Tax credits - recovery of overpayments
New benefits and tax credit rates from 6 April: http://www.lawcentreni.org/EoR/benefits-and-tax-credits/436-benefits-and-tax-credits-rates-2014-15.html
The recovery of overpayments is a major issue for advisers and claimants alike.
This briefing covers:
- the law on overpayments and arrangements for recovery;
- Her Majesty’s Revenue and Customs (HMRC) policy on when and how such overpayments can be recovered;
- details of how an overpayment can be challenged or written off; and
- useful tips for advisers in getting redress elsewhere.
Throughout the document, the term claimant refers to an individual claimant if the application is made by a single person or lone parent or to both partners in a couple as couples need to make joint claims for tax credits. Year refers to a tax year, ie 6 April to 5 April.
Decisions and awards made on claims for tax credits are provisional and will be subject to final decisions made through an annual review process after the end of the tax year. For further details see Encyclopedia of Rights A.7 Tax Credits Annual Review and Renewal.
1.1 Decision making process
The decision making process for tax credits in summary is as follows.
- An initial decision on a claim is made under Section 14 of the Tax Credits Act 2002 (the Act). This then leads to a notice of a decision being given under Section 23 of the Act. The award notice does not include a breakdown of how the award has been calculated.
- At the end of the year, a final notice of the decisionis given under Section 17 of the Act. This notice will include a breakdown of how the award has been calculated. The claimant is required to check the personal circumstances contained in the final notice and provide details of actual or estimated income for the tax year. This information is used to finalise tax credit entitlement for the year.
Where a claimant’s entitlement is less than the amount of tax credit actually paid, there will be an overpayment.
1.2 Causes of overpayments
An overpayment may arise where a claimant has not given HMRC correct information at the time of claim or has failed to let HMRC know before the annual review that there have been changes to her/ his circumstances. Overpayments also arise because HMRC has made a mistake in recording correct information.
It is important for claimants to carefully check award notices. This is because if a mistake is recorded on an award notice, the claimant has the responsibility to notice this and to let HMRC know that there has been a mistake.
The following changes of circumstances must be notified to HMRC within one month of the change or the claimant’s knowledge of the change, whichever is later:
- changes to the household. If a person claims as a single person or as a member of a couple s/he must let HMRC know if s/he becomes a member of a couple or single or if either member of the couple leaves the UK permanently or for longer than eight weeks (twelve weeks if due to illness or bereavement). In these cases the claim will end and a new claim must be made;
- for Child Tax Credit only, loss of right to reside;
- a decrease for four or more consecutive weeks of £10 per week or more in eligible childcare costs;
- reductions in normal working hours below 30 or sixteen hours, or below 24 hours in the case of couples with children;
- if a child leaves the household, dies or ceases to be eligible.
Failure to notify the above changes may lead to HMRC imposing a penalty on the claimant where tax credits are overpaid.
The following changes may be notified during the tax year or at annual renewal:
- changes of income of more than £5,000 per year;
- if a claimant’s income goes down in the current tax year by £2,500 or less, payments will not change for the current tax year, provided all other circumstances stay the same. However, HMRC will use the new income figure to work out what to pay for next year;
- if a claimant’s income goes down in the current tax year by more than £2,500, HMRC will recalculate tax credits but will ignore the first £2,500 of the reduction. HMRC will take the full amount of the reduction into account when working out what to pay for the next year;
- increases in hours worked above sixteen, 24 (couples with children) and 30 hours limits;
- increases in childcare costs of more than £10 per week for more than four weeks in a row;
- a new baby or another child joins the family.
If the changes lead to an underpayment of tax credits, this can usually only be backdated for one month. Disability additions of tax credits can be backdated for more than one month where a person receives a qualifying benefit such as Disability Living Allowance and notifies HMRC within one month of the decision to award the qualifying benefit. It is therefore in a claimant’s interests to keep HMRC up to date. If the changes lead to an overpayment, HMRC will usually seek to recover the overpayment.
Overpayments are dealt with in Sections 28 and 29 of the Act. In particular, Section 28 provides powers for dealing with likely overpayments (ie, where it appears that if the existing in-year award continues it will lead to an overpayment). In such cases, HMRC can amend the award to reduce or eliminate the possible overpayment.
Where an overpayment is identified after the end of the financial year, then it can be recovered from future awards of tax credits or in other ways.
Section 29 sets out that HMRC must provide written notice to the claimant setting out the amount of the overpayment.
Section 38(1) of the Act lists the decisions which can be appealed. This does not include decisions made under Section 28 or Section 29. As a result, there is no right of appeal to an appeal tribunal against a decision by HMRC to recover an overpayment. Furthermore, unlike with social security benefits, there is no statutory test for when an overpayment is to be recovered.
If the actual overpayment is disputed, for example where a claimant believes HMRC has made a mistake about entitlement, then an appeal tribunal can deal with this issue. For example, where HMRC has raised an overpayment because it has made a decision that a single claimant should have claimed as a member of a couple, an appeal can be lodged against the decision that the claimant was a member of a couple. If this succeeds there will be no overpayment. In many cases, it will be necessary to get a full statement of reasons for the overpayment from HMRC in order to decide if there are grounds for appealing the decision.
An appeal must be lodged within 30 days of the date on the written notice of a decision.
Where a person is notified of an overpayment s/he should take advice on whether to appeal the entitlement decision which gives rise to the overpayment. It is possible to appeal an entitlement decision or a decision to impose a penalty to an appeal tribunal. However, from 6 April 2014 the process for appealing has changed. A person wishing to appeal must first request a review of the relevant decision. This is also known as a mandatory reconsideration. It must be requested within 30 days of the date of decision. A person cannot appeal the decision until s/he has done this and has been issued with a Mandatory Reconsideration Notice, informing her/him of the outcome. S/he must then lodge the appeal direct with HMRC within 30 days of the date of the Mandatory Reconsideration Notice. It is not possible to appeal the decision to recover an overpayment that arises due to the entitlement decision.
It is important to consider at the outset of any dispute whether there are grounds for appeal. For example if HRMC makes a decision that a single claim has ended as the person has started ‘living together as husband and wife/civil partners’ with another person, it would be appropriate to appeal if the person has not entered into such a new relationship.
Where a person appeals, recovery of the overpayment should be suspended until the appeal is resolved.
If the appeal is not successful it will then be possible to dispute whether the overpayment should be recovered under the terms of Code of Practice 26 which is discussed in the next section.
HMRC’s Code of Practice COP26 ‘What happens if we have paid you too much tax credit?’ on overpayments and recovery was updated in March 2012. It is available at www.hmrc.gov.uk/leaflets/cop26.pdf. The Code of Practice (the code) provides that overpayments will normally be recovered. The ways of recovering an overpayment are identified, namely:
- automatic recovery from a tax credit award providing the claimant is in the same household in which the overpayment arose;
- making a payment direct to HMRC. This option will be applied where a person is no longer entitled to tax credits or an award has ended due to a change in the composition of the household.
Of the two options, HMRC will normally prefer recovery through adjusting the level of payment on a future award of tax credits. Where a claimant disputes the overpayment by sending in form TC846 (see section 4 below: Writing off an overpayment) recovery will be suspended until HMRC has investigated the matter and reached a decision.
A notice to make direct payments will normally give a person 30 days to pay back the overpayment. However, if a person is facing hardship then HMRC will seek further details and may offer a substantially longer period.
Regulation 12A of the Tax Credits (Payment by the Board) Regulations 2002 sets out that any reduction on a future award will be subject to the following maximum amounts:
- ten per cent for claimants receiving the maximum award (with no reduction for income);
- 100 per cent for claimants receiving only the family element of Child Tax Credit;
- 25 per cent for claimants entitled to Child Tax Credit above the family element or Working Tax Credit below the maximum award or all other awards.
As a couple normally make a tax credit claim jointly, HMRC can seek to recover any overpayment against either member of the couple jointly liable for the overpayment.
Where a relationship has broken down the joint claim for tax credits will end. HMRC will write to both people to tell them about the overpayment. The members of the former couple can decide between them how the overpayment will be divided. However, if such an agreement is not possible, COP26 states that each person will not be asked to pay more than half of the overpayment. It will not be possible for HMRC to recover directly from any further claim made as a single person or as a member of a different couple; the person will have to arrange for direct payments.
From 18 January 2010, HMRC has changed its policy on how and when to apply notional entitlement for people who start living together or separate and who report changes late. In determining any overpayment from the old tax credits award, HMRC will take into account what they would have been entitled to if they had reported the change promptly. This is called the notional entitlement calculation.
From April 2012, a late notification is when the household breakdown is reported over 31 days late. When calculating the overpayment, HMRC will offset any tax credit award the claimant would have been entitled to receive if s/he had reported the change promptly. Claimants must ask for this to be done when disputing an overpayment in these circumstances.
The code sets out two circumstances in which all or part of the overpayment will be written off. These are where the overpayment:
- resulted wholly or partly from the failure by HMRC to meet its responsibilities as set out in the code of practice; or
- will cause hardship to the claimant or her/his family if recovery is initiated. HMRC may also accept payment over a longer period of time in a case of this kind. Each case will be treated on its own merits.
In order for an overpayment to be written off, a claimant needs to dispute the overpayment and ask for it to be reconsidered. This can be done through form TC846 which is available on-line or upon request from HMRC. Any recovery of the overpayment will be suspended while HMRC reconsiders its decision.
The code of practice sets out when HMRC will and will not recover overpayments. It sets out clearly what it sees as its responsibilities and the responsibilities of claimants. It gives guidance, set out below, on what will happen when either party has not met its responsibilities.
The responsibilities of HMRC are that:
- when contacted it will give the correct advice on the information given to it;
- it will accurately record and use information given to it to pay the correct amount of tax credits;
- when notified that an award notice contains an error, it will correct and reissue the notice;
- when it is told of a change of circumstances, it will accurately record what it was told and send a new award notice within 30 days of receiving all the information necessary.
The responsibilities of people claiming tax credits are that:
- they will give accurate, complete and up to date information when making or renewing claims;
- they will report changes of circumstances throughout the year and within one month of the changes occurring;
- they will check award notices and let HMRC know if there are any errors in respect of the claim including family circumstances, hours of work, income, childcare costs and receipt of benefits. This should be done within one month of receiving the award notice and claimants should record the date and manner of notification;
- they should check that any tax credit payments received match the amount on the award notice and let HMRC know if there are differences.
The code of practice sets out what will happen if HMRC, the claimant or both do not meet these responsibilities:
- if the claimant has fulfilled all her/his responsibilities but HMRC has not then the claimant will not be asked to repay all of the overpayment caused by HMRC failure;
- if the claimant has not fulfilled her/his responsibilities and HMRC has, HMRC will generally ask for repayment of the overpayment. For example, if there is a delay of more than one month in contacting HMRC about an error in an award notice then the claimant may be asked to repay the amount overpaid until the date that contact was made;
- if both HMRC and the claimant have failed in their responsibilities then HMRC will look at all the circumstances of the case and may write off part of the overpayment.
The code of practice then sets out how to challenge the recovery of an overpayment.
A claimant can ask for an explanation of an overpayment over the phone or in writing.
If the claimant does not agree that the overpayment should be recovered s/he can:
- dispute the overpayment in writing or by completing form TC846. This is a request for HMRC to look at its decision again. Recovery will be suspended until the disputes process is resolved. The code of practice explains that HMRC will consider whether each party met its responsibilities, will check amounts and will issue a detailed decision;
- appeal any decision about entitlement to an independent tribunal.
All the facts and circumstances of a case will be taken into account before a decision to write off all or part of an overpayment. The code of practice says that an overpayment will only be written off due to financial hardship in exceptional circumstances.
The current code does not set out what circumstances will be taken into account. However, based on practical experience and the previous code, the following factors are likely to be taken into account:
- current and future income plus essential living expenses;
- savings, investments and other assets which could be used in the short or medium term to make payments. In this case, recovery may be temporarily delayed rather than the overpayment written off;
- other liabilities for example, repayments on a mortgage, rent including any arrears, overpayments of other social security payments or other debts;
- other payments due to HMRC and how recovery of tax credits will affect this;
- the length of time it will take to recover the overpayment;
- previous payment history with HMRC;
- whether paying what is owed will result in the claimant not being able to afford essential services such as heating either immediately or over a period of time;
- whether there is at least one child under five or a chronically ill or disabled person in the family whose health could be affected by the recovery of the overpayment, even over an extended period;
- any other relevant factors.
Where a tax credit overpayment is discovered during the year, the award will be adjusted to reduce entitlement and recover all or part of the overpayment by the end of the financial year.
Automatic limits are imposed on the extent to which tax credit payments can be reduced to recover higher payments in the earlier part of the year which could lead to an overpayment for the year as a whole. These limits are the same as for recovery of end of year overpayments:
- ten per cent for claimants receiving the maximum award;
- 100 per cent for claimants receiving only the family element of Child Tax Credit;
- 25 per cent for claimants entitled to Child Tax Credit above the family element or Working Tax Credit below the maximum award.
The recovery of an overpayment by deducting from the current year’s award can lead to hardship for some claimants. If the reduction in the award does cause hardship, claimants can ask HMRC to suspend or waive recovery if there are exceptional circumstances or to reduce the rate at which the overpayment is being recovered. This will mean that it will take longer for the overpayment to be repaid.
Where a person expects her/his income to be less than the amount for the previous year, upon which the provisional award will have been based, it is important to be aware of the following points:
- the first £2,500 of any decrease in income will be ignored. If a person’s 2013-14 income was £11,000 and s/he expects this year’s income to be £8,000 then a revised provisional award will be based on income of £10,500 as £2,500 is added on to the current estimate;
- an increase in tax credits may lead to any entitlement to Housing Benefit reducing and this will need to be considered in deciding if the person will be better off under a revised decision on entitlement;
- importantly, if at annual review time it becomes clear that a person’s annual income was not as low as predicted then there will be an overpayment even if the increase was within £5,000. For example, where the person estimated that her/ his income would be £8,000 but it was in fact £10,900 there will be an overpayment. This is a common cause of overpayments. Once a person notifies HMRC of a predicted fall in income s/he will have to keep careful record of ongoing income and notify HMRC of any change to avoid an overpayment, s/he will not be able to benefit from the £5,000 disregard in such a case;
If a person does not notify HMRC of a fall of income of more than £2,500 until the annual review, s/he should receive a payment of any arrears due to compensate for an underpayment. Such a lump sum is capital for Housing Benefit and is ignored for 52 weeks. The person will not have been overpaid Housing Benefit and will not have lost out on tax credits.
HMRC will deal with advice agencies and other organisations if written authority is produced on form TC689 and the original has been sent to HMRC. Where a couple has jointly claimed then authorisation must be signed by both partners.
From December 2012, HMRC has accepted an electronic version of TC 689, which is available at www.revenuebenefits.org.uk/blog/intermediary-registered-with-hmrc.
In the alternative, information may be given to an adviser where it is clear the claimant (both partners if a joint claiming couple) is with the adviser and consents to the disclosure of information.
There is no right of appeal to an appeal tribunal against a decision to recover an overpayment (save where entitlement to tax credits is being disputed). Where an adviser is unable to negotiate a satisfactory outcome through the code of practice, there are four other options.
First, a complaint can be made to HMRC. A complaint can be made to the Tax Credits Complaints Manager by:
- calling the helpline on 0845 300 3900 or 0345 300 3900 (or from outside the UK 0044 28 9053 8192) or textphone 0845 300 3909;
- writing to: Complaints Manager, Tax Credit Office, PO Box 145, Preston, PR1 4AT; or
- visiting any HMRC Enquiry Centre.
If the complaint is in writing, a person should put ‘Complaint’ at the top of the letter, set out clearly the full name and address, national insurance number and telephone number or e-mail and give the full details of the complaint.
If a person is not happy with the response s/he may ask HMRC to consider it again at the Level 2 complaints stage. A senior officer will look at the complaint again and give a final decision.
Second, if a person is still unhappy s/he may ask the Adjudicator’s Office to consider the complaint. The adjudicator can deal with complaints about:
- poor or misleading advice;
- inappropriate staff behaviour;
- the way discretion has been exercised;
- how HMRC has dealt with requests under the Code of Practice on Access to Government Information.
For more information about complaints see factsheet C/Fs available at www.hmrc.gov.uk/factsheets/complaints-factsheet.pdf plus Adjudicator’s Office leaflet (AO1) available at www.adjudicatorsoffice.gov.uk/pdf/ao1.pdf.
Third, a legal challenge to a recovery could be made through judicial review, for example, on grounds that HMRC has exercised its discretion unlawfully or unreasonably.
Finally, if the way a tax credit claim has been handled gives rise to maladministration, a complaint can be made to the Office of the Parliamentary Commissioner for Administration. The Northern Ireland Ombudsman does not have jurisdiction to deal with complaints of HMRC maladministration. Normally, a claimant must have exhausted HMRC complaints procedures including the adjudicator process before the Ombudsman will deal with a complaint. A complaint must be referred through an MP. Complaints that may be considered include:
- avoidable delays;
- failure to follow correct procedures;
- giving misleading or inadequate advice;
- mistakes in handling claims;
- discourtesy and failure to apologise properly and formally.
12.1 Her Majesty’s Revenue and Customs
Tax Credit Office
Preston PR1 4AT
Local enquiry centres
12-14 Castle Street
Antrim BT41 4JE
Kilpatrick House, 38-54 High Street
Ballymena BT43 6DR
Bridgewater House, 25 Castlewellan Rd
Banbridge BT32 4AX
Beaufort House, 31 Wellington Place
Belfast BT1 6BH
Fern House, 1A Adelaide Avenue
Coleraine BT52 1AJ
Marlborough House, Central Way
Craigavon BT64 1AH
Abbey House, Head Street
Enniskillen BT74 7JL
Moira House, 121 Hillsborough Road
Lisburn BT28 1LA
Foyle House, Duncreggan Road
Londonderry BT48 0AA
McGrath Centre, Margaret Street, Newry BT34 1DE
0345 300 3900
0345 300 3909 (text phone)
0845 302 1429 or 0345 302 3946 (Payment Helpline)
Welfare rights workers priority helpline (Intermediary Helpline)
0845 300 3946 or 0345 300 3946
PO Box 10280
Nottingham, NG2 9PF
0300 057 1111
The Parliamentary and Health Service Ombudsman
Millbank Tower, Millbank
London SW1 4QP
0345 015 4033
12.4 Law Centre (NI)
124 Donegall Street
Belfast BT1 2GY
Advice line: 028 9024 4401; 9.30 am-1.00 pm (Monday to Friday)
Textphone: 028 9023 9938
Western Area office
9 Clarendon Street
Derry BT48 7EP
Advice line: 028 7126 2433; 9.30 am-1.00 pm (Monday to Friday)
For additional information specifically related to migrants, visit: http://www.lawcentreni.org/publications/migrant-workers.html
We publish occasional briefings on specific issues in social security: http://www.lawcentreni.org/publications/other-publications/618.html
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