We have a client who receives Tax Credit.
They applied for DLA for one of the children, which has been awarded after a lengthy appeal (over 1 year).
DLA has been backdated.
The client should now be entitled to the disabled child element, worth almost as much as the DLA they are getting.
HOWEVER the tax credit rules seem to say that it can only be backdated beyond the normal 3 months if the client has actually applied for the element and been refused.
There is no way to apply for the element seperately. The form only asks whether the child is DLA, to which they would have ticked no. The notes to the form do state that they should have sent a seperate letter with the form.
Clients required an interpretter at interview, and was not actually likely to read through the guidance notes, when nothing on the form indicated that there was any complication there.

As they applied for the Tax Credit themslves we do not have the full details of their claim. It is not clear whether the first claim was before or after the DLA form was submitted.

Does anyone have any tips on asking for a full backdate ?

How reasonable are the requirements ? Are you really meant to read right through the guidance notes, as opposed to using them as guidance when you need help completing the form ?

It seems so unfair that this family should miss out, when they should never have had to go to appeal in the first place.

Thank you to any one who can comment on this.

When I saw this Victoria I thought naw! thats not the way the rule works. Its supposed to work the same way as for IS. However, after checking the guidance

http://www.hmrc.gov.uk/manuals/tctmanual/TCTM06104.htm

and then the reg

http://www.opsi.gov.uk/si/si2002/20022014.htm

these actually do say the original claim include a claim for the disability element!. Thats not only bizarre its a load of b******s.
How in heavens name can you claim for the disability element when you can't predict the outcome of the DLA claim. And if you did attempt to claim the disability element when not entitled to it their fraud compliance would bungee on you from a great height.

Stick the claim in. I think you'll get the disability element paid.

But then again, we are talking Tax Credits

Got to agree with Semitone - yes even the ******** bit!!

Put the claim in and see what happens - could be an interesting appeal if it's refused!

How about contacting the MP to let our legislators know what they've unleashed?
Are you thinking what we're thinking?

I'd be banned if i put what i really think of tax credits on here!!

******* ******* *****!

Nice to know everyone feels the same about this one. We were certainly muttering and indignant.

How much can they rely on saying that the client should have read one small paragraph in the 56 page guidance notes (page 15), when nothing on the actual form indicates that there is any confusion there ?

Could anyone actually sit down and read the guidance ? (Who isn't an adviser).

And how to they get away with this ? It is yet another area where they offer so much less protection to people than Income Support.

I have to go now, as I am beginning to foam at the mouth.

Problems with getting backdated disabled child element have been raised with the Revenue at the national consultative meetings and we have managed to get this as one of the topics that a few of us are going to work on in a sub-group, on which I will participate with DWP and Revenue reps. My understanding was that if one notified the decision within 3 months there could be full backdating of the element, even if the DLA claim had been made quite some time earlier. We had identified this as not always happening and will be following up why. Another issue is how notifications of DLA decisions from DWP are actioned by the Revenue. We're hoping to look at all the processes in detail and I'm optimistic that we may finally make some progress on this issue. I'd be grateful if people could email me any examples of claimants who have missed out on this element, giving the reason and details of Revenue response/action. Thanks. My email is jane.hayball@greenwich.gov.uk

Who draughts these bloody regulations? Are you smoking what they're smoking?

I cannot remember how the paper claim form is worded but I have just checked the online claim form and the question reads "is there anyone in your household, including children, who is disabled". There is then a yes or no box to tick.

Section 4(1)(a) of the Tax Credits Act states "Regulations may -
require a claim for a tax credit to be made in a prescribed manner and within a prescribed time".

Reg 8(2)(a) of the Tax Credits (Claims and Notifications) Regs (in deciding when a claim should be treated as made) states: -

"a claim for working tax credit including the disability element ('the original claim') was made by a person or persons".

Thus the prescribed manner is a claim which includes the disability element. But what does that mean? To me ticking the yes box on the above question puts the IR on alert that the disability element may be in issue. I would therefore argue that the backdating regs are indeed satisfied.

If Reg 8(1)(a) dictated that a separate notification needed to be sent to the IR stating that it was intended that the disability element was to be claimed, then Reg 8(1)(a) may therefore be ultra vires section 4(1)(a).

However, I don't think that Reg 8(1)(a) does dictate that, given the above question on the claim form.

That 'are you disabled?' (or any member of family) question is easily the worst part of the claim form.

It's interesting to look at it from this angle. I had a client with learning difficulties who had ticked 'yes' to that question (he was not on DLA).

I went through the qualifying criteria for the diasbility element of WTC with him with a fine tooth comb (which he did not satisfy), one syllable at a time (there were a lot of syllables to go through), and then said, 'After hearing all that, and agreeing all that, are you disabled?'

'Yes'. He is disabled, but he is not for the purposes of tax credits. But the question is so awful, he never stood a chance. And contesting the resulting overpayment decision we never stood a chance because page 367 of the guidance book tells you what the question means, so it's not their fault.

If you don't ask the proper question you can't expect people to give correct answers.

The questions should be in full: were you getting STHR or LT IB in a day in the 26 weeks preceeding your TC claim, are you getting DLA, have you claimed DLA but have yet to receive a decision, has a child got DLA, has a child claimed DLA but is awaiting a decision.

I think they should hang their heads in shame. Those that haven't rolled, that is.

Spot on Andrew.

Regards
Paul

The paper form that I have been looking at is slightly more clear.
It asks whether the adult claimants are disabled, and says to "see note" but for each child there are only boxes to tick for those in receipt of DLA, highest rate care of DLA, or who are registered blind... and it does say "see notes page 14" - where it says to send in a seperate letter.

I could only find this years form to look at, so it may have changed since the client completed it. (or is the online form just different ?)

Yeah, funny that Victoria. The question begs itself, why are the two claim forms different?

Paul

I phoned today for one of my clients ,she was awarded DLA for 3 of her children backdated to 24/11 I was told that backdating for the tax credits was only for 3 months and that for any period previous to this I have to write in with a backdating request.
I tried as well to explain that there was an existing claim in for the whole period, to no avail.

I seem to remember that on one of the second wave of roadshows the "presenter" stated that people should be encouraged to make what he called protective claims ;explaining that once the claim was made the change in circumstances for disability would than be backdated all the way even if the person had not qualified for tax credits at
the time. So I cannot see why there should be a problem with changes to existing awards

I thought I just let you know that nothing has changed yet on the helpline I'll probably will e mail with full details in confidence so it can be reported.

I could not beleive that clients were expected to notify Tax Credits of a ""possibility"" that DLA might be awarded. But I looked and would you credit it heres the little gem:

"3(a) a notification was given of a change of circumstances which might result in the person or any of the persons by whom the claim was made becoming entitled to the disability element or the severe disability element of working tax credit".

Reg 26A Claims & Notifications Regs

Small pause while I bang head on table and wipe away tears.

The claimants are now expected to be prescient to the point of being psychic. 3 seperate regs dealing with backdating dis/sev dis elements- Regs 8 26 and 26A. Why couldn't they just take a leaf from the IS Regs or better still let someone from the DWP do it for them.

I'd say I've seen it all but for a nagging feeling there's more to come.

Semitone

The problem seems to be more fundamental than that.

Regs 8 and 26 (and/or 26A) need to be read together and merely mirror Reg 6 of the SS (Claims and Payments) Regs, in that a claim for the relevant benefit and the qualifying benefit need to be made at the same time and a further claim (for the relevant benefit) needs to be made within 3 months of the award of the qualifying benefit to get full backdating.

What is different for tax credits is that it seems to require separate notification (apart from the basic claim form) for the disability elements to be claimed, as well as the DLA claim. The equivalent for IS/DLA would require the basic claims for IS and DLA and then a separate notification for a claim for the disabled child premium in IS, which is absurd.

A completely unnecessary burden on claimants and a completely unnecessary layer of bureaucracy, and, as you say, would require an insight into the system by claimants bordering on the psychic.

Regards
Paul

I recognised the difference Paul but just can't beleive its there. Then to find another condition that if you include a little note/missive to the effect that you might, emphasis might, become entitled to DLA at some future date in time then you can have the element concerned, well thats just icing.

Its ridiculous to put the onus on the client in this way but if its there and to be dealt with then then maybe the least the Revenue could do is include a question on the claim form "have you claimed DLA and awaiting an answer". But then maybe that would be too simple and obvious.

Could an argument be made that a claim to benefit or tax credit is a claim to any part or element of that benefit to which you might be entitled and ergo initial decision not to award dis. element a recognition that element has been looked at as part of the claim and not been awarded.
My head hurts
Where's the Ibuprofen

Maybe we should just put a note in with every claim stating that it's just possible that maybe sometime in the future some member of the family might possibly become disabled and that just maybe when this happens we might make a claim for DLA and that this might be awarded and that maybe then they would possibly like to consider disability element. Should be suitably vauge enough for them!

I seem to recall that DMs are supposed to follow the rules of 'natural justice', and would hope that IR tax credit goblins would do the same. I know as a legal argument it's got no regs to back it up, but any mileage in it?