Child Benefit for children in another EEA country

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  • #22728
    Anonymous
    Guest

    This message is for delegates who attended the PFA course in London on Wednesday, and anyone else who is interested. Some delegates have seen claimants from EEA countries, especially Poland, who receive Child Benefit for children who are not, and never have been, resident in the UK. At first sight, this completely contradicts the Child Benefit law – the child must be resident in the UK. I promised to research the issue and post a reply on here. I can now tell you that these claimants are covered by Regulation 1408/71/EC which governs the co-ordination of social security across the EU. [url]http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31971R1408:EN:HTML[/url] A national of a member state who is resident in another member state may "export" his or her entitlement to family benefits even if the family members for whom these benefits are claimed is not in the same member state as the claimant. See Article 19 [i:a11d313496]et seq [/i:a11d313496]of the Regulation. The claimant may not pile up multiple benefits in this way – for most benefits, you can only claim once anywhere in the EEA. But in Poland family benefits are means-tested so people working in the UK tend not to qualify for Polish benefit because their income is too high. So the only family benefits they can receive are the non-means-tested UK ones. That is why you are seeing Polish nationals with no children in this country claiming Child Benefit. Child Benefit has a right to reside test like HB and CTB, but registered Polish workers satisfy that and so they can claim Child Benefit under the normal UK rules. This has no effect whatsoever on HB and CTB as far as I am aware. In particular, these claimants are not entitled to have their children included in the HB/CTB means test, because they do not satisfy the HB/CTB household test.

    #9311
    Anonymous
    Guest

    Peter

    I have not come accross this before and think it most interesting. Are you saying therefore that the effect on the HB claim is that neither children (as they dont live there) nor child benefit are taken in to account? I would have thought the CB would still be part of the income even if there were not children in the “household”. Why is this not the case?

    Just to clarify please…

    #9312
    Anonymous
    Guest

    Sorry, yes I forgot the income. If they are receiving it, take it into account I say. Same goes for Child Tax Credit, which I suppose they might also claim under the same provision (unless the UK government can successfully argue that it is “social assistance” rather than a family benefit, in which case 1408 doesn’t apply)

    #9313
    Anonymous
    Guest

    Quick update on this:

    1. I think the version of 1408/71 that the above link takes you to is out of date, because it doesn’t include (as far as I can tell) an amendment that specified certain “special non-contributory benefits” partly covered by the regulation. These include things like JSA-ib. I gather these are subject to only some of the rights otherwise granted by the regulation.

    2. Strictly speaking, the use of the word “export” in this context is a bit misleading. Polish workers are not exporting their pre-existing Child Benefit claims: the point is, they don’t qualify for domestic Child Benefit in Poland on income grounds. That’s why they are able to claim in the member state where they are working. I think when people talk about “exporting” benefits they generally mean the other way round – claiming a benefit in your home country and continuing to receive it when you travel to another country to work.

    #9314
    Anonymous
    Guest

    As one of the delegates in question, I’d like to express my thanks to you for going to the trouble of following this up.

    In fact, thanks very much for your presentation of the whole PFA course, which was excellent!

    #9315
    twill
    Participant

    Sorry to be a bit dim here but are you confirming that it’s perfectly legal for a Polish couple to come to this country to work, leave their children in Poland being looked after by whoever and claim Child Benefit and Child Tax Credits in respect of the children?

    We have a claim from a Polish couple – registered as workers – they’ve applied for child benefit and are awaiting the decision. The address they’ve given for the children is their former home in Poland. They have also indicated on the application form that they are still paying rent on the former home in Poland and will be returning there. The couple have a ‘right to reside’ and we therefore don’t need to do HRT but surely this is non-sensical.

    I’d much prefer to be working on the Costa if it meant I could claim benefit there and send my earnings and benefits home to my children.

    As India Hicks recently said in The Times ‘ If Britain were a person it would be sectioned’.

    #9316
    jan_jones
    Participant

    We have also had two claims from Polish couples on the workers registration scheme claiming child benefit and tax credit for depts. residing in Poland.

    The first claimed child benefit and tax credits for two children in this country including one aged 18 living in Poland, continuing in full-time education. The clt stated no on the claim form to ‘do you own any property’. It transpired the 18 year old dept was living alone in Poland in a flat they owned.

    Adelphi did not seemed to beaware of these kind of senario’s, the regulations were obviously not written with them in mind. Adelphi quoted reg 20 and advised that it was for the LA to decide whether the depts should be included in the family unit and therefore eligible for hb and ctb.

    In the second claim the wife and children are still in Poland and expect to join the clt in June. In the meantim clt is in receipt of child benefit and tax credits and now claiming child benefit.

    As anyone experienced any similar situation and have any advise to add to that of Adelphi.

    #9317
    Darren Broughton
    Participant

    Twill,

    Could you not decide that their main home is still in Poland and use Reg 7 (1) and (2)?

    [i:07ef07b67b]Circumstances in which a person is or is not to be treated as occupying a dwelling as his home
    7. —(1) Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home—

    (a) by himself or, if he is a member of a family, by himself and his family; or

    (b) if he is polygamously married, by himself, his partners and any child or young person for whom he or any partner of his is responsible and who is a member of that same household,

    and shall not be treated as occupying any other dwelling as his home.

    (2) In determining whether a dwelling is the dwelling normally occupied as a person’s home for the purpose of paragraph (1) regard shall be had to any other dwelling occupied by that person or any other person referred to in paragraph (1) whether or not that dwelling is in Great Britain.[/i:07ef07b67b]

    #9318
    twill
    Participant

    Darren, since my posting it’s now been discovered that the clmts actually own their property in Poland – I’m just waiting for the written proof of this and will then refuse the claim based on the reg you’ve quoted as it seems to fit the situation perfectly. This whole issue is absolutely ludicrous.

    #9319
    Julian Hobson
    Participant

    I don’t think reg 7 is relevent here as they are clearly “normally occupying” the home in the UK.

    It isn’t for us to question whether the rules are right or wrong, morally or otherwise. I am extremely uncomfortable with an approach that seeks to dissentitle people because the rules appear strange. you can’t try and exclude them from HB because you don’t like the Child Benefit rules.

    There is absolutely no difference between the situation you describe and many UK nationals where reg 20(1) applies.

    The issue of receipt of Child benefit being a determining factor in responsibility/household only occurs in 20(2) i.e. where there is a question about which house the child lives in. In your case there is no question and so you simply do what Peter said earlier, include the child benefit income but don’t include the child.

    #9320
    Darren Broughton
    Participant

    But are they “clearly ‘normally occupying’ the home in the UK”, if they’ve stated that they own their home in Poland and intend to return to this home?

    Why would the Regs make reference to “whether or not that dwelling is in Great Britain”. Surely this paragraph caters for this type of situation?

    I also don’t think that this is an “approach that seeks to disentitle people because the rules seem strange”, it’s just an approach which considers the HB Regs.

    #9321
    Anonymous
    Guest

    Wouldn’t the property in Poland dis-entitle them on excess capital grounds?

    #9322
    Anonymous
    Guest

    The property would need to be valued first I would have thought, also it may be likely that if it is a flat it may be under 16K as the property prices can be low in certain area’s.

    #9323
    twill
    Participant

    My first thought would have been to have valued the property in Poland (somehow) which may well have disentitled them to benefit, although property values are much lower there. However, I still think regulation 7 can be applied correctly here. If I go away to work for a period and leave my family behind in the home I own with the intention of returning there, surely I couldn’t expect the benefit system to pick up the tab for my current accommodation??!!

    #9324
    Julian Hobson
    Participant

    I wouldn’t be too worried about a decision to consider the “normally occupied” issue if it was something that is “normally” considered.

    In most cases when someone says they live in a house and have a rental liability you will pay HB (or at least decide that they meet the eligibility criteria) I have never seen another case where the tenant has a second property when a DM would decide that they actually normally reside in the house they clearly don’t occupy. Which is why such a decision doesn’t sit well with me (notwithstanding that I think it would fail on appeal).

    The provision is there to cover situations where there is doubt as to which dwelling they occupy as a home. It actually says that in deciding which of two dwellings they might be deemed to occupy you look at the family and the other property. Family for HB purposes is in the SSCBA 1992 s137(1) and doesn’t include the Child because we have already decided under reg 20 that they are not part of the household.

    So you are left with the bricks and morter in poland, they don’t normally occupy it as their home because they are residing here. The only sensible decision is that they occupy the UK address. The following is a quote from this:

    http://www.hmrc.gov.uk/taxcredits/residence-rules.htm

    It suggests to me that a decision that they normally occupy the polish home is completely at odds with the HMRC decision that they have to be ordinarily resident here to get CB.

    [i:7595b559f4][b:7595b559f4]Children[/b:7595b559f4]
    For both the CTC and Child Benefit, there is no requirement for the child in question to be ordinarily resident in the UK: the “ordinary residence” test is applicable to the claimant.

    However, for the claimant to be eligible for the CTC, the child must be “normally living” with him or her. This test is set out in Regulation 3 (1), Rule 1, of the Child Tax Credit Regulations 2002.

    For Child Benefit, Regulations 21 and 25 of the Child Benefit (General) Regulations 2006 provide that for the claimant to be eligible for Child Benefit, the child must be physically present in, respectively, Great Britain or Northern Ireland. However, if the child is not physically present in Great Britain or Northern Ireland, he or she may still be treated as present for at least the first 12 weeks of a temporary absence. Further, the child may continue to be treated as present in Great Britain or Northern Ireland for more than 12 weeks of a temporary absence where one of the following applies:

    if the child is receiving full-time education in an EEA country or Switzerland;
    if the child is on an educational exchange or visit that is approved in writing by the child’s school; or
    if the child is to get medical treatment for an illness that began before the child left Great Britain or Northern Ireland.
    There is no time limit on these temporary absences. The only requirement is that the absence is temporary and the intention is to return to Great Britain or Northern Ireland at the end of it.

    For the child of a Crown servant posted overseas who accompanies his or her parents on their posting, regulation 32 of the Child Benefit (General) Regulations 2006 provides that he or she shall be treated as being in Great Britain for Child Benefit purposes.[/i:7595b559f4]

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