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browngirl
Rank; Hector Tax Inspector
United Kingdom
10 Posts |
 Posted - 16/07/2008 : 19:15:10
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Hello again,
I said I would let you know how I got on so here it goes. Been in receipt of incapacity benefit since 1993 was unaware in 2003 as the HMRC were that my benefit wasnt counted as income. This year when renewed my claim with the years figures, they told me that my benefit didnt count and never has. They told me that I could claim back 2 years and to appeal. I received backpayment for last tax year 07/08 and appealed for previous tax years under the basis I was unaware of the facts.
I have received 3 letters from hmrc with the outcome of my appeal for 03/04-05/06 telling me I cannot appeal more than 13 months after the decision notice is received.
I was initially told I could go back 2 years. So I was interested if anybody there knows about this 13 month appeal deadline??
Why is it they can go back and claim overpayments, but not pay back underpayments.
Not sure what to do next, so any help would be great.
Thanks
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missfroy2
Rank; Captain Gordon
236 Posts |
 Posted - 16/07/2008 : 19:34:50
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Under the legislation you have 30 days to appeal a decision. A late appeal can be allowed, but not more than 12 months from the end of the appeal period (so 12 months + 30 days gives the commonly mentioned 13 months).
I was surprised that you were initially told you could backdate longer, actually not surprised really because it was wrong advice.
I think HMRC would probably say that the information was in the guidance notes so should have been aware of the facts - of course finding it in the guidance notes and understanding the impact is not easy and it is a common mistake.
I can't really think of any other way to have the awards changed. HMRC only have certain powers to re-open finalised awards - appeal is one of them which obviously is no good. Official Error is the other, but I think that would fail because of the guidance argument above.
Your point re overpayments - the fact is they can't go back an claim overpayments. They can claim overpayments that were identified in the past, but they cannot come along now and state that something say from 05-06 is wrong and just change it creating an overpayment. They too would have to have a basis for reopening the award...which is what all the trouble was about last year.
The continuing issues around overpayments are that they are still collecting overpayments that occurred in previous years, not that they are just now establishing them (except in a very few say discovery of compliance cases).
MF2 |
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browngirl
Rank; Hector Tax Inspector
United Kingdom
10 Posts |
Posted - 16/07/2008 : 21:01:45
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Thank you for the fast reply, very kind of you.
Thanks for explaining about the 13 month time limit.
The problem I have is that I was completely unaware that my IB benefit was NOT counted as income, until I was informed by phone a few months ago when giving in my husband income details for the last tax year. I have since rang the hmrc and there are still staff unaware of this fact, so how was I supposed the know? sorry that isnt a question to you but to them. I have continued from the original claim and knowing my circumstances havent changed when the renewal came in, I just give details of income. It was only by complete fluke that the member of staff asked me how long I had been on IB and she informed me that I should appeal, and should be able to go back 2 years.
Dont know if it is worth me doing anything else to try and claw something back. I feel that I have been done by them for years.
Is is worth pursuing do you think?
Thanks |
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missfroy2
Rank; Captain Gordon
236 Posts |
Posted - 16/07/2008 : 22:30:22
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What year did you make your claim? - the easiest thing would be to check the guidance notes for that year.
The problem with the guidance notes (I think I checked last time you posted and I think the guidance notes are right) is that they were incredibly lengthy and difficult to understand.
If it is in the guidance notes from the year you applied (and in the renewal notes) then it makes the argument even more difficult.
As I said before, HMRC need a reason to go in and amend the award and I cannot see an avenue in at the minute for 2006-2007 and earlier.
At a stretch maybe using the official error, but that only works if the claimant has not contributed to the error, and I suspect HMRC would counter that as they have it in the guidance notes that accompany the claim form it was part claimant error.
However, worth a complaint at the very least. Explain the circumstances, but it will look better if you check the guidance notes first. Let me know the year and I will have a look for a back copy tomorrow. If it is in then, then complain about the poor explanation and the fact that their helpline staff do not know about it. Ask for compensation to the amount that you have lost out, there is no harm in asking but I wouldn't rely on getting anything.
I am glad the mistake is rectified now and that you will get the correct amount in future.
MF2 |
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browngirl
Rank; Hector Tax Inspector
United Kingdom
10 Posts |
Posted - 17/07/2008 : 09:26:38
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Thanks once again MF2 for the reply and advice.
My original claim was from the year tax credit started, which I think was 2003/2004. I dont believe there were any notes stating if you were on IB before 1995 it didnt count as income. Dont know if you can find that out somehow? If it just said 'non taxable' IB it wouldnt have meant anything to me as I have only recently become aware that IB is non taxable, and again that was by accident when changing a saving account.
Your post gives me a bit of hope that maybe I should continue to pursue it, so thanks for that.
Maybe it would be a good idea to seek help from CAB when doing a letter of complaint?
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missfroy2
Rank; Captain Gordon
236 Posts |
Posted - 17/07/2008 : 10:37:01
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I have the 2004 claim form notes, but have not yet found a 2003 version.
Basically - question 5.2 says to enter the taxable social security benefits you have received. It then prompts you to use the working sheet below to know which ones to include.
Under IB it says:
'Incapacity Benefit
Include benefit paid after the first 28 weeks of incapacity (at
the short term higher and long term rates) together with any
child dependency increase. If any tax was deducted from your
benefit, enter the amount due before the tax was taken off.
Do not include benefit paid in the first 28 weeks of incapacity
(at the short term lower rate) or benefit paid for a period of
incapacity that began before 13 April 1995 and for which
Invalidity Benefit used to be payable or any child dependency
increase with these payments.
If you started work and gave your employer a P45U showing
these details, do not include them here.'
I believe the same things was in 2003 notes, but I will see if I can find a copy to double check.
MF2 |
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browngirl
Rank; Hector Tax Inspector
United Kingdom
10 Posts |
Posted - 17/07/2008 : 10:52:36
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Have to say I am amazed, as it states it quite clearly. I have no idea why I would have missed that as I was on invalidity from 1993. Maybe I just saw IB and wrote it in without reading the notes. Looks like it was my stupid mistake and I have continued to make it ever since. Thank goodness I got Amy on the phone at HMRC who informed me of my mistake. Thanks so much for looking that up for me.
Can I plead ignorance? not sure how to approach it now any ideas would be fantastic?
I could kick my myself that I have been so ignorant |
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missfroy2
Rank; Captain Gordon
236 Posts |
Posted - 17/07/2008 : 12:38:10
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I have just had someone look at the 2003 version of the guidance notes and they have confirmed the text from that one is:
Excluding benefit paid in the first 28 weeks of incapacity and benefit paid for a period of incapacity that began before 13 April 1995 and for which Invalidity Benefit used to be payable.’
I am not sure what argument can be put forward, as it was it was going to rely on a complaint which wouldn't have actually had the awards changed, but with the guidance notes I think it is going to be difficult get back the money that has been lost.
The only thing is you could still complain - but again I suspect TCO will give little consideration given that they too will check the guidance notes.
Still, no harm in writing a letter of complaint if you feel that the notes were not easy to understand.
MF2 |
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browngirl
Rank; Hector Tax Inspector
United Kingdom
10 Posts |
Posted - 19/07/2008 : 12:02:58
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Thank for the reply again...
Just a thought?
The letter I received saying I was too late to appeal was from the T.C office. I have received another letter from T.C appeals.This states that my appeal has been sent to the tribunals service for them to decide if it will be admitted. It is then up to them to decided if they will hear it. The door hasnt quite shut in my face YET by the sounds of it. I have a telephone number for the Tribunal Service in Newcastle so may phone them to see where I stand.
Is this usual practice? I have a feeling you would know better than anyone?
Thanks again |
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Appeal refused under 13 month rule !!
