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No, the test is very different, if the two people are married or in a civil partnership (as in this case). In social security, the key factor in such cases is membership of the same household. In tax credits land, household is not mentioned. Unless a court order applies, the two people must (i) be separated, and (ii) the separation must be likely to be permanent.
I do not think that planning to separate is the same a s separation. Besides having to figure out what separation means for the purposes of tax credits (could be in same property, but large scope here for Revenue assumptions etc), probably more problematic is estimating the likely permanence etc. The abovementioned Low Incomes Tax Reform Group item looks at this. There is also some useful case law. here are 4 paras from CTC/1630/2005....
13. ‘One has only to look at these provisions to realise that they create impossible problems for a couple who are separated in circumstances in which there remains a serious possibility that the separation may not be permanent. One may consider that they are likely to get together again, while the other may consider that very unlikely. A family therapist or counsellor may have a different view from one or both of them, and the Inland Revenue or a tribunal on an appeal after the event may also approach the matter from a different perspective. How, in those circumstances, are the couple, or one of them, to know on what basis to claim? If they misjudge, they may lose the tax credits to which they would undoubtedly have been entitled if they had claimed on the alternative basis.
14. Further the situation requires re-assessment on a weekly and even daily basis. If, at any point a separation becomes likely to be permanent, entitlement to a tax credit based on a joint claim ceases automatically and a new single claim would have to be made. If a reconciliation becomes more likely, in the case of a single claim, then entitlement would cease and a new joint claim would have to be made. Prospects of a reconciliation could fluctuate from day to day and week to week, as could the assessment of the prospects by both the parties and disengaged bystanders, such as the Inland Revenue or a tribunal. A situation could at least theoretically be reached in which, in order to ensure that the claimant(s) get the tax credits to which they were entitled, fresh claims would need to be completed daily on both the joint and single basis, leaving somebody to work out afterwards which, on the same daily basis, was the correct approach.’
When discussing how to assess each case on its merits, the commissioner says…
18. While each case must turn on its own facts, it is important to bear in mind that married couples do not separate unless there have been serious problems in their relationship, or other problems, such that continuing to live together becomes unacceptable for at least one member of that couple. Before any conclusion can be drawn other than that the separation is likely to be permanent, the tribunal must consider why the separation has occurred, and what indications there are that the couple may be reconciled. Even then, after balancing those indications against any contra-indications, the tribunal must conclude that there is at least a 50 per cent chance of a reconciliation before it can conclude that a single claimant and his or her spouse are to be treated as a married couple. It is unlikely that such a reconciliation will occur before the parties have taken steps to deal with the problems that led to the separation in the first place, and have actually begun the process of arranging to live together again. A tribunal should be slow to differ from the claimant’s own genuine assessment of the likelihood of a reconciliation, although, of course, that is a subjective assessment and the tribunal is not bound by it.
Finally, the commissioner made observations concerning the financial arrangements of the two people…
21. Further, given the findings of fact as to the financial problems which had been created by the claimant’s husband, I do not find it surprising that, as between a couple who plainly wanted to keep on good terms for the sake of the children, the husband’s wages continued to be paid into the claimant’s bank account to ensure that the family finances were properly taken care of. Finally, I am wholly unable to see how the fact that the claimant did not know where the husband was living…could possibly indicate that the separation was likely to be only temporary.
You can download this case at:
www.osscsc.gov.uk/aspx/view.aspx?id=1952
Enjoy!
Steve
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