Friday afternoon teaser, is she isn’t she?

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  • #38651
    Kay_Tade
    Participant

    Could I please get some feel views on this case?

    With regard to HBR 20/21 how would you treat this dependant/non-dependant child.

    Claimant writes in to state that since early December 2010 her daughter, who we have treated as a dependant child and turns 18 in June, has now moved in with a partner.

    The claimant still receives CHB and CTC for the daughter as says she “stills continue to support and feed her daughter” and that the daughter has not been in full time education, was not working or claimimng JSA.

    She has stated she will now inform HMRC and CHB of this change.

    In light of HBR 20/21 can you :

    treat as an absent member of the house hold or not?

    treat as a dependant for all/some of the period?

    treat as a non-dependant for all/some of the period[With late notification in mind]?

    apply underlying entitlement?

    :bigsmile:

    Thanks in advance.

    #109121
    Anonymous
    Guest

    Given the potential consequences (loss of dependants allowance, loss of bedroom allowance if on LHA) I would want to get the facts straight before jumping in and making a decision. Has she completely moved out, packed her bags, emptied her bedroom, redirected her post, etc? Does she still return for meals?

    If she is definitely no longer living with the claimant and has no intention to return, treat as a change in circumstances from Dec 2010. There’s nothing beneficial here so no need to consider late notification rules or underlying entitlement (unless claimant has failed to report a beneficial change in the same peiod). CTC would be treated as income – if it is later decided to have been overpaid, this would be reflected in future payments so you’d have no need to go back and revise.

    #109128
    Kay_Tade
    Participant

    Well the claimant’s mother is insisting she has moved out.

    The reason I mentioned Und/Ent was because, due to late notification and the fact the dependant is now no longer a dependant from Dec 2010, she would be left on the claim as a non-dep from Dec 2010 till July 2011. (But it is a m oot point)

    #109129
    Anonymous
    Guest

    I don’t see how she’s been a non-dep since December; a non-dep is someone who lives with the claimant.

    #109134
    Kevin D
    Participant

    From the info given, the daughter has plainly moved out. Unless there is more to this, it would be perverse to reach any other conclusion.

    If she no longer “normally lives” with her mother AND if she is not temporarily absent / intending to return, the mother is no longer “responsible” for the daughter within the meaning of HBRs 20 & 21.

    If not a dependant, is she a non-dep? If she doesn’t “normally reside” with the mother, I agree with Michael; she cannot be a non-dep within the meaning of HBR 3.

    Next up is the income. It is plainly being received. If it cannot be disregarded, it counts. In R(H ) 1/05, Cmmr Howell (as was) found that even wrongly paid benefit counted as income UNLESS it was being recovered. However, specifically for tax credits, it still counts as income even if later recovered (CH/1450/2005)…UNLESS…..

    Has the clmt fully, and timeously, notified HMRC of the change? If so, it *may* be open to argument that tax credits after that period count as “voluntary payments” – CIS/1813/2007 (but also see CH/4371/2006 where the same Cmmr makes it clear that CIS/1831/2007 was very much an on-the-facts decision). In addition, it may be open to argument that CH/1450/2005 was wrongly decided. In CH/0653/2009, Judge Rowley suggested that HBR 32 cannot drive the effective date for a change in circs for tax credits; only HBR 79 can.

    #109227
    Kay_Tade
    Participant

    Thanks Michael and Kevin, I was trying to find a way out of an O/P but no can do….

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