In all of the literature I have read, including the tax credits technical manual and CPAG handbook it suggests that in order to qualify for the disability element of WTC the disabled person needs to be working 16hrs + themselves.
However when looking at the regs - working tax credit (entitlement and maximum rate) regulations 2002 - reg 9 - 2.67 (if that helps anyone - I still find the refs confusing!) it states that the disability element should be included if

'the claimant,or,in the case of a joint claim, one of the claimants-
(a)undertakes qualifying remunerative work for at least 16 hours per week;
(b)has any of the disabilities listed in Part 1 of Schedule 1, or in the case of an initial claim, satisfies the conditions in Part II of Schedule.1; and
(c) is a person who satisfies any of cases A-G on a day for which the maximum rate is determined in accordance with these Regulations.'

and so on. There is no AND after (a) and also in the notes on a later page (p396 in my social security legislation book) of the regs it gives an example of a married couple one of whom works 35 hours and the other of whom is disabled neediing care - and they include a disability element in their max tax entitlement. I had thought if the disabled person wasn't working this couldn't be so -

Given that you'd expect the legislation notes to be right...
Now I'm not sure what to think? Which is right? Help!

Rebecca,

I agree and wrote to them appealing failure to include DE when it was partner who qualified. They backed down and put it in payment without even going to appeal.

The missing AND makes all the difference and it is well worth challenging. You may have to go to appeal but I don't see how the regs can be interpreted any other way.

Sorry to be a wet blanket, folks, but I think for the disability provision to apply, the WORKER must be disabled. I think the example given on page 396 of Vol IV of the legislation (Tax Credits) is wrong.

Reg 20(1)(b) of the Regs, providing for the disability element, requires that the claimant satisfies reg 9(1). See Rebecca's posting for text of 9(1). 9(1) starts by saying that the disability element is payable if one of the joint claimants:

a) blah blah;
b) blah blah; and
c) blah blah.

This is standard drafting in English law - you only need one 'and' between the last two sub-paragraphs in a list to make all the items cumulative; ie every one must be met to satisfy the regulation as a whole. Where only one sub-para needs to be met (list of alternatives) the legislator puts 'or' between the last two sub-paras - look at reg 4(1)(second condition), where 'or' is there to show that the condition is satisfied in any one of three different ways. Note that 'or isn't necessary after the first sub-para, for the same reason that 'and' isn't needed after 9(1)(a).



Jim

PS - a piece of luck for Derek's client that the Revenue paid up!

Thanks - so now I'm still not sure what to think!!
I also have a client who is the non working member of a couple on WTC for whom they actually HAVE paid the disability element - even though their own guidance suggests they shouldn't.

Have they made a mistake which they'll seek to recover (although we'd argue it's their own fault) or are they applying the rules differently?

Rebecca

I'd still go for it and hopefully none of the IR decision maker's will have read Jim's post or have a grounding in English Law!

Having desperately trawled other regs to see if they put AND in in a list I think I've found one. Section 73 of the SSCABA 1992 part 3 has an AND between a & b then one between b & c. Schedule 2 of the IS regs also does this in the bit about SDP.

So there's no consistency across the various regs.

Well spotted. Derek! As you say, occasionally the lawyer doing the drafting will put 'and' (or perhaps 'or') after every sub-para for the avoidance of doubt. In my opinion, there should be a standing instruction to DWP (& IR) Legal Branch to do this. Incidentally, did you spot that in the WTC reg I cited - reg 4(1), second case, para (a) - the drafter forgot to include 'and' between sub-sub-paras (i) and (ii)?

When I worked for the old DSS HQ Adjudication branch in Southampton (OCAO) many moons ago, regular appeals to the Commissioner were lodged by folk on the grounds that they satisfied an early sub-para in a list, plus there was no word 'and' following their para as there was between the last 2 paras. The appeals were hopeless, not just because of the legal convention in drafting (not conclusive by itself), but because of English usage:

"I'd like a cup of tea, some toast and a cream cake."
"I'll drink Coke, lemonade or milk."

We all know that the first speaker wants all 3 items, whereas in the second instance, alternatives are being stated.

Having said this, the IR lot seem pretty hazy about it, so why not have a go? With a disabled partner at home, the family could do with the cash!

Jim

Fine - but you would expect the person who writes the notes to the legislation to understand the nuances of english law as much as you jimpepin and they don't think the ; means 'and' !!

Rebecca

"in the notes on a later page (p396 in my social security legislation book)"

Which book is this?

WTC is not covered by social security law but by tax law, the Tax Credits Technical Manual is the official guidance for this.

That says in para 2501:

'TCTM02501 - Introduction

The Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002, Reg. 4 and Reg. 9

The disability element is payable if the claimant, or at least one of the claimants in a joint claim

is aged at least 16 and
is engaged in qualifying remunerative work for at least 16 hours a week (TCTM02400) and

has a physical or mental disability which puts him at a disadvantage in getting a job and

satisfies the "qualifying benefit" test or the Fast-Track rules (TCTM02502)'

It's the "Tax Credit and Employer Paid Social Security Benefits" book by Sweet and Maxwell which I suppose strictly speaking is a book about both social security and tax law.

I don't think any great significance should be attached to "official guidance" above Wikely and Williams opinion's. They are all interpretations of the law which are not binding. Having said that I think the guidance is right and the example wrong. But if they have wrongly coughed up disability elements to the unentitled then good for them. At least someone will have got something out of this mess.

Thanks for the opinion, Damian. I was beginning to feel lonely!

Jim

The guidance may very well be the correct interpretation of the legislation, or at the very least the intention of the legislator. But if you get to a Tribunal on this the chair is going to have their copy of Wikely and Williams in front of them not the Tax Manual (or whatever they call it) and if we direct them to the correct page I can't see many chairs digressing from that interpretation. The same example continues to be used in the 2004 edition (page 388 now) so the authors have seen no reason to change.

I feel that we should should continue to push for the disabled element to be applied in all similar cases.

Sorry to drag this one up again, but has anyone got any further with the correct interpretation of this reg??

One of my colleagues seems to think that there is a challenge based on this, but we don't know for definite.

Thanks in advance

I have appeal in and am waiting to hear about this. My limited faith in the IR was further reduced by them asking me to fax through a copy of the regulations!!

Not aware of anything going to Commissioners though

derek this maybe of intrest.i contacted tax credits last year with regards to my own situation as my wife is in reciept of long term incapacity and was told she has to be recieving d.l.a.I left it at that and as usual your to busy helping everyone else out to bother
about yourself and in my case i was dealing with pensioners.anyway for some reason i started thinking about it again and gave them a phone and was told that yes i should be recieving the disability element and to phone back with the date incapacity started,5 minutes later i phoned back and was told by someone else that you have to be recieving d.l.a .this time i asked to speak to a supervisor and she went away came back to say ok disability element will be paid but can only be backdated 3 months.my case goes back 2 years and i will now be appealing this decision for the full backdate.something smells with this and i think the call operators are being fed the wrong law.i will keep you updated as to further events but the point about all this must be that thousands of claimants are losing out . as the regs are not being applied correctly.I dont think i will get to appeal as they will probably settle but i hope i do as this has to be exposed and clarified.Let me know how you get on.

following on from my last post. i can now confirm that i got a phone call from tax credits saying they will backdate the disability element for the last two years.so if you know of any joint claimants and one recieves long term ICB then make sure they are getting the disability element, as i said earlier the silence is deafening at the inland revenue on this matter.couldnt be a conspiracy could there.

Gerry,

That's a good result, shows the shambles they are in though! I still have not had Tribunal scheduled and have inherited a further 2 cases from colleague. I'm in the process of following up on these as I now feel that the IR are guilty of deliberately stalling on having the issue heard.

I'm slightly surprised this was not an issue raised in all the fuss last week. Whislt the overpayments are an important issue this potentaillt means that there are a huge number of underpayments which are now going back 2 years.

As an aside I also have a case with failure to declare partner, at beginning of year was told got not offset o/p against what they would have received as a couple. Had phone call from person dealing with case yesterday to say rules have changed and they now can do offset.

I've finally received the submission from the IR for my case! Interestingly it makes no reference to my argument and does not even include the wording for Reg 9. Basic argument, and it is put very basically, is that disabled person doesn't work so don't get it and that the SDE does not lead to qualification for the SDE.

Hopefully Tribunal won't be too far away, will be interesting to see if there is a PO!

has anyone found anything furtheron this, i have a case that was turned down for disability element of a WTC claim as the partner work was not the one claiming DLA. not sure if this can pursued. as it was a couple of months ago now.

You can still write asking for the DE to be included - when they refuse you have a new letter to appeal against, or just put a late appeal in based on official error.

My Tribunal has been scheduled but needs to be postponed as they have picked a date we told them not available.

The IR submission has been reissued as first one had pages missing, second one has different pages missing! But they still don't address the core issue, I fear the IR will try for adjournment to prepare argument on the wording of the reg, but will fight this as it is clear from the papers what my argument was.

Thanks for this info, i will get this started straight away.

good luck with your case, looking forward to hearing the outcome.

Sorry folks, but I'm with Jim on this one and I think this is a worrying trend for welfare workers to be taking.

We all know that it is the disabled person that has to be working because a) it says it in the guidance (I'll accept the usual criticism of that statement); AND (for the avoidance of doubt), b) it says it in the notes accompanying the claim form; AND the widely publicised policy intention was that the disability element of WTC was intended to replace Disability Working Allowance - hence the benefit and disability conditions being virtually identical.

I don't have a problem with taking advantage of the ignorance of a government dept, where it's lawful; but it seems to me that this is beyond borderline and your advice agencies might find themselves with a problem. Consider this scenario:

Supposing you say, "well, we know it's supposed to say that, but because the law is just a tincy bit ambiguous - we think you should get £x'000's pounds."?

Then a commissioner considers this issue and says "this is nonsense argument, you should know better, go away!"?

Then the IR seeks to recover those overpayments which, as you know, carry no right of appeal, and you say "but this is official error!!".

Then, and here's the crunch point; what are you going to say if the IR then say a) "no it's not - you advised the customer to claim it", and/or b) "we don't care, pay up anyway"?

The claimant is left with a whopping recoverable overpayment with no basis to prevent recovery except the goodwill of HMRC. They may be left suffering hardship, etc... which would have been prevented had the claimant’s adviser taken a reasonable and balanced view of the law.

Isn't there a possibility that this could simply create no-win-no-fee work for solicitors?

I know I'm going to incur some serious wrath for this posting (and it wouldn't be the first time I've posted up with this issue) but I believe that in WR we have to draw a limit how far we go. OK, the law is the law, and sometimes it is unclear and needs clarification or completely unfair and needs challenging. But we must recognise that there is a point where such challenges just become a bit daft. This type of challenge can, and does, give WR a bad name. It breeds the opinion that we're out to "get as much as we can - whatever!!" and, in my opinion this in turn helps to breed the adversarial attitude between WR and the official departments which can prevent us from making a real difference to those clients who are genuinely suffering at the hands of the law. It also lowers us to the same level as the DWP who seem to apply exactly the same thinking, only in the opposite direction, i.e. “give them as little as we can”…

I think the logic of Jim's food ordering analogy is impeccable.

Paul

Tony, I have no wrath for you. I think your interpretation is right. The policy intention is to get disabled people back into work. If the partner can claim, there is surely no incentive for the disabled person to seek employment.

However, I think the circumstances (the claim form, the notes, the needless conventions regarding what ";", "and" and "or", all combine to make challenges tempting (why not just say "and" or "or" at the end of every clause, and be done with it?).

I am not sure I would entirely agree on the official error bit. If the HMRC willingly and knowingly grant WTC when it is the partner who is disabled, then that would look to me like an overriding official error (what reasonable person could then doubt the veracity of a claim, even if there were some forebodings?). The only hard bit then would be to get the Revenue to listen to their own guidance on recoverability. failing that, I agree you would probably end up with a recovery!

Steve

Not sure that there will even be a recovery. Remember in these cases they are not paying and we are arguing that it should be paid. Assuming we win a Tribunal, which is a big assumption, there is no guarantee the IR will appeal to Commissioner - they may be prepared to lose the odd case here and there rather than have a Commissioner come down on our side. If we lose we apply to Commissioner and if we win we have the precedent, if we lose then the DE is not paid but as it has never been paid there is no overpayment to recover.

No one doubts the intention of the legislation but it's for them to get it right when it is written, if they don't then we should challenge. We've already seen what can happen with the changes rushed through to IB which are now ultra vires, if no-one had challenged these the rules would have been changed and that would have been it.

I think that I would diferentiate 2 styles of advice giving in this thread.

a) you are entitled and I will help you claim.

b) you are not entitled but the IR are inept and might pay you anyway so why not claim.

I don't think (b) offers a long term professional relationship with clients of benefit to either.

Hi Gareth,

I think you are right.

You can understand the temptation to use real cases to test out weaknesses in how regulations etc are drafted or interpreted by the benefit authority.

However, aside from the matter of professional relationships, this probing may well lead to raised client expectations, as well as less predictable outcomes if it all goes wrong (depending on the case).

Steve

Perhaps it helps to look at the parent Act (Tax Credits Act of 2002), which any tribunal would have to look at when interpreting a regulation under consideration. As we know, regulations are secondary legislation, which have to be laid by the secretary of state - or, here, the treasury, within the terms of the Act of Parliament which gives rise to them - the primary legislation. The Tax Credits Act here grants to the treasury the power to lay certain regulations within set limits, and this saves parliament having to spend thousands of hours discussing the nuts and bolts of the new law. (Sorry - I know I'm teaching my granny to suck eggs here.) A regulation which does not come within the powers provided by the parent act can be struck out as ultra vires. That is because the treasury cannot do something which parliament hasn't given it the power to do. (I know this is an over simple description of ultra vires.) In other words, when a tribunal is looking at how to interpret a regulation, the meaning of which is disputed, they must look at the parent Act, and in particular the sections of the Act under which the regulations are laid.

The parent section here is section 11 of the Act (see the intro to the WTC EMR Regs for a list of the sections of the Act under which the regs are made). The provision for a disability element to be paid is in section 11(3), and it is very clearly allowed for only in the context of the person or persons engaged in qualifying remunerative work. Subsection (4) specifies that this is the disability element. Contrast this with the provision for a severe disability element in subsection (6)(d), where there is no requirement for the person with a severe disability to be in qualifying remunerative work. And if it isn't necessary for the disability element to be linked to qualifying remunerative work, why isn't the disability element in section 11(6) rather than section 11(3)?

Tribunal held this morning and was successful, held that Disabled Element should be paid on strict interpretation of Regulation.

Will now have to wait to see if the IR try to take to Commissioner.

Interesting postscript to this interesting discussion!

http://www.osscsc.gov.uk/judgmentfiles/j1946/CSTC%200076%202006.doc