Hi
I need some help/ideas relating to an impending appeal for child tax credit.
Facts of case:
Client has a residence order and is paid residence order allowance (ROA) for niece.
She has been refused child tax credit on the basis she is classed as not responsible for the child as stated in CPAG handbook on page 1319 and relevant section of Children Act.

However the Children Act 1989 (part 2 section 12) states that where a residence order is made in favour of a person who is not the parent, that person should have parental responsibility. Nowhere does it say that you lose "parental responsibility" if a residence order allowance is then paid.

Client is in receipt of child benefit and the CB office today have told me the reason a person can claim CB and ROA is because the local authority are no longer responsible for the child ( as opposed to fostering allowance where the child is still responsibilty of
LA ).

I have a letter from the social work department stating that they are not responsible for the child and that my client is.

I suppose I am questioning the ins and outs of "responsibility".

Client has already had a solicitor deal with this who agreed with CTC decision that she was not responsible and therefore could not proceed with representing at appeal - this is where I step in. Solicitors letters etc all included in appeal docs.

Am I mad to pursue this?!!
Any guidance would be greatly appreciated

I think you are barking up the wrong tree. I think the case hinges on the fact that the local authority are apying for the accommodation/maintenance of the child and therefore your client cannot be determined as "responsible" for tax credit purposes. The tax credit regs include children that are being fostered or adopted under a local authority arrangement in the category that CTC cannot be paid for. To the best of my knowledge a residence order allowance is usually paid by LA as part of the fostering and/or adoption process.

But that's just my opinion......

I don't understand the solicitor saying Revenue are correct.

In my understanding a Residence Order is usually granted to non-parent relatives who take on the responsibility for a child outside of the adoption / fostering rules. A ROA is used as a crowbar to get them to take the child on by social workers. (These last two sentences are probably very subjective!)

But the point is they take on full parental responsibility.

Don't see where a ROA comes into it re entitlemt at all see CPAG page 1389 saying such allowances are disregarded as income(refers to Reg 19 Table 6 para 11(b) Tax Credits (Definition and Calculation of Income) Regs 2002. This is one of the few areas I would recommend a current IS receipt client to go over to TCs now (all of these allowances are treated differently for IS) and I'm worried to think it could be wrong to do so.

I think you should pursue the appeal. Get the terms of the RO from the client or Social Services, acquaint yourself with the law, put it all in front of a tribunal, make sure the client goes, and see what happens.

Surely you have nothing to lose and potentially everything to gain!

A residence order can be granted to relatives or non-relatives - it is just a tool that can be used to provide greater permanency for the child and can be a step on the road to adoption.

CPAG page 1389 is referring to the income from a residence order allowance being ignored. It also refers to income from a fostering allowance being ignored, but if you are fostering a child your are not entitled to child benefit and are not "responsible" for that child.

I'm very surprised that child benefit are paying up in this case (see page 98 of CPAG). The responsibility matter in these cases is assessed by whether or not LA are providing money for the maintenance and accommodation of the child ( this does make practical sense since why should government funds be paid out twice for the same child?).

Child Benefit are right. There is no question that carers of children subject to a residence order are entitled to both CHB and CTC in the same way as anyone else. They are in a completely different position to children who are placed by a local authority under S.23 Children Act who are excluded from CHB and CTC. The children live where they do in consequence of an order of the Court not in consequence of a placement by the LA. The fact that the LA have the discretionary power to make ROA payments in such cases - under para.15, Sch.1, Children Act - makes no difference.

You should proceed with the appeal and demand that the IR cite the regulations under which they think this child is excluded. They will almost certainly quote - as does the contributor from Ballymena CAB - the regulations excluding children who placed by Social Services under S.23(1)(a) Children Act (or S. 57A Adoption Act). Then just get confirmation from Social Services that the child is not so placed. End of argument hopefully, although TCO's, unlike the CBC, are completely ignorant about this.

Incidentally Wirral SSD, and others are taking advantage of this position to transfer "kinship carers" receiving foster care payments on to residence orders with ROA's, whereupon they claim CHB and CTC - this saves money for the SSD, even paying ROA's at foster-care rates, since they don't have to provide any ongoing social work support or reviews, and on the whole carers get more money.

Thank you to everyone who has commented on my case, this has all been very helpful. I have been looking at the placement of the child so the immediate, above comments are very helpful.
I will make another posting in very near futureand let you all know outcome of hearing
Thank you.

Hi
WWR, thank you for your positive advice on your last posting. Indeed it was part III children act, s23 that they made their decision on. I went up this avenue and got confirmation from our legal services section that the child was not placed in accom. by the LA and they had never had parental responsibilty and therefore decision was wrong and child tax credit is payable. The presenting officer stated himself the decsion was wrong, I said nothing except hello, thank you and goodbye!It took about 5 minutes. I hope this is info is useful for everyone.
Elaine

Well done. You'd never have got your chance to say hello and goodbye if you'd listened to people saying you were wrong.

Well done! I'm very glad I was wrong and thank you for letting us know the outcome.

good un. It might be an idea for your client to let the solicitor know who originally told her there were no grounds for appeal in case she comes across such decisions again

Interesting case, precise argument, excellent outcome. Well done!