| T O P I C R E V I E W |
| kazbabe |
Posted - 16/08/2007 : 10:30:38
I have just received a tax credit overpayment payslip, they are asking for £2706 back. last year i moved in with my partner and so changed from a single to a joint. i rung them and told them the changes and was told it would be dealt with.anyway i get my tax award notice to then find that it has not been changed. i ring them to find that they have changeed it has it should of been cancelled, i told them i wasnt told that, but said that i had asked for it to be changed shouldnt they of done it then??  it took awhile before they did do it, and now i find i owe this much back, i dont have this sort of money,i dont work anymore as i had to give it up after having my little boy, as i could not afford the nurseries fees and wouldnt get help with it.i was going to be working for nothing.i have seen on the claim dispute form that its says is this dispute happened while in a joint claim do i put yes?im not sure what i do?they are so useless, i have heard so many people in the same boat tho,im glad im not alone but thats not the point they are supposed to be there to help us not!!!!!!!! |
| 20 L A T E S T R E P L I E S (Newest First) |
| Sarah |
Posted - 24/03/2008 : 21:09:32
Sounds like you're making progress, Kazbabe. It is a long slow process, but hang on in there. |
| kazbabe |
Posted - 22/03/2008 : 12:04:22
well after receiving the paperwork info from tco i have prove i told them on the day in question but die to technical and other errors which theyt admit to its my fault.am in the process of writing a letter of complaint and see what happens, at the moment my mp is stuck as they have now kept telling him other dates.although i am going to write to him again with the paperwork evidence. i am still awaiting the phone calls. |
| kazbabe |
Posted - 11/02/2008 : 19:43:00
in my last letter they have confirmed there was an error when updating my records but because of this they carried on paying me!!!! i didnt ask for them to do this. they also confirmed i submitted my joint claim on 8 april 2006 but did not receive the award notice til 14 july 2006, why was this? because they didnt cancel the single claim to the joint claim.was this my error no because they had all my details and my partners and did nothing about it,even with myself keeping ringing to find out what was happening. |
| kazbabe |
Posted - 11/02/2008 : 19:09:53
unfortunately they are still saying its my fault but as i have now found on this forum someone in the same position as myself i now know it isnt just me with them not cancelling a single claim and starting a joint claim.i have now writtrn off for a sarn and am awaiting the outcome of that.
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| Ali M-W |
Posted - 25/01/2008 : 07:39:53
Just to encourage people to contact their MPs - I have had two emails this week from people whose overpayments - huge ones at that - have been wiped out by their MPs getting involved.
One MP sorted out in 8 weeks what it had taken my correspondent years to do by herself.
Whatever they may say if they don't really want to get involved, MPs do have the power to get things done. Let's use them!
Oracle: What do all men with power want? More power.
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| Alan the Geordie |
Posted - 24/01/2008 : 11:52:00
I'm pleased to hear your MP is still working for you - as they ALL should be - and that you're still fighting.
Don't give in!!
Geordie: "Yon lass's gorra fyece lyke a bagga spanners!"
English: "That lady's face is rather unnatractive" |
| kazbabe |
Posted - 24/01/2008 : 11:05:25
my mp has been really good and is still in my corner,i got another letter this morning telling me that i didnt tell them till the 10th july 06.i know i had to ring again on this day coz they still hadnt changed it.they keep coming up with all different things.what a nightmare but dont worry im still fighting and hope everyone else does too. |
| Sarah |
Posted - 20/01/2008 : 21:14:54
well done, Kazbabe, it's not always easy to get your MP involved and fighting your corner, but when they do it does make a difference. Wish mine was as helpful! |
| Alan the Geordie |
Posted - 20/01/2008 : 18:25:34
Kazbabe
Very well done to have got your MP to support you.
I have posted on this forum so many times the importance - I believe - of letting our MPs know about our problems with this complete abortion of a system that is Tax Credits but often feel like I'm peeing into the wind!
Once again I say; "The way to tackle this is by getting your MPs and the media involved!!"
Keep at it Bonny Lass - you deserve to win this!
Geordie: "Yon lass's gorra fyece lyke a bagga spanners!"
English: "That lady's face is rather unnatractive" |
| Ali M-W |
Posted - 19/01/2008 : 10:18:17
hi Kazbabe, this is a good example of why HMRC has to be challenged, and how helpful it is to send off a Subject Access Request Notification (sometimes called a SAR or SARN, or data request) to get your documents and CDs of taped calls, and proved to HMRC what exactly was said and done. It is very rarely ever as they claim. Also, it is really important, in my view, to have your MP involved.
Good luck, Kazbabe! In my view you deserve a full write off.
Oracle: What do all men with power want? More power.
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| kazbabe |
Posted - 19/01/2008 : 10:11:26
well its still on going.my mp got a letter back from them just before xmas,this was explaining their reasons why it was an overpayment.anyway to cut a long story short in this letter they reckoned i didnt tell them until 12th july 06 that i had moved in with my partner.i checked back on my other letter that they had sent me first time round and this had told me that i had told them on time 6/4/06 but due to computer error nothing was actually cancelled till later.
they cancelled my single claim on 9th july 06 so how could i of told them that i had moved in with my partner on 12th july 06 when it would have already been cancelled and i have another form to show i told them on time.
my mp is more than happy to support me and now i have to write another letter of complaint myself and he has also written to them to tell them he is supporting me through it all.
will keep you all posted on whats happening. |
| Ali M-W |
Posted - 03/12/2007 : 19:46:56
Head of operations? That's quite impressive for an MP! Some can be very good, others apathetic and all things in between, but if you have a good MP prepared to write letters on your behalf and raise questions, that has to be good. Best of luck, and let us know how it goes!
Machine god: WHAT IF YOU FAIL?
Neo: I won't
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| auntieh |
Posted - 03/12/2007 : 19:31:06
Good luck Kazbabe! |
| kazbabe |
Posted - 03/12/2007 : 12:44:08
hi all just wanted you to know that my mp has now written to the head of operations regarding my case.so will let you know once i hear back from him  |
| Ali M-W |
Posted - 16/11/2007 : 07:49:12
Kazbabe, I also found this:
Some of the factors that HMRC will look at when considering reasonable belief include:
• Was the error obvious? (e.g. one partner’s income missing, or 3 children included in the award when there should have been only 2)
• Was more money being paid to the claimant than their award notice said they were entitled to?
• Did the problem occur in the early months of the scheme when award notices were issued late and some claimants could not determine what they should have received, or payments had started before the award notice arrived?
• Was there a delay in the award notice being issued, or multiple award notices, so that it was not clear what level of payments should be expected or when?
• Were there delays in processing the claim or change of circumstances?
• Did the claimant contact us several times, and we failed to take the appropriate action, for example, to amend a tax credits award to reflect a change of circumstances that had been reported?
Will have to find the link for this again.
Agent Smith: I hate this place, this zoo, this prison, this reality, whatever you want to call it.
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| Ali M-W |
Posted - 16/11/2007 : 07:27:04
I wrote this some time ago - just a few ideas I'd had. It may be of interest, it may not...
The Reasonable Belief test.
I am no lawyer, but the Reasonable Belief test which the Revenue apply to tax credit claimants to judge whether their ‘in good faith’ belief that their tax credit award was right was a reasonable belief to have (despite the award being wrong) does seem to be unfairly applied. The following extract from http://www.hmrc.gov.uk/manuals/epmanual/ep6618.htm notes considerations which should be taken into account when making a decision as to what a claimant should reasonably have believed in relation to their claim:
EP6618 - Underpayments/Overpayments: ESC A19: Reasonable Belief
For tax to be given up ...[etc., etc. as above]...BS Shipley will advise in any case of difficulty.
http://www.hmrc.gov.uk/manuals/epmanual/ep6618.htm
According to the guidance above, which is not tax credit specific but related generally to taxation, it is quite evident that HM Revenue and Customs are not applying the reasonableness test reasonably! They certainly do not take into account ‘the nature of the arrears [for ‘arrears’ read ‘overpayment’] or what caused them. They do not ‘weigh up what the taxpayer has, or has not, been told’, for if they did, they would soon realize how misleading advertisements such as these are:
“If you’re bringing up children you’re contributing to the UK. That’s why tax credits are changing so that nine out of ten families are now entitled to them… So if you’ve earned it, make sure you claim it because it’s money with your name on it.”
…where there is no mention of overpayments, recovery or claimant responsibility to check and double-check everything the Revenue does. Nor the fact that sheets clearly specifying what the claimant has to check on their award notices have only recently been sent to claimants along with their award notices.
Misleading information and muddled actions on the part of HMRC are commonplace in the Tax Credit Casualties’ experience, although this is overlooked when HMRC decide, as judge and jury in their own cause, whether claimants could reasonably have known something was wrong with their award.
If taxpayers or claimants are less likely to have reasonably believed their award was right if they have a representative, does it therefore not follow that if they lack professional representation (as indeed is usually the case with tax credit claimants) they are more likely to be ‘reasonably’ fooled by the over-complex tax credit award system?
As for reasonable belief changing over time, HMRC have already admitted that in the earlier years of the tax credit system communication was not particularly good, and have now made the guidance on what claimants need to do – whether it is advising of any changes, checking those changes have been followed up by new award notices, or giving a checklist of things claimants need to double-check on each award notice – much more straightforward and explicit. Yet they fail to recognize the impact of their previous unclear and over-wordy guidance booklets on people’s understanding and beliefs.
Regarding the issue of mental capacity, when the reasonable belief test is applied (ie. whether those assessing a person’s capacity made a reasonable judgement such as another person with their degree of expertise and knowledge would have done in a similar situation), this has been described as ‘the most objective test’ in the British common law system, and is based on the ‘Clapham omnibus test of reasonableness: what would a reasonable man think in such circumstances?’ This quote is taken from http://www.publications.parliament.uk/pa/cm200304/cmstand/a/st041021/am/41021s01.htm
I assure my hon. Friend that, in law, reasonable belief is a high test to meet. In the British common law system, it is widely understood as the most objective test. She may remember the Clapham omnibus test of reasonableness: what would a reasonable man think in the circumstances? She may recall the concept of diminished responsibility in criminal cases.
The issue of what a reasonable person might think in such circumstances does not even enter into the psyche of the Tax Credit Office. The hundreds of thousands of disputed overpayment recovery cases which the adjudicator alone considers each year is a good indication that a huge number of people are thinking along similar lines. It is widely recognised that people trust the Revenue to calculate their taxes and tax credits correctly. If a huge number of people share this view, it is self-evident that this is what reasonable people do think. In an oral communication to me, ------ of the -- ---- --- ---- --- said that HMRC do not do a survey of a number of lay people and see what percentage would act in one way or another, and then say, ‘65% would think this – and therefore to think this would be reasonable’. There is no such objective test, and whilst as a general common law principle the test of reasonableness would seem objective, when it comes to the Revenue, its own test is highly subjective, and based on its own hindsight, when the very fact that the test needs to be applied at all is due to the Revenue not spotting its own errors until very much later. This approach is problematic and needs legal scrutiny. People in criminal cases where guilt or innocence is at stake are often given the benefit of the doubt using the concept of diminished responsibility. With no-one to argue that the claimant did not have the benefit of any specialist knowledge and did not fully understand their claim but the claimant themselves, this is not a concept the Revenue will ever accept. Yet there will be claimants who have learning difficulties or people whose first language is not English, who would benefit from greater recognition by the Revenue of the obscurity of much of its correspondence even for claimants fluent in English and with an above average education.
With sexual offences, the guidance is:
We have always taken the view in this country that a person is guilty only if he has a guilty mind—although there are some offences that do not fall into that category. If someone accused of an offence of rape reasonably believes that another person has consented, then—however unreasonable that belief might appear to someone else—he is not guilty if someone decides that he did reasonably hold that belief.
http://www.publications.parliament.uk/pa/cm200203/cmstand/b/st030909/am/30909s03.htm
The alleged rapist could be seen, therefore, to have rather more rights than claimants receiving tax credit overpayments, for he can be pronounced ‘not guilty if someone decides that he did reasonably hold that belief’ that his accuser actually consented. For him all the circumstances of the alleged crime are considered, and he has the opportunity to present his case – supported by a lawyer funded by the state – and should there be any question that any belief he might have had that his accuser consented was quite reasonable in the circumstances, he will be acquitted. Unfortunately, it doesn’t work this way with tax credits, and the onus is on the claimant to prove that thinking their award was right was the only thing anyone in that same situation could possibly think, rather than on the Revenue to prove that this would be such a rare belief for anyone to have in that situation that it could only be an unreasonable belief.
It has long been held that the reasonableness test applied by the Revenue is unfair. In ‘Tax Credits: putting things right’ the Ombusdman ‘recommended that consideration should be given to the adoption of a statutory test for the recovery of excess payments and overpayments of tax credits, similar to the test that is currently applied to social security benefits, where a benefit must be repaid if the claimant has misrepresented or failed to disclose a material fact, with a right of appeal to an independent tribunal.’ Mr Gray promised a review of the reasonableness test, to ‘bring rather greater transparency and clarity to the criteria to be used in judging reasonableness’, and the report stated, ‘We welcome the Revenue’s review of the reasonableness test and support the need for a solution modelled on the well-established social security benefits’.
It is high time that this unreasonable ‘reasonableness test’ or ‘reasonable belief test’ is done away with, for judgements are subjective, flawed, not made as the result of any empirical research on patterns of claimant belief, unfairly applied, and are not able to be challenged through an independent tribunal.
Agent Smith: I hate this place, this zoo, this prison, this reality, whatever you want to call it.
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| Ali M-W |
Posted - 16/11/2007 : 07:21:42
 EP6618 - Underpayments/Overpayments: ESC A19: Reasonable Belief
For tax to be given up under ESC A19 the "reasonable belief" test must be satisfied. The important point to remember is that the test is not whether the taxpayer believed his tax affairs were in order, but whether it was reasonable for him to believe it.
You will meet cases where the taxpayer might genuinely believe that he does not owe any further tax, but where it was not reasonable for him to hold that belief, given all the circumstances. This is a matter of judgement and you will need to reach a decision taking into account all the surrounding factors, for example, the taxpayer's likely level of understanding of tax matters, his state of health and his age. The serious ill health of a close relative should also be taken into account, but not claims that the taxpayer was too busy or otherwise preoccupied to pay full attention to his tax affairs.
In all cases your aim should be to reach a common-sense decision using all the known facts, and you should always make a brief note of your reasoning on the taxpayer's record (EP6622).
There will not always be an obvious answer, but in a great many cases it will be clear at once that the test is not satisfied; for example, a large car benefit not coded out or an obviously unjustified repayment. Where the issue is less clear-cut you will need to take account of a range of factors, including
• The nature of the arrears and what caused them.
• The size of the arrears. Generally speaking, the larger the sum the less likely it is that the reasonable belief test will be satisfied, but you will need to take account also of the taxpayer's own particular circumstances. What might be a substantial sum to the average taxpayer may be less so to a wealthy individual with several sources of income and gains.
• What information had been given to the taxpayer over the relevant period, for example notices of coding, explanatory leaflets such as P3, letters, phone calls etc? You will have to weigh up what the taxpayer has, or has not, been told and form a view as to whether it was reasonable for him to believe his tax affairs were in order.
• Had we given any misleading information to the taxpayer, for example, telling him repeatedly that his code was correct, and then belatedly discovering that it was not? In these circumstances it will often be hard to resist a claim that the reasonable belief test has been satisfied.
• Had our actions caused the case to become especially muddled or hard to follow? (It is not normally enough that a taxpayer's affairs might be complex anyway).
• If the taxpayer has been professionally represented then it will usually be harder to claim that the reasonable belief test is satisfied, because we would expect an agent to spot failures or errors more readily.
• Reasonable belief may change over time. For example, an incorrect code may continue without change beyond the point when it is reasonable for the taxpayer to believe his affairs are in order. The reverse may apply if, during the build-up of the arrears, an event took place that caused the taxpayer's reasonable belief to change, such as a letter from the tax office telling him that his affairs are in order. In any case where you consider there has been a change over time in what it was reasonable for the taxpayer to believe, or if he makes such a claim, seek the advice of PAYE Technical Advice - Shipley before agreeing to any time apportionment.
This list is not exhaustive and you will come across other factors that you feel should have a bearing on your decision. Where the issue is so finely balanced that you find it hard to form a judgement, give the taxpayer the benefit of the doubt. BS Shipley will advise in any case of difficulty.
http://www.hmrc.gov.uk/manuals/epmanual/ep6618.htm
Agent Smith: I hate this place, this zoo, this prison, this reality, whatever you want to call it.
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| Ali M-W |
Posted - 16/11/2007 : 07:15:33
The bit you can't read says, 'An Advisor told me it was correct when I queried it'.
Agent Smith: I hate this place, this zoo, this prison, this reality, whatever you want to call it.
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| Ali M-W |
Posted - 16/11/2007 : 07:14:20
For example:
You told me a system problem occurred at the same time as a change was made to my award, so you could not reasonably expect me to understand that my new award amount was incorrect.
You made a system error resulting in a large payment, but it was reasonable of me to think this award was right because….my awards had been erratic and irregular so it was not out of the ordinary.
An Advisor told me it was correct when I queried it.
I questioned the overpayment but‘received incorrect advice from an officer of the revenue or one of its agents’, so I reasonably thought my award correct as they told me it was.
The error was not obvious because …
I was paid only what my award notice said I was entitled to, so I was reasonable to think my award was right.
A combination of changes occurred, which your system could not cope with, so whilst you calculated my award incorrectly, it was reasonable of me not to know that this was so.
Your guidance states that ‘where the customer has reported a change of circumstances and their case has been subject to a system error at the time the change was applied there is scope for confusion on the claimant’s part’, and as this happened to me, it was reasonable for me to believe my award was right.
I reported a decrease in my household income caused by …. and it was therefore reasonable for me to expect an increase in entitlement (your guidance states that you ‘would not necessarily expect’ claimants to query an increased award in such circumstances).
Multiple errors were caused by your system, and your guidance states ‘Where we have made more than one error on the case there is a potential for confusion on the part of the claimant. If there have been multiple errors and subsequently attempts to correct the award, this reduces the chances of it being reasonable to expect the customer to recognise the error’, so it was reasonable for me to consider my award correct.
The overpayment was system-generated, and whilst it presented as a large payment, I did not suspect this was wrong because my payments have always been erratic, and it was therefore reasonable for me to think it was correct (your guidance states: ‘If the claimant notified us of a change, was a large payment made when it would have been more reasonable to expect an increase in their regular payments?’
There was a delay in the award notice being issued/multiple award notices, so that it was not clear what level of payments I should expect.
Literacy or language difficulties were a significant factor, which your guidance says you must consider.
   
Agent Smith: I hate this place, this zoo, this prison, this reality, whatever you want to call it.
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| Ali M-W |
Posted - 16/11/2007 : 07:07:32
I think we need to break out of the constraints of sending disputes which only describe what we did and they did, or what they didn't do - I think we need to take it to a new level, personally. There's reams of guidance in the Tax Credit Manual as to when HMRC could interpret 'customer' understandings as more or less reasonable, and I think we should USE it more to win our cases. Don't let's just tell them we kept telling them things and they ignored it - for instance - but let's quote their own manual back at them, and show them that we can even beat them under their own restrictive rules - because after all we are morally right! I will find some 'reasonableness test' guidance and post it here in case it helps.
Agent Smith: I hate this place, this zoo, this prison, this reality, whatever you want to call it.
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