I feel I could be withdrawing this appeal?

But would like to check anyways.

Client visits office.

He has IB with partner and child additions and a small Income Support top-up at only £15 weekly.

We suggest he claims Child Tax Credit at £100 + for the three children, and backdates this CTC claim three months, giving him a large arrears payment. He would be expected to re-pay the overpaid IS.

CTC only awarded from date of decision (No Arrears), we argue they do backdate but only to date of claim (Arrears £240 paid).

Now at appeal next week.

Tax Credit (Claims & Notifications) Regs 2002 at para 7 seem to allow three months backdating on CTC?

But TCO have used Tax Credits Act 2002 (Commencement no 4 Transitional provisions and Savings) Order 2003: At reg 5 (4) which does seem to say no Tax Credit backdating allowed for people previously on IS, unless you are or have been getting Income Support as a single parent.

Anyone agree or hopefully disagree?

bill

i found it, i read it, and it looks pretty absolute.
but! : )
at the start of the order, it refers to powers under sections 61 and 62 (2) of the Tax Credit Act 2002.

61 is commencement stuff.
62(2) is gobbledygook saying the treasury may by order make any transitional provisions or savings which appear appropriate in connection with the commencement of any provision of the Act.
62 (1) talks about transitional provisions or savings appropriate in connection with the abolition of the increases in section 1 (3) which includes the dependant's rates and family premium etc.

so, i'd guess that the order was made because PODOP-type administrative actions between the revenue and DWP were considered impracticable or the risk of overpayment was too high. but did they consider that income support is a top-up benefit as well as the whole income for some people? Is it appropriate to positively decide to deprive people of a lot of money they would otherwise be entitled to for reasons of administration? did they consider that? and when the purpose of the administration is to deliver legal entitlement? did you see nevip's lovely friday rant? can treasury orders be ultra vires?

gobbledygooked out for now...

jj

Hi JJ

If you look at the reg it is clearly set to match the date that people on PC (Oct 03) with child additions and people on IS were to transfer onto CTC (April 04), so as to stop them backdating and getting paid twice.

However in the case of Income support this transfer did not happen, seems unfair the reg still applies?

I'll read nevips post now thanks

Bill McC

yes. the reg disapplies the normal C & P rules as part of an administrative process controlling a transfer that didn't take place. the DWP haven't previously had the luxury of orders to allow admin. to take precedence over legal entitlement, which doesn't stop it happening anyway. i expect the argument of preventing overpayments carries a lot of weight, but income maximisation is accepted in tax 'culture, so i expect there's been a lot of DWP input in this one.
interesting... good luck.
jj

As expected Lost

Written decision then Commissioners next?

i don't know if you saw the 'totally unfair' thread? it's a perfect example of the detriment caused by this reg.

it would be very interesting to know the reasons the commencement order was made. it looks to me like the revenue is given a lot of devolved power, much more than the DWP lot are used to handling, and i could be wrong, but i'm suspecting quite a lot of DWP input, one way or another.

income maximisation is accepted in tax culture...

the DWP hasn't previously been allowed the luxury of _ legislation_ which gives administrative arrangements priority over legal entitlements, which is not to say that it hasn't taken liberties in practice...

it's looking like these regs as they stand were particularly badly thought out, even if the transfer had gone ahead as planned. that failure just makes it worse.

i think most people can accept that it's reasonable that the introduction of a major new 'benefit' needs to be planned carefully. it's in nobody's interests for it to be chaotic or grossly inefficient, nor grossly unfair. it's not unreasonable for the authorities, with a huge logistical task on their hands to need to exercise some control over the phasing in of the benefit. but the balance of interests is very fine, and there is a question that administrative self interest, dressed up as something else, has gained unhealthy precedence.

tax credits have not some much been phased in as staggered in, with the emphasis on the 'stagger'.

tax credit had an April 2003 commencement date, but transfer and take up arrangements were not 'joined up' to April 2003. who is responsible- the gov't, civil servants, a combination of the two? a bunch of people very well paid for doing ther jobs badly?

who knows. we only know who carries the can.

it's said that it's not for civil servants to usurp the will of parliament. at the same time, senior civil servants need to have the guts to be frank about what they can and can't deliver, and not shirk because their performance bonus depends on having a bullshit 'can do' attitude. "Yes, minister..." (but give us order powers so we can cut ourselves some slack if we need it...and pass the pain downwards...)

i expect that the reasoning put forward for the order will be superficially convincing, but would it stand up to close scrutiny or would it maybe collapse the closer you look at it? perhaps the commissioners would end up with a pile of appeals against this reg, and decide them as a job lot?

steve stringer (see rare and beautiful CD thread) tells me that 'administrative efficiency' was submitted as the argument for depriving his client of her ICA entitlement, and it pisses me off no end. i see this as a major battle-ground. the welfare state wasn't set up for the purpose of creating jobs. if 'administrative interests' win the day, we'll know the menu really has been mistaken for meal,which means we all get to eat cardboard. ID cards prolly.

oh! what happened? i just had a friday rant and it's only tuesday!

bon chance, bill. : )

jj

Hi JJ

Tuesday or Friday it's always good to speak your mind.

I was originally in favour of WTC / CTC, but after seeing the stress, homelessness, ill health etc I have long since changed my mind.

Various so called independent advice agencies and organisations should be ashamed off themselves for doing so little so late.

The problem and continuing problem is the Inland Revenue insist in WTC being April - April, if they had used there head and started it from October - October all claimants would have had P60's showing actual in years income so little chance of any overpayments.

We see dozens of overpayments each week most if not all the result of IR and not claimants.

Local MP is not benefit minded so is of little use although they do try.

Many overpayment we are now seeing are now for this years awards as people continued on the same award from last year until they returned the earnings declaration for the previous year, result overpaid from April 04 - Sept 04.

We keep hoping things will improve.

hi bill

"I was originally in favour of WTC / CTC, but after seeing the stress, homelessness, ill health etc I have long since changed my mind.

Various so called independent advice agencies and organisations should be ashamed off themselves for doing so little so late."

i agree and think a lot of people here would give their voices to a call for major reform. maybe we can do more than hoping things will improve? there's a general election opportunity coming up, after all...

we all have resourcing problems, but what if we ran a thread for a while compiling a list of TC ills in need of reform? many heads are better than one! : ) anybody here could add to it, as and when, and it (with people's TC posts here) could be useful for analysis, debate and knocking into shape for launching an agreed campaign document of some sort...??

i've started off with yours, and added one of my own (oh the restraint!)- let's see how it grows. : )

jj
__________________________________________


starting with
1. problems with April to April tax year.

(maybe annual awards are too cumbersome and lacking in flexibility for a core 'benefit'. what do others think...?)

2. Rigid single/joint claim requirements, resulting in unfairness.

( not sure that 'rigid' best expresses the problems, which probably need more focus...)

3.

3. Callcentre staff who are obstructive, misinformed, poorly trained,occasionally downright bloody rude and superior (not an exhaustive list and not meant to be generally deprecating of the massed throng of thsoe manning the phones)

4. Less than client friendly award-letters obviously designed by the team that broke the Enigma Code

5. Acknowledements that enquires have been received and are being dealt with would be a nice touch

6............

This campaign's already under way:

http://www.litrg.org.uk/news/press.cfm?id=159

Let's support it.

Bill on 04.12.04 you said statement and Commissioner's appeal? Surely yes. Possible article 8 HRA strike down???

in response to gerry's post

it's good news that any campaign to overhaul tax credits is underway and the more voices adding to it the better. CPAG and CAB are supporting this one, and all credit to somebody for doing the work and getting it off the ground. the campaign by this voluntary group reflects to an extent, the nature of the group ( see website) which is predominantly from a tax and inland revenue background.

i feel that the welfare rights perspective on tax credits is a significant one, and i for one don't relish the thought of chipping away at the system for 20 or 30 years on a case by case basis, when the whole system stinks so badly, in its state of newborn glory.

i see a need for wholesale and urgent reform rather than an agenda for improvement, and whilst in no way opposing this commendable campaign, i'm not convinced that it necessarily reflects all that a lot of us are saying, individually or in various organisations, or where we might arrive at, having tossed a few notions around for a while. for example - on POINTS OF LAW - i'm not looking for clarification.

I want confirmation that the normal rules of evidence and the burden of proof apply to the IR. I want confirmation that social security case law will apply on cohabitation...

well...you don't always get what you want, but if you don't try you don't usually get. and worse, wouldn't we forfeit our moaning rights?

jj

Leave to appeal to Commissioners now granted.

woohoo!! : )

good to hear. great news, bill. please tell all when you can.

btw i've got some to share - had my first TC appeal yesterday, and we succeeded!
it was an L/T case, and the tribunal found Appellant was not L/T taking account of burden of proof and standard of proof.

much more of this and i'll have to throw away my 'brown' tinted specs! : )

jan

ps thinking of your case - have you been able to make any sense of the strange goings on discussed in the 'child element' thread?

jan

Hi Folks

Quick update as very busy at this time.

Commissioners this week decision pending, safe to say though we lost convincingly.

Although commissioner Parker seemed to accept the transitional reg was unfair she felt it stood as it did exactly what was intended, to stop backdating and double payment.

The sex discrimination side that says that single parents could backdate did not go down to well either, interestingly for other single parents facing an overpayment of Income Support if they did manage to backdate Tax Credits and get paid twice, the Inland Revenue (Or what ever they are called now as no one at commissioners seemed to know for sure) said that this was to encounrage single parents back into work and was seen by them as a bonus to them!!!

The human rights side was shot down in flames immediatly.

What did come out that might help others again?

The original transitional regs applied to claims from 06/04/04 and stopped backdating before 06/04/04 if you had Income Support pre April 6th 2004, the next regs covering the same preventing backdating did not start until March 17th 2005. So it was agreed a reg had been missed and that it was possible from July 7th 2004 until March 17th 2005 to backdate the three months without falling foul of any regs stopping you doing this.

Interesting but a long day.

See Below

http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template1=briefcase/detail.htm&briefcase.ID_option=1&briefcase.ID=1613523646