Inland revenue and i was not asked whether or not i was subject to immigration control.

I saw the hard copy of the application form and no where was it asked whether or not the applicant is subject to immigration control. As a matter of fact, i recollect the inland revenue staff asking why i was not applying for Child Benefit and i told her i cannot because of my immigration status.

Like i mentioned in my earlier post, when i assessed my file and my wifes file on the inland revenue website, it was clearly stated as SUBJECT TO IMMIGRATION CONTROL-YES. I actually printed the copies from their website, it therefore meant they were aware that i am subject to immigration control.

It has never been my intention to claim benefits i was not entitled to, and that was why i wrote to them as soon as i found Child Tax Credit on the list. Thank you.

[John]

Adaji, until Tax Credits were added to the list of Public Funds in March this year there was nothing wrong with you getting Tax Credits from the immigration point of view. That is you were not breaching the condition on the visa. And in March when you did learn of the change of legislation you acted with utmost haste to try to get the Revenue to stop paying you. The fact that they did not immediately do so is not your fault, and also as they have paid you compensation for the delay, clearly they acknowledge the delay is totally down to them.

I think ... totally concede that Tax Credit monies paid to you on or after 15th March 2005 should be repaid. 15th March? The date when HC346, a change to the immigration rules, changing the definition of Public Funds, came into effect.

But also ... as regards Tax Credits paid to you earlier .... ask the Tax Credits office to concede that the money was paid to you because of their error and therefore you are not liable to repay the money thanks to Dawn Primarolo's Statement to the House of Commons. See how they react to that.

Won't you be pleased then you and your wife have ILR ... and Child Benefit and Tax Credits can be claimed totally legitimately!

[ajani]

Thank you John, i will keep you posted as things unfold regarding this matter.

[John]

Ajani, it will be worth your while downloading COP26 and also Form TC846.

You will see from "Code of Practice 26" that :-

We may decide that you should not be asked to pay back all or part of an overpayment if :-
• you were paid too much because of a mistake by us and it was reasonable to think your award was right

[ajani]

Thank you once again John. I appreciate this additional information.

[ajani]

Hello Everyone/John,
Last week i got a call saying i should await a letter of request to pay back the Child Tax Credit money.

Today i received another call saying i would not be required to pay back as the mistake was from Inland Revenue.

I was told to expect a cheque for £30 to compensate for the delay. Thanks John for your advise.

[John]

That's great! And especially good that you did not need to fight them to get to that position.

As soon as you get ILR .... make claims for Child Benefit and Child Tax Credits!

[baskey]

That's great! And especially good that you did not need to fight them to get to that position.

As soon as you get ILR .... make claims for Child Benefit and Child Tax Credits!

Hi,

One of my friend's wife is getting child benefits where as she is under spouse visa for 2 years. She is going to apply for ILR next month despite the fact she claimed child benefits. They seems to be very casual about it albeit i told them the restrictions on the visa.

But curious to know from anybody did apply for ILR knowingly or unknowingly claimed public funds.


Thanks,

Regards,

Baskey

[John]

One of my friend's wife is getting child benefits where as she is under spouse visa for 2 years.

Are you sure she is the claimant? Or could be her husband is the Child Benefit claimant and has mandated the money to her?

Or given you use the term "child benefits" are you referring to Child Tax Credit? Because if you are then there is no problem for that couple. This is because a Tax Credits claim is made jointly by a couple living together, and if that couple consist of one person who is not subject to immigration control .... the husband .... and one person who is subject to immigration control .... the wife .... then for Tax Credits purposes only ... they are both treated as not subject to immigration control. In other words a claim by such a couple does not breach the wife's visa restriction.

[baskey]

One of my friend's wife is getting child benefits where as she is under spouse visa for 2 years.

Are you sure she is the claimant? Or could be her husband is the Child Benefit claimant and has mandated the money to her?

Or given you use the term "child benefits" are you referring to Child Tax Credit? Because if you are then there is no problem for that couple. This is because a Tax Credits claim is made jointly by a couple living together, and if that couple consist of one person who is not subject to immigration control .... the husband .... and one person who is subject to immigration control .... the wife .... then for Tax Credits purposes only ... they are both treated as not subject to immigration control. In other words a claim by such a couple does not breach the wife's visa restriction.

Thanks John. In this case her husband is a british and she is only having the restricted visa. child tax credit is coming under the name of him and child benefit coming under her name. In the application forms they just mentioned both of their names ignoring the visa restrictions and now he doesn't want to go deep into this and planning to apply for ILR simply. Will that work or wioll lead to troubles?

Thanks for your reply again.

Bye,

Baskey

[John]

Baskey, not denying that is what you are being told but it is clear from the applications forms :-

• Child Benefit - just one claimant. If that really is the wife then expect the ILR application to be a problem. However if the husband is the claimant then no problem whatsoever.
• Child Tax Credits - for a couple living together - two claimants - and for them, no problem whatsoever.

I heard of a couple recently where the wife with a restricted visa was refused her ILR application, because she personally had claimed Child Benefit. However after a bit of a fight she was given her ILR, but not before many sleepless nights and a lot of anguish.

Also Baskey, the words you use .... "child benefit coming under her name" ... could it be that the husband is the claimant and the money is merely mandated to the wife? Time to pull out the documentation from the Child Benefit office to make sure.

If the wife really is the Child Benefit claimant ... they should get that changed now!

[baskey]

Also Baskey, the words you use .... "child benefit coming under her name" ... could it be that the husband is the claimant and the money is merely mandated to the wife? Time to pull out the documentation from the Child Benefit office to make sure.

If the wife really is the Child Benefit claimant ... they should get that changed now!

Thanks John. The letter from Inland Revenue shows Mr.Xxxxxx gets so much as child tax credit and Mrs. Xxxxxx gets so much as child benefits also she has applied for pension credit which is again a public fund. Neither i nor they don’t know what was mentioned in their application form. I am sarcastic about, how inland revenue or who ever responsible for sanctioning these benefits not bothered to ask for residency status while sanctioning for such a benefits. But it is not an excuse the applicant also should know the rules but in many cases people are not aware of such a rules.

Let me write the feed back here once if she applies ILR next month.

Regards,

Baskey

[John]

i nor they don’t know what was mentioned in their application form.

And of course neither do I but I have just had a look at the Child Benefit application form it includes a question which reads :-

Are you subject to immigration control?
See Notes, page 10

-: and page 10 of the Notes says :-

You are subject to immigration control if your leave to remain in the UK is subject to the condition that you do not have recourse to public funds. You are not subject to immigration control if you are
• a UK national
• a national of another country in the European Economic Area
• someone who has been granted leave to remain in the UK indefinitely (including those with discretionary, humanitarian or exceptional leave to remain)
• someone who has been granted asylum in the UK.

Seems pretty clear to me. Now if she answered "Yes" to that question and the Child Benefit office still paid her then they are clearly at fault. If she answered "No" then she clearly has a problem.

Pension Credit? This woman is aged 60+? And claiming Child Benefit as well????

[baskey]

[

Pension Credit? This woman is aged 60+? And claiming Child Benefit as well????

John,

Pension credit is a years accounted as paid pension contribution ( in her case her periods on child minding is considered as pension credit) and that will help in getting a higher pension at the age of 60 but obvisouly not now! John..

Regards,

Baskey

[John]

Baskey, in the definition of Public Funds, that is not what they mean as Pension Credit ... which is a cash benefit paid to people at least 60 years of age.

What you are referring to is Home Responsibilities Protection, which is rather different, and certainly not on the Public Funds list.