Tax Credits Act 2002

• “benefit offence“ means any of the following offences committed on or after the day specified by order made by the Treasury—an offence in connection with a claim for a disqualifying benefit;an offence in connection with the receipt or payment of any amount by way of such a benefit;an offence committed for the purpose of facilitating the commission (whether or not by the same person) of a benefit offence;an offence consisting in an attempt or conspiracy to commit a benefit offence;

• “disqualifying benefit” has the meaning given in section 6A(1) of the Social Security Fraud Act 2001;

• “disqualifying event“ means—the conviction falling within subsection (1)(a);the agreement falling within subsection (1)(b);the caution falling within subsection (1)(c);

• “relevant offence” has the meaning given in section 6B of the Social Security Fraud Act 2001.

36B

• (1) Where—

• (a) the conviction of any person of any offence is taken in account for the purposes of the application of section 36A in relation to that person, and

• (b) that conviction is subsequently quashed,

all such payments and other adjustments shall be made as would be necessary if no restriction had been imposed by or under section 36A that could not have been imposed if the conviction had not taken place.

• (2) Where, after the agreement of any person (“P”) to pay a penalty under the appropriate penalty provision is taken into account for the purposes of the application of section 36A in relation to that person—

• (a) P's agreement to pay the penalty is withdrawn under subsection (5) of the appropriate penalty provision, or

• (b) it is decided on an appeal or in accordance with regulations under the Social Security Act 1992 or the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)) that the overpayment to which the agreement relates is not recoverable or due,

all such payments and other adjustments shall be made as would be necessary if no restriction had been imposed by or under section 36A that could not have been imposed if P had not agreed to pay the penalty.

• (3) Where, after the agreement (“the old agreement”) of any person (“P”) to pay a penalty under the appropriate penalty provision is taken into account for the purposes of the application of section 36A in relation to P, the amount of any overpayment made to which the penalty relates is revised on an appeal or in accordance with regulations under the Social Security Act 1998 or the Social Security (Northern Ireland) Order 1998—

• (a) section 36A shall cease to apply by virtue of the old agreement, and

• (b) subsection (4) shall apply.

• (4) Where this subsection applies—

• (a) if there is a new disqualifying event consisting of—

• (i) P's agreement to pay a penalty under the appropriate penalty regime in relation to the revised overpayment, or

• (ii) P being cautioned in relation to the offence to which the old agreement relates,

the disqualification period relating to the new disqualifying event shall be reduced by the number of days in so much of the disqualification period relating to the old agreement as had expired when subsection 36A ceased to apply by virtue of the old agreement, and

• (b) in any other case, all such payments and other adjustments shall be made as would be necessary if no restriction had been imposed by or under section 36A that could not have been imposed if P had not agreed to pay the penalty.

• (5) For the purposes of section 36A—

• (a) the date of a person's conviction in any proceedings of a benefit offence shall be taken to be the date on which the person was found guilty of that offence in those proceedings (whenever the person was sentenced) or in the case mentioned in paragraph (b)(ii) the date of the order for absolute discharge, and

• (b) references to a conviction include references to—

• (i) a conviction in relation to which the court makes an order for absolute or conditional discharge,

• (ii) an order for absolute discharge made by a court of summary jurisdiction in Scotland under section 246(3) of the Criminal Procedure (Scotland) Act 1995 without proceeding to a conviction, and

• (iii) a conviction in Northern Ireland.

• (6) In this section “the appropriate penalty provision” has the meaning given by section 36A(2)(a).

36C

• (1) If—

• (a) a person (“the offender”) is convicted of one or more benefit offences in a set of proceedings (“the current set of proceedings”),

• (b) within the period of five years ending on the date on which the benefit offence was, or any of them were, committed, one or more disqualifying events occurred in relation to the offender (the event, or the most recent of them, being referred to in this section as “the earlier disqualifying event”),

• (c) the current set of proceedings has not been taken into account for the purposes of any previous application of this section in relation to the offender,

• (d) the earlier disqualifying event has not been taken into account as an earlier disqualifying event for the purposes of any previous application of this section in relation to the offender, and

• (e) the offender is a person who would, apart from this section, be entitled (whether pursuant to a single or joint claim) to working tax credit at any time within the disqualification period,

then, despite that entitlement, the restriction in subsection (3) shall apply in relation to the payment of that benefit in the offender's case.

• (2) The restriction in subsection (3) does not apply if the benefit offence referred to in subsection (1)(a), or any of them, is a relevant offence.

• (3) Working tax credit shall not be payable for any period comprised in the disqualification period—

• (a) in the case of a single claim, to the offender, or

• (b) in the case of a joint claim, to the offender or the other member of the couple.

• (4) Regulations may provide in relation to cases to which subsection (3)(b) would otherwise apply that working tax credit shall be payable, for any period comprised in the disqualification period, as if the amount payable were reduced in such manner as may be prescribed.

• (5) For the purposes of this section the disqualification period, in an offender's case, means the relevant period beginning with a prescribed date falling after the date of the conviction in the current set of proceedings.

• (6) For the purposes of subsection (5) the relevant period is—

• (a) in a case where, within the period of five years ending on the date on which the earlier disqualifying event occurred, a previous disqualifying event occurred in relation to the offender, the period of three years;

• (b) in any other case, 26 weeks.

• (7) In this section and section 36D—

• “appropriate penalty provision” has the meaning given in section 36A(2)(a);

• “benefit offence“ means any of the following offences committed on or after the day specified by order made by the Treasury—an offence in connection with a claim for a disqualifying benefit;an offence in connection with the receipt or payment of any amount by way of such a benefit;an offence committed for the purpose of facilitating the commission (whether or not by the same person) of a benefit offence;an offence consisting in an attempt or conspiracy to commit a benefit offence;

• “disqualifying benefit” has the meaning given in section 6A(1) of the Social Security Fraud Act 2001;

• “disqualifying event“ has the meaning given in section 36A(10);

• “relevant offence” has the meaning given in section 6B of the Social Security Fraud Act 2001.

• (8) Where a person is convicted of more than one benefit offence in the same set of proceedings, there is to be only one disqualifying event in respect of that set of proceedings for the purposes of this section and—

• (a) subsection (1)(b) is satisfied if any of the convictions take place in the five year period there;

• (b) the event is taken into account for the purposes of subsection (1)(d) if any of the convictions have been taken into account as mentioned there;

• (c) in the case of the earlier disqualifying event mentioned in subsection (6)(a), the reference there to the date on which the earlier disqualifying event occurred is a reference to the date on which any of the convictions take place;

• (d) in the case of the previous disqualifying event mentioned in subsection (6)(a), that provision is satisfied if any of the convictions take place in the five year period mentioned there.

• (9) The Treasury may by order amend subsection (6) to substitute different periods for those for the time being specified there.

• (10) An order under subsection (9) may provide for different periods to apply according to the type of earlier disqualifying event or events occurring in any case.

• (11) This section has effect subject to section 36D.

36D

• (1) Where—

• (a) the conviction of any person of any offence is taken into account for the purposes of the application of section 36C in relation to that person, and

• (b) that conviction is subsequently quashed,

all such payments and other adjustments shall be made as would be necessary if no restriction had been imposed by or under section 36C that could not have been imposed if the conviction had not taken place.

• (2) Subsection (3) applies where, after the agreement of any person (“P”) to pay a penalty under the appropriate penalty provision is taken into account for the purposes of the application of section 36C in relation to that person—

• (a) P's agreement to pay the penalty is withdrawn under subsection (5) of the appropriate penalty provision,

• (b) it is decided on an appeal or in accordance with regulations under the Social Security Act 1998 or the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10)) that any overpayment made to which the agreement relates is not recoverable or due, or

• (c) the amount of any over payment to which the penalty relates is revised on an appeal or in accordance with regulations under the Social Security Act 1998 or the Social Security (Northern Ireland) Order 1998 and there is no new agreement by P to pay a penalty under the appropriate penalty provision in relation to the revised overpayment.

• (3) In those circumstances, all such payments and other adjustments shall be made as would be necessary if no restriction had been imposed by or under section 36C that could not have been imposed if P had not agreed to pay the penalty.

• (4) For the purposes of section 36C—

• (a) the date of a person's conviction in any proceedings of a benefit offence shall be taken to be the date on which the person was found guilty of that offence in those proceedings (whenever the person was sentenced) or in the case mentioned in paragraph (b)(ii) the date of the order for absolute discharge, and

• (b) references to a conviction include references to—

• (i) a conviction in relation to which the court makes an order for absolute or conditional discharge,

• (ii) an order for absolute discharge made by a court of summary jurisdiction in Scotland under section 246(3) of the Criminal Procedure (Scotland) Act 1995 without proceeding to a conviction, and

• (iii) a conviction in Northern Ireland.

• (5) In section 36C references to any previous application of that section—

• (a) include references to any previous application of a provision having an effect in Northern Ireland corresponding to provision made by that section, but

• (b) do not include references to any previous application of that section the effect of which was to impose a restriction for a period comprised in the same disqualification period.

Recovery of overpayments

Liability of officers for sums paid to employers

Transport Act 1982 (c. 49)

Magistrates’ Courts Act 1980 (c. 43)

Education Reform (Northern Ireland) Order 1989 (S.I. 1989/2406 (N.I. 20))

Child Support Act 1991 (c. 48)

Consequential amendments

Recovery of overpayments

Underpayments

39A

• (1) The Commissioners for Her Majesty’s Revenue and Customs may treat a late appeal under section 38 as made in time where the conditions specified in subsections (2) to (6) are satisfied, except that the Commissioners may not do so in the case of an appeal made more than one year after the expiration of the time (original or extended) for appealing.

• (2) An appeal may be treated as made in time if the Commissioners are satisfied that it is in the interests of justice to do so.

• (3) For the purposes of subsection (2) it is not in the interests of justice to treat an appeal as made in time unless—

• (a) the special circumstances specified in subsection (4) are relevant; or

• (b) some other special circumstances exist which are wholly exceptional and relevant,

and as a result of those special circumstances it was not practicable for the appeal to be made in time.

• (4) The special circumstances mentioned in subsection (3)(a) are—

• (a) the appellant or a partner or dependant of the appellant has died or suffered serious illness;

• (b) the appellant is not resident in the United Kingdom; or

• (c) normal postal services were disrupted.

• (5) In determining whether it is in the interests of justice to treat an appeal as made in time, regard shall be had to the principle that the greater the amount of time that has elapsed between the expiration of the time for appealing and the submission of the notice of appeal, the more compelling should be the special circumstances.

• (6) In determining whether it is in the interests of justice to treat an appeal as made in time, no account shall be taken of the following—

• (a) that the appellant or any other person acting for the appellant was unaware of or misunderstood the law applicable to the appellant’s case (including ignorance or misunderstanding of any time limit); or

• (b) that the Upper Tribunal or a court has taken a different view of the law from that previously understood and applied.

• (7) If in accordance with the preceding provisions of this section the Commissioners for Her Majesty’s Revenue and Customs treat a late appeal under section 38 as made in time, it is to be treated as having been brought within any applicable time limit.

Penalty proceedings before tribunal

21A

• (1) The Commissioners for Her Majesty’s Revenue and Customs must review any decision within section 38(1) if they receive a written application to do so that identifies the applicant and decision in question, and—

• (a) that application is received within 30 days of the date of the notification of the original decision or of the date the original decision was made if not notified because of section 23(3), or

• (b) it is received within such longer period as may be allowed under section 21B.

• (2) The Commissioners must carry out the review as soon as is reasonably practicable.

• (3) When the review has been carried out, the Commissioners must give the applicant notice of their conclusion containing sufficient information to enable the applicant to know—

• (a) the conclusion on the review,

• (b) if the conclusion is that the decision is varied, details of the variation, and

• (c) the reasons for the conclusion.

• (4) The conclusion on the review must be one of the following—

• (a) that the decision is upheld;

• (b) that the decision is varied;

• (c) that the decision is cancelled.

• (5) Where—

• (a) the Commissioners notify the applicant of further information or evidence that they may need for carrying out the review, and

• (b) the information or evidence is not provided to them by the date specified in the notice,

the review may proceed without that information or evidence.

21B

• (1) The Commissioners for Her Majesty’s Revenue and Customs may in a particular case extend the time limit specified in section 21A(1)(a) for making an application for a review if all of the following conditions are met.

• (2) The first condition is that the person seeking a review has applied to the Commissioners for an extension of time.

• (3) The second condition is that the application for the extension—

• (a) explains why the extension is sought, and

• (b) is made within 13 months of the notification of the original decision or of the date the original decision was made if not notified because of section 23(3) .

• (4) The third condition is that the Commissioners are satisfied that due to special circumstances it was not practicable for the application for a review to have been made within the time limit specified in section 21A(1)(a).

• (5) The fourth condition is that the Commissioners are satisfied that it is reasonable in all the circumstances to grant the extension.

• (6) In determining whether it is reasonable to grant an extension, the Commissioners must have regard to the principle that the greater the amount of time that has elapsed between the end of the time limit specified in section 21A(1)(a) and the date of the application, the more compelling should be the special circumstances on which the application is based.

• (7) An application to extend the time limit specified in section 21A(1)(a) which has been refused may not be renewed.

Incorrect statements etc.

Functions transferred to Treasury

Right not to be unfairly dismissed: Northern Ireland

Determination of penalties by Board

Attachment of Earnings Act 1971 (c. 32)

Child Support (Northern Ireland) Order 1991 (S.I. 1991/2628 (N.I. 23))

Social Security Contributions and Benefits Act 1992 (c. 4)

Unauthorised disclosure of information

Consequential amendments

Legal Aid (Scotland) Act 1986 (c. 47)

Education Reform (Northern Ireland) Order 1989 (S.I. 1989/2406 (N.I. 20))

Social Security Contributions and Benefits (Northern Ireland) Act 1992 (c. 7)

Immigration and Asylum Act 1999 (c. 33)

Unauthorised disclosure of information

Consequential amendments

Unauthorised disclosure of information

Consequential amendments

21C

• (1) The Commissioners for Her Majesty’s Revenue and Customs must review a relevant decision if they are notified (whether in writing or otherwise) within the period mentioned in subsection (3)—

• (a) of the identity of the person seeking a review;

• (b) of the decision in question; and

• (c) that the condition in subsection (2) is met.

• (2) The condition is that it has been determined that the person is entitled, whether in respect of themselves or a child for whom they are responsible, to a relevant disability benefit in respect of a tax year to which the relevant decision related.

• (3) The period is the period of one month beginning with the day on which the person’s claim for the benefit is determined in that person’s favour.

• (4) The sole purpose of a review under this section is to consider whether, as a result of the condition in subsection (2) being met, the relevant decision should—

• (a) be upheld;

• (b) be varied;

• (c) be cancelled.

• (5) The Commissioners must carry out the review as soon as is reasonably practicable.

• (6) When the review has been carried out, the Commissioners must give the person notice of the conclusion containing sufficient information to enable that person to know—

• (a) the conclusion on the review;

• (b) if the conclusion is that the relevant decision is varied, details of the variation, and

• (c) the reasons for the conclusion.

• (7) Where—

• (a) the Commissioners notify the person of further information or evidence that they may need for carrying out the review, and

• (b) that information or evidence is not provided to them by the date specified in the notice,

the review may proceed without that information or evidence.

• (8) In this section—

• “relevant decision” means a decision within section 38(1) or any variation of such a decision resulting from an appeal brought against it;

• “relevant disability benefit”, in relation to any part of the United Kingdom, means—armed forces independence payment;attendance allowance;disability assistance;disability living allowance;employment and support allowance;housing benefit, where a pensioner or a disability premium is included;incapacity benefit (whether short term or long term);income support where a pensioner or a disability premium is included;jobseeker’s allowance where a pensioner or a disability premium is included;limited capability for work credit;a mobility supplement or a constant attendance allowance where the supplement or benefit is paid in conjunction with a war pension or industrial injuries disablement benefit;personal independence payment;severe disablement allowance;statutory sick pay.