I have a client who made a claim for tax credits last year without realising that she tax credits where a public fund. She has no access to public funds because of her immigration status.

Our client went into the HMRC office to make a claim and was helped to complete the form. At no point was she asked about her eligibility because of immigration status and it appears this is not on the form.

Our client this year saw that tax credits are classed as public funds and subsequentley contacted the HMRC and told them.

She then deemed to be overpaid several thousand £'s. Obvisouly our client wants to appeal against this decision. I can only think we argue official error because client not asked about status and question not on form. Also there was no information that tax credits public funds that our client could access.

Any one got any ideas of tackling this case.

thanks

It may also be worth trying to find out when Tax Credits became Public Funds as if they were not on list when your client claimed don't see how they could be overpaid. They were certainly not in list for leave to remain letter I have from January 2004 as this still listed WFTC and DPTC. There was some confusion around the position of TCs this time last year and there was a discussion thread around them.

Statement of Changes HC 346 that added new tax credits to the list of public funds took effect from 15 March 2005

thanks for the info shawn were can i get Statement of Changes HC 346.

was in rightsnet news (March 3 2005) @

Benefits and recourse to public funds: Government introduces new rules

.... and on the home office website @

http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/immigration_rules/statement_of_changes13.html

Seems to me there are a few issues. Firstly, is it fair that a fact can affect legal entitlement, even if it is not probed on a claim form? I think the answer is no its not fair, but there you go.

Secondly, do our colleagues at the HMRC have a duty of care to ensure that a claim they are actually assisting the claimant to make is correct? I would have thought the answer is probably yes, and could be raised in the context of resisting recovery. The changes to the public funds list can only enhance this duty, in my view.

We know that in the world of social security, the long abolished duty to maintain claimant welfare has left us with benefit authorities as passive providers of products which require active claims. I know there has been some helpful case law, but that seems to be the overall picture. The same probably applies to Tax Credits - what a shame.

Steve

I worked briefly for the Inland Revenue in early 2003, processing tax credit claims. There was a question on the form about whether or not the claimant was a British national, and another about whether or not they were in Britain. I remember a lot of people struggled with these, and we spent some time chasing people up to check if Mr John Smith who worked at ASDA (for example) was really not British and not resident. If its possible I would try to get hold of the claim form as she may have indicated on it that she was not British, but the IR then made a mistake in processing her claim.

Thanks for the help.

We have recieved a surprisingly swift response from HMRC and they have acknowledged it was their fault and will not be recovering approximatley £10000.00.

thanks