Decision Summary Information

Back to Results | Search Again | Most Recent Decisions

Neutral Citation Number:	2015 UKUT 708 AAC
Reported Number:
File Number:	CTC 3869 2014
Appellant:	HA v
Respondent:	Her Majesty's Revenue and Customs (TC)
Judge/Commissioner:	Judge M. R. Hemingway
Date Of Decision:	15/07/2015
Date Added:	13/12/2017
Main Category:	Tax credits and family credit
Main Subcategory:	couples and joint claims
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2018] AACR 10 Tax credits – joint and single claims – section 3(3)(a) Tax Credits Act 2002 - meaning of ordinary residence in the United Kingdom The appellant, a permanent UK resident, had a husband who held a Ghanaian passport. For much of their marriage they had lived separately in different countries. From November 2010 to July 2011 and again from October 2011 to March 2012 they lived together in the UK, for some of this time the husband had been in paid employment, he was on the electoral roll in April 2011 and from October 2011 the couple were joint tenants. In March 2012 the husband returned to Ghana. The appellant claimed tax credits for the 2011/2012 tax year as a single claimant. The Tax Credits Act 2002 provides for a claim to be made jointly by members of a couple if they are both in the UK and where someone is eligible to make a joint claim they cannot claim as a single claimant. Under the Tax Credits (Residence) Regulations 2003 (SI 2003/654) a person shall not be treated as being in the UK for Tax Credits purposes if he is not ordinarily resident in the UK. On reviewing the claim at the end of the tax year Her Majesty’s Revenues and Customs decided that the appellant had not been entitled to claim as a single claimant. The appellant appealed, arguing that her husband was only ever in the UK on a temporary basis and should not be treated as being in the UK for the purpose of the regulations. The First-tier Tribunal (F-tT) dismissed the appeal, deciding that in April 2011 the couple were living in the same household and the husband was ordinarily resident in the UK. The Upper Tribunal upheld that decision. The question before the Court of Appeal was whether the appellant was entitled to make a claim for tax credits jointly with her husband and, hence, unable to claim individually. It was argued on behalf of the appellant that it was not apparent that the F-tT had applied the correct legal test when considering whether her husband was “ordinarily resident”, that the conclusion that he was “ordinarily resident” in the UK was not one that was open to the F-tT on the facts because his residence was occasional (not ordinary residence) and the tribunal had wrongly had regard to events subsequent to the key date of 6 April 2011 when making its decision. Held, dismissing the appeal, that: 1. the F-tT did not misdirect itself as to the test it had to apply, it made specific reference to the appellant’s skeleton argument which included a summary of the relevant legal principles, had adjourned the matter to obtain further submissions and had sought to apply the guidance as to the present law (paragraphs 26 to 27); 2. the conclusion that the husband was ordinarily resident in the UK on 6 April 2011 was clearly open to the F-tT on the materials before it - he had been living with the appellant for several months, had paid work and was on the electoral roll. There was evidence that he maintained strong links with Ghana but it was possible to be ordinarily resident in the UK and another country and it was open to the F-tT to decide that he was resident “for settled purposes as part of the regular order of his life for the time being, whether of short or long duration”: R (Shah) v Barnet LBC [1983] 2 AC 309 (paragraphs 28 to 33); 3. the F-tT was entitled to consider events after 6 April 2011 in order to decide whether the husband was ordinarily resident on 6 April 2011. The focus must be on the position on the particular date but subsequent events are capable of being relevant, as they may cast light on what the position was on the key day: Levene v Inland Revenue Commissioners [1928] A.C. 217 followed (paragraph 35).
Decision(s) to Download:	[2018] AACR 10.ws.pdf