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The “other relevant childcare support” question
The “other relevant childcare support” question
The claimant argues that he was not eligible because he was in receipt of “other relevant childcare support” during a “relevant period”. In this regard, he relies upon his award of the childcare element of WTC.
His analysis is flawed because the childcare element of WTC is not “other relevant childcare support”. First, this is because the childcare element of WTC, and indeed tax credits as a whole, are provided by HMRC and not a Minister. It therefore falls outside the scope of the definition of “other relevant childcare support”:
“other relevant childcare support” is defined as “any payments towards the costs of childcare which are made out of funds provided by a national authority…”
HMRC is not a “national authority” as defined by s.13(3) of the 2014 Act. HMRC was established under the Commissioners for Revenue and Customs Act 2005 (“the 2005 Act”). By s.1 of that Act the Commissioners were appointed by Letters Patent. By s.2 they Commissioners may appoint staff, known as Officers. Such appointments may be made only with the approval of
the Minister for the Civil Service as to terms and conditions of service (s.2(5)). A new section was inserted into the MCA 1975 Act at s.5A by s.8 of the 2005 Act. This section provided that the Commissioners and their Officers are to be treated as Ministers of Crown, but only for the purposes of s.1(1)(a) and (c) of the MCA 1975, namely the power of the Crown to make an Order in Council: (1) providing for the transfer to any Minister of the Crown of any functions previously exercisable by another Minister of the Crown and (2) directing that functions of any Minister of the Crown shall be exercisable concurrently with another Minister of the Crown, or shall cease to be so exercisable. In other words, s.5A of the MCA 1975 gives the Crown power to transfer certain functions to and from HMRC, but that power does not make HMRC a Minister of the Crown and it clearly cannot affect tax credits because s.5A(3) prohibits the transfer of certain of HMRC’s functions, including “the payment and management of tax credits for which the Commissioners of Inland Revenue were responsible before the commencement of this section”.
- Heading
- Section 1
- w as HMRC v RS (No.2) (TC) [2022] UKUT 246 correctly decided in its interpretation of Article 7(6) of the Welfare Reform Act 2012 (Commencement No.23 and Transitional and Transitory Provisions) Order
- SC946/21/00244 (on appeal UA-2023-001612-TC ) dated 9 December 2020 that he had made a valid declaration of eligibility for tax-free childcare and so his entitlement to tax credits was correctly termi
- SC946/19/02420 (on appeal UA-2023-001611-TC ) dated 9 August 2019 that he was not able to make a new claim for tax credits for any period after 19 March 2019
- The Tribunal’s Statement of Reasons
- The Statutory Framework
- The Claimant’s Submissions
- entitlement period and therefore terminated his tax credits award immediately prior to that date following that termination, HMRC issued various decision notices and other notices, which were subject to a previous appeal. The Upper Tribunal in UA-202
- the 2018/2019 tax year. The decision notice was issued to the claimant on 11 December 2020
- Ground 2: The alleged “declaration of eligibility” was not “valid”
- he was in fact an eligible person, because tax credits were not payable in respect of the relevant period
- Issues raised by HMRC
- Ground 3: S.30 of the 2014 Act no longer applies
- UA-2023-001611-TC
- in relation to Appeal SC946/21/00244 (“Appeal 1”): on 14 March 2019, the
- in relation to Appeal SC946/19/02420 (“Appeal 2”): he was not permitted to apply for tax credits in August 2019
- Factual Background
- The TFC Scheme
- Appeal 1
- The Legal Framework
- by s.5(1) the length of the “entitlement period” is 3 months, subject to any regulations altering that length
- the day on which the declaration was made was 14 March 2019. This was the claimant’s first application
- the “relevant day” was 20 March 2019
- The declaration question
- https://webarchive.nationalarchives.gov.uk/ukgwa/20190317223446/https:/www.gov.uk/tax-free-childcare which contained the portal which the claimant would have used to make his application
- ( https://webarchive.nationalarchives.gov.uk/ukgwa/20190321044737/https:/www.gov.uk/apply-30-hours-free-childcare )
- The validity question
- in this regard, the position is similar to that in HMRC v Secretary of State for Work and Pensions and GS [2023] UKUT 9 (AAC) where the Upper Tribunal considered a regulation containing a requirement
- The “other relevant childcare support” question
- HMRC’s non-ministerial position is also clear from the Explanatory Notes to the 2005 Act
- if he is right, a recipient of the childcare element of WTC would necessarily
- The ceasing to have effect argument
- comity: should the Upper Tribunal follow RS (No.2) in the interests of comity?
- The Legal Framework
- RS (No.2)
- Comity
- The “for the next tax year” argument
- Discussion
- The validity question
- The “other relevant childcare support” argument
- The ceasing to have effect argument
- Appeal 2
- Conclusions