UT UA-2024-001027-HRP - [2025] UKUT 227 (AAC)

This case concerns JG’s entitlement to child tax credit and working tax credit. It was registered on the Administrative Appeals Chamber’s database with the HRP suffix, which signifies a Home Responsibilities Protection case. That was a mistake, but it has not affected the handling of the appeal or its outcome.

What happened

JG is a citizen of the United Kingdom. MP is his partner and a citizen of Slovenia. At the time with which this case is concerned, they were a couple and had three children. In approximately May 2018, MP returned to Slovenia to look after her mother and her younger siblings. This move became permanent in 2019, when the children moved to live with her. They were in school in Slovenia from September 2019. MP has never been employed or self-employed in Slovenia.

The appeal to the First-tier Tribunal was against a decision of the Commissioners in respect of JG’s entitlement to tax credits in the 2021/2022 tax year. the Commissioners’ submission to the First-tier Tribunal also explained their decision for the 2022/2023 tax year. As there was no appeal in respect of that year, this was simply for information.

The decision on the 2021/2022 tax year was that JG was entitled only in respect of the inclusive period from 6 April 2021 to 24 August 2021. The first date of that period was the start of the tax year. The last date of the period was the day on which JG had been absent from the United Kingdom for 12 weeks. The Commissioners decided that after that date JG was no longer entitled to tax credits. The precise date on which JG left this country was not clear. He had said in an interview that he left on 1 June 2021 and accepted that that was the best evidence he could give. The Commissioners and the tribunal proceeded on that basis. JG returned to the United Kingdom on 17 December 2021.

Domestic law

The relevant legislation is the Tax Credits Act 2002 and the Tax Credits (Residence) Regulations 2003 (SI No 654). In order to be entitled to tax credits, a person must be present in the United Kingdom: section 3(3) of the Act. Regulation 3(1), made under the authority of section 3(7), provides that the person must also be ordinarily resident in the United Kingdom. Taking section 3 and regulation 3(1) together has this effect: entitlement to tax credits depends on the person being both present and ordinarily resident in the United Kingdom.

I will deal with ordinary residence first. JG has always been ordinarily resident in the United Kingdom. MP ceased to be ordinarily resident when she moved permanently to Slovenia in 2019 and was, therefore, no longer entitled to tax credits. JG was, though, entitled to rely on EU law to claim tax credits in respect of them.

Now I come to presence, which is what this case is about. Regulation 4 provides that a person may be treated as present in the United Kingdom despite being absent. The maximum period is 52 weeks (see regulation 4(2)), which is another reason why MP was not entitled to tax credits after being in Slovenia for a year. Otherwise, the permitted period of absence depends on the circumstances (see regulation 4(1)). In JG’s case, the Commissioners treated that as 12 weeks. The last day of that period was 24 August 2021, which the Commissioners treated as the last day of his entitlement to tax credits. As the Commissioners accepted in their responses to the appeals in the First-tier Tribunal and the Upper Tribunal, the permitted period of absence in JG’s circumstances was 8 weeks, not 12. So, the award is more generous than it should have been.

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