January 2014 - Tax Credits and Early Years E-bulletin | CPAG

January 2014 - Tax Credits and Early Years E-bulletin

Date: 
02 February 2014

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Destitute domestic violence concession

Tax credits staff guidance has recently been updated to cover people from outside the European Economic Area who were in a relationship with a British citizen or a person settled in the UK, and the relationship has broken down as a result of domestic violence. If they originally came to the UK as a partner, they may have ‘no recourse to public funds’ and be at risk of destitution if they leave their partner. Someone in this situation should be referred for specialist immigration assistance to apply to the Home Office for the ‘Destitute Domestic Violence’ concession. Where this has been granted, the ‘no recourse to public funds’ restriction is lifted so that they may be entitled to means-tested benefits, and also tax credits if they are responsible for children.

A reminder also that the Tax Credits Office has a dedicated team who should handle cases sensitively if a claimant has reported domestic violence.

 

Caselaw
 

This section summarises recent decisions of the Upper Tribunal; these set a binding precedent on HMRC decision-makers and First–tier Tribunals in similar cases.

Married couple living in same household but separated

In this case, the claimant made a single claim for tax credits on the basis that she was permanently separated from her husband, from whom she was not divorced and who was still living at the same address due to financial restraints. The law says that a couple for the purposes of a joint tax credits claim includes a man and a woman who are married to each other and are neither separated under a court order, nor in circumstances which are likely to be permanent. The wife and husband went on family holidays and to occasional social events with their children, had a joint mortgage and bank account, shared bills and food. The claimant stated that she had explained the situation at the start of her claim, but over two years later, HMRC opened an enquiry and decided that she was not entitled as a single claimant because they were still a couple. HMRC argued that they shared a household, including financial arrangements, and had stated that in order to change its decision, they would need to see paperwork including legal separation documents. The Judge finds that the Tax Credits Act, Section 3(5A), is focussed on the state of the relationship, not exclusively on whether they live in the same household. The test is not the same as that used in social security law, such as for income support. The decision should have considered all the facts, including the significance of the claimant’s new relationship with another man, which involved active planning for their life together. The Judge takes the view that even if the husband and wife were living in the same household, they were in practice a separated couple. Regarding HMRC’s requirement for documentary evidence of separation, paperwork alone can neither prove nor disprove whether a couple have separated in circumstances which are likely to be permanent.

Read the case in full here: 2013 UKUT 631 (AAC)