appeal on child benefit issue

[sarah c]

We are New zealanders here in the UK for the past 5 years on a work permit. For the past 2 years we have been receiving the child benefit after first talking to inland revenue and applying. Our caseworker has refused our ILR on these grounds. We have hired a lawyer and sent in an appeal as we understand from both inland revenue and the Home office that we are entitled to receive this benefit due to a reciprical agreement between NZ and the UK.
So why were we refused and why are we now going to the tribunal court?
Apart from cleaning us our financially the stress is unbearable. From what I can see the caseworker has made a mistake and we are paying the price for it.

[John]

Clear proof of incompetence at UKBA. Of course you are entitled to claim Child Benefit.

Please confirm that you did not also claim Tax Credits.

[sarah c]

No John we didn't claim tax credits just the child benefit. I can't figure out why the caseworker didn't just overturn his decision rather than take us all the way to the tribunal.
sorry spelt reciprocal wrong in my first email.

[John]

I don't understand that either. The issue is extremely clear cut, and if this is the only issue, you are bound to win the appeal.

[sarah c]

Thanks John it was the only issue stated on our refusal letter- receiving the child benefit and therefore could not financially support ourselves.

We are hopeful but extremely annoyed at this rather broken system.
Thanks again your comments are reassuring.

[John]

The stupidity of this situation is confirmed by the Home Office's own booklet ..... Public Funds .... where on page 4 of 7 it states :-

If you are from Barbados, Canada, Israel, Mauritius, New Zealand, Croatia, Bosnia-Herzegovina, Serbia and Montenegro or the former Yugoslav Republic of Macedonia, you may be eligible for the following benefits:

• Child benefit
• A social fund payment
• Attendance allowance
• Severe disablement allowance
• Carer’s allowance
• Disability living allowance

Use of the words "may be eligible" need not concern us. Obviously there are other conditions applicable, especially for Child Benefit, that you have a relevant child!

[sarah c]

Yip can confirm 2 relevant children!
When you make a mistake you try hard to rectify it as soon as possible but from what I understand the caseworkers are not responsible for their mistakes and although we can appeal to their better nature they are not obliged to do anything but push us through the system. With a massive backlog and cost in the court process you would think the priority would be to avoid this at all costs. What a waste of time and money for us and the taxpayer.

[sama]

Hi,

I am on ILR visa since 2005 and my wife just about to complete 2 years on Spouse visa (PS: No recourse to public funds) and apply for ILR. Couple of months ago, she claimed and received for 'Health in Pregnancy Grant' without knowing the fact that 'Health in Pregnancy Grant' falls under public funds.

Before applying for ILR I spoke to UKBA and they said this 'Grant' might effect her ILR.

This is really strange, I dont understand how Dept of Pension and Works (DPW) processed her claim sucessfully without know the fact that she is not entitled.

I have got in touch with DPW regarding this myself and offered them to return the 'Grant' if she is not entitled.

Please advice is there anything else I should be doing.

ta
Sama

[John]

This is really strange, I dont understand how Dept of Pension and Works (DPW) processed her claim sucessfully without know the fact that she is not entitled.

But she is entitled! Yet more proof that the so-called helpline at UKBA is often not very helpful!

[sama]

If she is entitled why is UKBA bother to include 'Health in Pregnancy Grant' in benefits section of SET (M) application form?

Here is the twist, I just spoke to HiPG helpline couple of times (two different advisors).

- one of them says if Husband is on ILR, wife might be eligble for the grant
- the other one says, if in the HiPG application form column 10 (are you subject to immigration control) if you answered 'yes' then you wont be paid, if you answered 'no' then you are paid.

I asked do you guys ever cross verify with UKBA/HO about the visa status before paying, they said no. Looks like otherway round does happens (ie., UKBA/HO contacts HMRC/DPW).

So I asked HiPG advisor that I want to refund the amount in any case and asap to get out this mess, they say I will have to wait untill DPW/HiPG head office contacts us with refund details (may be they will me to court!)

What a mess!

Will keep you posted with progress.

ta
Sama

[John]

If she is entitled why is UKBA bother to include 'Health in Pregnancy Grant' in benefits section of SET (M) application form?

In my opinion UKBA are being very naughty, including HiPG in the Public Funds section of the form SET(M), and the other applying-for-ILR forms. Why? Because they still have not got round to adding HiPG to the definition of Public Funds, as in para 6 of the Immigration Rules.

So I asked HiPG advisor that I want to refund the amount in any case and asap to get out this mess

Why on earth do you want to repay the money. Again, there is an entitlement!

The mess? Only in the standard of staff training on the various helplines you are phoning.

[sama]

well, if i tick the HiPG column in SET(M) then am sure my wife's ILR application will atleast be delayed or may be rejected.

Ticking the HiPG column in the ILR application form is the only thorn, if I can get rid of it by returning that amount/HiPG, I know my ILR application would be straight forward.

I do agree helpline staff are not trained adquately or relavent laws/documents are not updated correctly and consistently. At the end of the day its we who are affected.

I think Its not worthing going through all these mess for sake of 190 quid.

ta
Sama

[sama]

John,

I found something that might interest you.

http://www.ukba.homeoffice.gov.uk/while ... blicfunds/

This link contains definition and list of 'public funds'. HiPG is also comes under 'public funds'.

Whats your view on this?

ta
Sama

[John]

But Sama, that only goes to prove the incompetence of UKBA on this issue. So UKBA have written that on their website, but that does not actually prove that HiPG is within the definition of Public Funds.

The law on this matter? Click here. Then scroll down to para 6, which you will see is a list of definitions, then read the Public Funds definition. Is HiPG there? Indeed is ESA there? No!

Sheer incompetence by UKBA. Simply they have not added those two newish benefits to the Public Funds definition. And they have a history of this sort of thing. They did not add Tax Credits to the definition until nearly two years after that benefit started to be paid.

[sama]

ok, i found a discrepancy in the same web page. On the web page on to the right hand side you will see a PDF (under the name 'No Recourse to public funds' - What does it mean?. Download that file and you will notice that the HiPG is missing from list!

I cant believe these guys!

ta
S

[John]

Sama, the leaflet just shows how complicated this whole Public Funds is. And thank goodness, the incompetence of UKBA does not extend to revising that leaflet prematurely.

No doubt UKBA will eventually get round to changing the Public Funds definition, by adding HiPG and ESA to the definition is para 6 of the Immigration Rules, and then they might update the leaflet you refer to.

[sama]

john,

Given the situation, how do I go about applying for my wife's ILR, i need to apply before 5th May. Options are

- First sort out HiPG with HMRC/DWP (they may advice to return the grant or keep it with me) and then make ILR application. This is applicable, if HMRC/DWP gets back within 5th May.

- Wait until end of this month, then apply ILR with a letter explaining the situation along with the printout of leaflet.

- Any other option you can think of.

ta
S

[John]

Any other option you can think of.

Just apply, and stop worrying!

[sama]

John,

I spoke to UKBA Helpline and they adviced to apply before current visa expires, if HMRC/DWP gets back with a clarification then attach the clarification with application else write a covering letter explaining the situation and it will be at the discretion of Case Worker.

Sorry to ask you again, do I tick the 'HiPG' column in SET (M) form or not?

Sama.

[John]

If I were you I would write across HiPG ...... "Not Public Funds".

[sama]

John,

As I told earlier, I have raised a query with HMRC/DWP about my wife's HiPG entitlement.

HMRC/DWP got back to me saying that she is not entitled and had to return the fund. I am waiting for the letter to delivered from HMRC/DWP.

So as soon as I receive the repayment details, I shall return the fund.

My question is, since I have return the fund to HMRC/DWP should I say 'no' in the column 7.1 'Claiming Benefits'

or

should I say 'Yes' and write an letter detailing all that happened.

thanks
Sama

[John]

HMRC/DWP got back to me saying that she is not entitled and had to return the fund. I am waiting for the letter to delivered from HMRC/DWP.

The polite version of my thoughts about that it is that total garbage! Your wife is entitled to that payment and my strong recommendation is that you don't repay it.

I am basing my comments upon what you posted earlier :-

I am on ILR visa since 2005

-: which gives your wife the complete right to claim the HiPG.

When you get that letter from them, please post again saying that. I shall then draft a wording for you to use replying to them, pointing out the technical detail of why a HiPG claim is totally OK.

On the form SET(M), suggest you right across HiPG, "Not Public Funds".

[sama]

John,

I do agree with your point. Techincally, she might be entitled (since am on ILR).

On the HiPG form, HMRC/DWP asks if the mother-to-be 'are you subject to immigration control', if we say, yes, they simply decline the HiPG claim, they dont check partner's visa status or anything.

if we say 'no', they just pay the entitlement and they dont even check with UKBA/HO about the visa status and probably put a record aganist her NI number.

On top of this, HMRC no way knows about my Visa status as there is no mention of any of my details on the HiPG application form.

I can see that law/rules are not consistently updated across the board within and across the concerned govt depts which is causing confusion and fustration to many like me.

[sama]

John,

I have some good news.

Just today I have received my wife's passport with ILR stamp!

I dont know if returning HiPG to HMRC has helped in getting ILR, am suprised with timelines actually,

Application posted on: 4th May, 2010
Qualifying period starts: 14th May, 2010.
Passport with ILR received: 24th May, 2010.

Since my wife delayed her entry to UK by 5 weeks, the 2 year probation minus 28 days ends (on 14th May).

Thanks for all your support and advice.

thanks
Sama

[nvrt]

We are New zealanders here in the UK for the past 5 years on a work permit. For the past 2 years we have been receiving the child benefit after first talking to inland revenue and applying. Our caseworker has refused our ILR on these grounds. We have hired a lawyer and sent in an appeal as we understand from both inland revenue and the Home office that we are entitled to receive this benefit due to a reciprical agreement between NZ and the UK.
So why were we refused and why are we now going to the tribunal court?
Apart from cleaning us our financially the stress is unbearable. From what I can see the caseworker has made a mistake and we are paying the price for it.

What was the outcome of the tribunal court? Please could you tell us how the story ended? We are from Israel, receiving the child benefit for more than 4 years, all the HSMP, Tier1 applications were successful during this time. And we are going to apply for ILR very soon.