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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2007] UKSSCSC CSTC_724_2006 (22 March 2007) URL: http://www.bailii.org/uk/cases/UKSSCSC/2007/CSTC_724_2006.html Cite as: [2007] UKSSCSC CSTC_724_2006 |
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[2007] UKSSCSC CSTC_724_2006 (22 March 2007)
THE SOCIAL SECURITY COMMISSIONERS
Commissioner's Case No: CSTC/724/06
SOCIAL SECURITY ACT 1998
APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW
COMMISSIONER: D J MAY QC
Oral Hearing
Appellant: Claire Yates Respondent: Secretary of State
Tribunal: Inverness Tribunal Case No: U/05/104/2006/00267
DECISION OF SOCIAL SECURITY COMMISSIONER
Decision
"3(1) Entitlement to a tax credit for the whole or part of a tax year is dependent upon the making of a claim for it."
"3(3) A claim for a tax credit may be made – …
(b) by a person who is aged at least sixteen and is in the United Kingdom but is not entitled to make a claim under paragraph (a) (jointly with another)."
"19(1) The Board may enquire into –
(a) the entitlement of a person, or the joint entitlement of persons, to a tax credit for a tax year, and
(b) the amount of the tax credit to which he was entitled, or they were jointly entitled, for the tax year,
if they give notice to the person, or each of the persons, during the period allowed for the initiation of the enquiry."
"19(3) On an enquiry the Board must decide –
(a) whether the person was entitled, or the persons were jointly entitled, to the tax credit, and
(c) if so, the amount of the tax credit to which he was entitled, or they were jointly entitled,
for the tax year."
"Award finalised/re-finalised"
"You do not qualify for this credit".
"I have completed my enquiry into your claim for tax credits for 2003/04 and 2004/05.
Using the additional information received, I have concluded that from 18 April 2003 you and [JS] were living together as if you were husband and wife.
You will shortly receive formal notification of my decision against which you will have the right of appeal. Any tax credits overpaid since 18 April 2003 will be repayable. Due to a processing/procedural problem the revised decision will show the date of termination as 1 May 2003, the date your original application was received, and not 18 April 2003 the date entitlement was awarded. When the system error is corrected another decision letter will be issued showing the correct date of termination as 18 April 2003.
I may be able to waive some of the overpayment if you can produce evidence of [JS] income from 6 April 2003 to date. I will accept a copy of his P60 for the year ended 5 April 2004 and 2005 or a payslip for each year, which shows the full income for the year, or income details supplied by his employer. Please submit these details by 9 November 2005 if you wish me to apply this waiver."
"HMRC position is that since the claim was made by [the claimant] as a single person she is not therefore entitled to anything. I do not accept that this is either fair or reflects the terms of the relevant legislation.
I have accordingly had regard to the terms of the Tax Credits Act 2002. Section 3 of that Act deals with the making of claims. It envisages that a claim for a tax credit "may be made" (reading the matter short) either jointly by members of an unmarried couple or by a single person not entitled to make a claim as part of a married or unmarried couple.
Subsection 4 provides circumstances in which entitlement to a claim ceases where certain changes of circumstances occur. The section does not, however, specifically deal with or apparently envisage that a claim could be made on one basis but subsequently be discovered to be appropriate only on another. I have also had regard to the terms of section 16 of the Act. This provides a power which is clearly wide-ranging in its nature where the board subsequently have reasonable grounds for believing that the rate at which tax credit has been awarded differs from the rate at which, in fact, the person is entitled, to amend or terminate the award. This power, it seems to me, is clearly wide enough to cover precisely the set of circumstances in this case. In other words, I am of the view that the board had the power to amend her award and determine that entitlement only exists on the basis that the couple should be treated as an unmarried couple for the purposes of the tax credit claim."
"15 …If she was entitled to claim as a single claimant, her award of tax credit should not have been terminated.
16. If the claimant is found to have been part of an unmarried couple, then according to s.3(3)(a) of the 2002 Act, such a claim should have been made jointly. It appears from s.3(1) that entitlement to a tax credit is dependent on the making of a claim for it. The wording of s.3(3)(b) makes it clear that a claim can only be brought under (b) if that person is not entitled to make a claim under s.3(3)(a). The two claims are mutually exclusive. Thus, if the claimant's claim fails under s.3(3)(b) or is terminated for failing to meet the criteria of a single claim, it appears that there has to be a claim under s.3(3)(a) for the claimant to receive an award. Section 3(2)(b) of the Act provides that where the Board have decided under s.16 of the Act (as here) to terminate an aware of a tax credit made on a claim, (subject to any appeal) any entitlement, or subsequent entitlement, to the tax credit for any part of the same tax year is dependent on the making of a new claim. In the absence of a new claim, there would then appear to be no entitlement."
(signed)
D J MAY QC
Commissioner
Date: 22 March 2007