I would tread carefully when attempting to rely on, or advancing, ministerial statements in argument. Traditionally, the courts (and by extension tribunals) have frowned on such approaches. The situation changed after the decision of the HoL in Pepper v Hart (1993). This decision stated that ministerial statements (and other parliamentary material) when used to promote legislation before its enactment could be relied on in situations where a statutory provision is ambiguous, obscure or leads to absurdity, but, only where the ministerial statement or parliamentary material is sufficiently clear.
The problem would seem to be the last sentence in Baroness Hollis’s statement (above) which states “(f)or any other period in the same tax year where the family is not claiming IS or JSA, entitlement to tax credits will be based on annual income as usual”.
I can see a problem with this. Section 7, as a whole, when applied to the situations described in this post, almost certainly leads to absurdity at first look. If that is so then I don’t think that Baroness Hollis’s statement is sufficiently clear in addressing the apparent absurdity created.
When she talks about not applying the means test to periods of entitlement to IS/JSA then that is clear enough but then she apparently contradicts herself in the last sentence in the quoted passage, i.e. the means test will be applied to the period when the claimant comes off IS/JSA. The contradiction appears because a person would actually be disentitled to IS/JSA for the period that they were in receipt of IS/JSA because of entitlement to maximum CTC(which if there was other income) may take that person over their applicable amount for that period. Thus her statement actually endorses the absurdity that the legislation appears to create.
I would suggest that if CTC and WTC are in payment and entitlement to WTC stops part way through a year then a new relevant period begins (a view supported by the annotations to Reg’8 of the TC (Income Thresholds and Determination of Rates) Regs 2002. A subsequent change in income (losing, or reduced, IS) would not end the new relevant period. Thus I would agree with Steve that income from earlier in the year probably could not be used and it would then be a matter for recovery of any overpayment for a previous period, at the end of the year based on an end of year re-calculation.
My view, therefore, is that I don’t think that the legislation as a whole produces the apparent absurdity suggested. In year recovery of overpayments when a person is on IS leaving that person with an income below IS levels is inherently unjust and should be addressed by an automatic right of appeal against overpayment decisions with no right of recovery of an overpayment caused by official error. Baroness Hollis’s statement is insufficiently clear to assist in the interpretation of Section 7 but it is misleading in that it gives the impression that it suggests that no one will fall below the appropriate safety net and, that, is to this government’s eternal shame.
|