Refugees (inc HRT issues) | CPAG

Refugees (inc HRT issues)

JR15 FileFailure to offer a UC ‘new claim advance’ – refugee(last updated October 2019) See below note on new claim advances. 

JR14 Incorrectly required to meet HRT for UC – refugee (last updated March 2019)

JR57 Refusal to accept retrospective tax credit claim following grant of refugee status (Letter removed. CPAG are looking for clients, see below.)

Please get in touch if your client is refused backdated Child Benefit under equivalent provisions, this should be appealed and CPAG can provide a template to assist you jrproject@cpag.org.uk  

JR7 UC incorrect requirement for a NINo – refugee (last updated October 2019). 

JR13 UC incorrect requirement for a NINO – partner of a refugee (last updated October 2019)

CPAG are monitoring NINo requirements. See NINo templates page. Please let us know how the DWP respond to these NINo letters: jrproject@cpag.org.uk

 

REFUGEE RETROSPECTIVE TAX CREDIT CLAIMS

Call for clients

CPAG are seeking permission to judicially review HMRC’s refusal to award child tax credit for the period between a refugee’s claim for and award of refugee status, where:

  • Asylum was first claimed before February 2019
  • A telephone call has been made to HMRC within one month of notification from the Home Office of refugee status or s.67 leave (for relocated children) and your client has stated "please treat this phone call as a claim for tax credits"

If you have a client in this positon, please contact: jrproject@cpag.org.uk as soon as possible. 

Entitled to CTC

Under reg 3(4)-(8) of the Tax Credits (Immigration) Regulations 2003 where a refugee or a person granted leave under s.67 of the Immigration Act 2016 makes a claim for CTC within one month of receiving notification of their status, their CTC claim will be treated as made on the date they first claimed asylum in the UK and each subsequent April. HMRC maintain it is no longer possible to make a claim for tax credits because Universal Credit has been fully rolled out. CPAG disagree.

Amount of entitlement 

Under CTC/3692/2008, Asylum Support (NASS) payments received by both parents and children are offset from any backdated CTC that is due. CPAG are considering whether it is possible to challenge this decision.

CPAG also understand that NASS payments are often not consistent while waiting for a final asylum decision. NASS support depends on an application having been made for it, ends when an asylum appeal is lost, and section 4 support (for those refused asylum who are destitute) if received, is not offset from CTC. Any periods between asylum claims, or where NASS is not applied for, will not therefore have NASS offset from the CTC award. Many claimants who have received partial NASS support will therefore be eligible, even if CPAG's challenge to CTC/3692/2008 is not successful.

Lone parents with 2 or more children, or couples with 5 or more children (whose claims pre-date the benefit cap) should always be entitled to some CTC even if the whole NASS payment is offset.

The maximum period your client should claim for is between the date of their first claim for asylum, and their subsequent claim for Universal Credit (if UC has now been claimed). NB, entitlement might end earlier, for example if a qualifying young person left full time education before UC was claimed.

Protect your client's position: appeal 

If we are successful, how can you ensure that your clients will benefit?
     a)    HMRC are not recording telephone calls where a client phones up to claim tax credits, or request a claim form, and HMRC say ‘you cannot make a claim’. The only way of evidencing this is therefore to confirm the call in writing (and send a claim form).
     b)    The anti-test case rule is likely to prevent any appeals being brought on the same issue on decisions not to award CTC once a Tribunal decision has been received.  
     c)    Any appeals brought may be stayed behind CPAG’s action, and once the CPAG’s case is decided, any decision made in line with it.  
     d)    To protect your clients position, our advice is therefore:
                Phone HMRC within one month of notification of refugee status and state ‘please treat this phone call as a claim’.
                Send a claim form and covering letter requesting backdating etc on the same day, confirming that your client has claimed by telephone and you are supplying all the information needed to enable HMRC to calculate their entitlement, by recorded delivery if possible.
                Contact CPAG. We are looking for clients who are within one month of their asylum decision and who have called HMRC.
                Seek a mandatory reconsideration of the telephone decision, within one month of the telephone call. You may in this time receive a written ‘decision’ from HMRC which also says ‘you are not able to claim tax credits’.    Your MR request should challenge both ‘decisions’.  Ask for a response within one month. If you are outside one month to seek a mandatory reconsideration, seek a late mandatory reconsideration explaining the delay. One reason for which may be that you were not advised of your appeal right.  
               If no response is received, or a response is received confirming the decision, appeal. You may need to persuade the court to accept the appeal without a MRN, see below. It is important to put in an appeal to protect  your client’s position, for the reasons described above.  Note, there is an absolute time limit of 13 months to lodge an appeal (see p1553 of the 2020/21 CPAG Handbook). The reasons for lateness will need to be explained if it is late. We think it is unlikely many people will be outside the 13 months, but if so, please get in touch to discuss further.  

These steps will ensure that if CPAG’s challenge is successful, your client should receive the tax credits they are entitled to for the period they were waiting for an asylum decision

Resources

•    claim form (albeit for a previous year)
•    template mandatory reconsideration request (last updated 29 July 2020) NB CTC period: date of first asylum claim - subsequent UC claim
•    template request to the Tribunal to accept an appeal without a mandatory reconsideration notice, please get in touch, and  
•    template First-tier Tribunal appeal submission,  please get in touch

See also:

Tax credit mandatory reconsideration form
Appeal form
HMRC Form of Authority

DWP Guidance on UC advances

If your client asks for a UC advance, and it is not considered, please let CPAG know by emailing jrproject@cpag.org.uk.

DWP Guidance confirms that a UC advance can be paid before a NINo is received.

NINo staff guide: Completing the eDCI1 form (scroll down to guidance - Published 13 December 2016). This states:

Payments of short term benefit advances and of benefit without a National Insurance Number or with an unverified National Insurance Number

24.Where applicable, Short Term Benefit Advances (STBAs) might be considered for customers with no National Insurance Number (NINo), or who have applied for a NINo but whose identity has not yet been verified, providing they meet the STBA eligibility criteria. Included in this criteria is that they must be likely to be entitled to the benefit in respect of which the STBA is applied for.

DWP also published specific guidance: Claiming Universal Credit and other benefits if you are a refugee in October 2019:

National Insurance Number (NINO)

You do not need a NINO for your benefits claim to be made but if you do not have a NINO you need to tell DWP at the start of your claim.

DWP will apply for a NINO on your behalf as part of your claim for benefits. You do not need to apply for a NINO yourself.

Advances

Your asylum support payments will end after 4 weeks. If you need help to pay your bills or cover other costs while you wait for your first benefit payment, you can apply to get an advance.

The most you can get as an advance is the amount of your first estimated payment and you’ll need to pay the advance back from future benefit payments.

 

PLEASE TELL US HOW DWP / HMRC / RELEVANT LOCAL AUTHORITY RESPOND

By emailing JRProject@CPAG.org.uk

This helps us keep the letters up to date and effective for other advisers.