Terms & Conditions

[Anonymous]

‘Person from Abroad’ has never been my strong point, so I’ll throw this open:-

We’ve had an appeal from a chap who is disputing using his partner’s income for his Council Tax Benefit claim.

The reason? Well, he states she is not a British National (she comes from Namibia) and has a’ working holiday visa’ that expires this summer, therefore we should not take account of her income in the claim (she has got a NINO, though he states she has no rights to state benefits).

Am I missing something here? We were right to include her income in the claim weren’t we?

Probably going to sound a right dope, but I start to doubt myself with this sort of scenario… 😥

Any thoughts/regs etc?

[Anonymous]

If you are quite sure that they are definitely partners, then you should aggregate their income as normal, regardless of the immigration status of the partner. there is nothing in Regs that lets you do otherwise….
By saying she is only here temporarily, is he trying to say she’s not in fact his partner?

[Anonymous]

Nope, he’s trying to get out of using her income in the claim!

Thanks for that, having one of those doubtful days!

[peterdelamothe]

Andy – of course you do not sound a “dope”. I dont know anyone in HB who does not have such moments.

Actually, I can sort of see the logic. Presumably the partner is now here illegaly and so to the claimant it must seem strange that one “official” agency is saying your partner is potentially breaking the law by being here and cannot claim state benefits another is saying “part of any money she earns is both your money and our money”. Confusion reigns.

Its a little bit like you robbing the bank and the Revenue then charging you income tax on the proceeds. Which they probably would if they could get away with it. Occupation? “Bank robber”. Fair enough – we will allow you some expenses for the gelly and jemmy ….

[Anonymous]

Cheers for that, feel much better now! 8)

[Anonymous]

Update:-

Well, the saga continues, the claimant insists that his partner’s income should not be included in the claim as her main and normal residence is in Namibia (though he does not deny she lives here now and is his current partner resident at this address whilst in the UK)

Trouble is, he wants all the legislation regarding main and normal residence of partner’s in Ctax claims! I can’t find any!
😥
In terms of Council Tax Benefit, are there any regs concerning main and normal residence of family members?

HELP!!!!!!!

This guy is going to be a real problem……

[Kevin D]

Andy,

Maybe it’s in danger of being over-complicated. Howabout this:

1) occupancy (re the “partner”) – apply the usual tests for occupation relying on HBR 5 (which refers to “person” – not just “claimant”) in conjunction with the usual CDs / case law etc. [definition of “couple” & “partner”: [b:482607b088]HBR 2[/b:482607b088]].

2) the income and capital of a partner [u:482607b088]shall[/u:482607b088] be treated as if it were that of the clmt [[b:482607b088]HBR 25(1)[/b:482607b088]].

I wouldn’t worry about the request for the specific legislation – that will presumably be included / set-out in the submission, given the clmt’s specific request for legislation. In the meantime, I’d write to the clmt advising that this is what you will be doing. NB: if the clmt makes a request to view the HB/CTB scheme, you’re stuffed – the full legislation has to be made available free of charge (for INSPECTION only) at all reasonable times. But, I don’t think this applies to CDs or case law etc.

Hope the above helps to clarify some thoughts.

[Anonymous]

Where Council Tax liability and Council Tax Benefit abut, there are some rough blemishes to the finish.

As far as billing is concerned, the liable person as determined by the hierarchy is jointly and severally liable with his/her partner if the partner is also a resident – which means sole or main residence: section 9, LGFA. If this partner is considered for billing purposes to have her sole or main residence in the dwelling, she is jointly liable for tax; if not, she isn’t.

But for means-testing purposes, the partner’s income is aggregated if she and the claimant are a couple as defined in s137 of the Conts and Bens Act, and I think that would kick in sooner than the sole or main residence test.

So what is the issue at the heart of the claimant’s objections here: is his partner jointly liable for Council Tax, or is she just included for means-testing purposes. From the way you describe the case, it seems fair enough to me that she is the partner for benefit purposes, but it must seem odd to the claimant that she can be his partner for means testing and not his partner for taxation purposes (if that is indeed the case). Section 132(7) of the Conts and Bens Act allows for special provision to be made for cases where one meber of a couple is liable for tax and the other is not, but the whole of s132 is actually a legacy from CCB and there are no CTB Regs that refer back to it. So a normal couple’s aggregation should be done I think, whatever the billing arrangements may be.

The CTB scheme doesn’t really anticipate this kind of situation arising – the Regs assume that all couples for benefit purposes will also be couples for taxation purposes. So it will sometimes seem a bit unfair to the claimant.

[Anonymous]

Thanks for the replies… 😀

Just to clarify, the partner IS jointly liable on the Council Tax side of things…

I’m so glad it’s Friday! 8)

[Anonymous]

As expected the claimant has opted for tribunal on this issue, citing his partner’s residency in another country as the reason (therefore her income shouldn’t be included)

I want this submission to be as simple as possible so I’m hoping to include only one piece of case law.

What is the general consensus as to the best piece of case law regarding main and normal residence issues? ❓

[Kevin D]

Andy,

Given the history of case law on the issue of occupancy, it may be a mistake to rely on only one piece. But, here are some options…

Occupancy CDs on this site:

[b:89cc8353f3]new.hbinfo.org.com/menu2a/cdoccupancy/cdoccupancy.htm[/b:89cc8353f3]

Look for “Occ – actual” cases.

In addition, other CDs include:

[b:89cc8353f3]CSIS/0100/1993
R(IS) 12/96 (aka CIS/0787/1991)
CIS/14850/1996 (*18/97)[/b:89cc8353f3]

Case law:

[b:89cc8353f3]R v Penwith DC ex p BURT (1990) 22 HLR 292 QBD
R(oao BENNETT) v Copeland BC (2004) EWCA Civ 672 [CTAX case]
MULLANEY (& CLAYTON) v Watford BC & Anor [1997] EWHC Admin 28 [CTAX case]
LB Hammersmith & Fulham v CLARKE & CLARKE (2000) CA [Housing case][/b:89cc8353f3]

Regards

[Anonymous]

cheers Kevin, mush obliged… 8)

[Author]

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