HMRC -

[samsmoot]

Hi all, long time no see - hope you are well.


A County Court Claim against Her Majesty's Revenue and Customs is going to be sent, but who should the Defendant be named as? Would it be HMRC or the Treasury Secretary or what?

Would be grateful if anyone can advise.


Cheers.

[MrsGem]

Re: HMRC -

I'm fairly sure you cannot sue the HMRC.

The crown has to be seen as undivided so one part of the crown (the courts) cannot order another part (HMRC) to do something....

[Amethyst]

Re: HMRC -

Court says taxpayers can sue Revenue for errors - Times Online

Court says taxpayers can sue Revenue for errors

Landmark ruling that the taxman owes the victims of serious errors a duty of care could cost the Government millions

Michael Herman

div#related-article-links p a, div#related-article-links p a:visited { color: rgb(0, 102, 204); } Businesses or individuals who have lost out because of serious errors at Revenue and Customs will be able to sue for damages following a landmark legal victory yesterday.
The unanimous decision from the Court of Appeal is expected to prompt a barrage of claims from disgruntled taxpayers after judges effectively revoked the blanket immunity from litigation that the Revenue had previously enjoyed.

[samsmoot]

Re: HMRC -

Thanks you two - it's not a money claim as such, it's seeking an order to pay what has already been awarded. It's to do with the Government wanting everyone to have a bank/PO Card account to receive their benefits, and the stopping of payments (without formal or sufficent notice in particular) on account of non-compliance.

[Amethyst]

Re: HMRC -

Oh realllllllllllly, brilliant. I hate all this financial inclusion bull. I didnt know they were actually sanctioning people who have neither bank account nor PO account.

What are your reasons for not having the PO account ? (I'm interested as that's what I have for my benefits) What method are you requesting payment by ?

Is it tax credits ? (HMRC)

[samsmoot]

Re: HMRC -

Not me Amethyst - a friend.

Yes, Child Tax credits are the issue, and yes, they are stopping payments for some claimants. I know of two in the immediate vicinity.

Main reasons for believing they don't have the right to not pay CTC in this instance:

1. They phoned my friend to tell her CTCs would stop because she had no account - but they still won't put it in writing.

2. The letter they sent previously did not categorically say that my friend had to open an account - the exact words used strongly suggested that they wanted this, but they fell short of saying it explicitly (that unless an account was opened CTCs would stop).

3. No quoting of any law, rule or regulation.

There is one very good reason not to have a PO account - doesn't bother me but you should know: your data is not protected - you sign away any rights to data protection under UK law, as the PO account is administered by an American bank. Used to be Citibank, now it's JP Morgan, I believe. You can have a look at your terms and conditions booklet, or maybe you can remember signing the page in your agreement? There was, when it was Citibank, a waiver page you had to sign - sure JP Morgan isn't any different.

[Amethyst]

Re: HMRC -

What method does she want the tax credits paid by ?

Will see if I can dig out my T&Cs on the POCA.

[samsmoot]

Re: HMRC -

Not via bank or PO Card account, that's for sure. She had many problems accessing her money years ago when receiving benefit payment through a bank - basically sometimes not being able to get her money by the due date. She was happy to have a bank account when she was working.

She does not mind any method of payment which doesn't involve her having to choose the least worst of a bad bunch to hold on to her money for her. If an account was lawfully forced on her she would have no choice but to concede. As it is it looks more like blackmail or holding her money to ransom IMO. The thing is, she has known for many years that Cash Cheque (previously Giro) payments would stop for some claimants, but also found information that an alternative was in the pipeline to replace this payment method - the details were scanty (possibly some kind of swipe card) but the will (at the time) was obviously there. Heard nothing since (this related to the DWP if I remember rightly). She has been told a hundred times that she must get an account "by next month" or "immediately" and that without one she won't get paid (mainly by Jobcentre Plus). Despite these threats she continued to be payed - right up until last month.

HMRC have, I have read, discretion to continue paying indefinitely those who find it impossible to operate an account by Cash Cheque. My friend cannot retain a PIN number, so should fall into this category.

I am optimistic about successfully getting an order, but I'm like that - I see the words that HMRC have written and they compel nothing from my friend, don't carry legal weight and they ignore the individual circumstances (IMO). I think the Tax Credit Award Notice is the clincher - I don't see how this can be lawfully varied other than by a new TCAN - but I'm sometimes wrong so there will be a few lines of attack.

Thanks for your interest, Amethyst - there's not much talk on this anywhere so it's good to get it out there.

Cheers.

[Amethyst]

Re: HMRC -

I was under the impression that the 'swipe' card was to be the POCA as that is really the only alternative to the bank account. It does use a PIN though whether at the post office counter, or now can be used via post office cash machines. Theres nothing on the POCA other than benefits in, cash out. You can't pay money in or have DDs so there is no room for error (other than the DWP cocking up the day you get your payments) but I find it the simplest way. I do now have a bank as well solely for child maintenance in, rent out (by manual bill payment NOT SO or DD).

I think your friend has to show evidence of disability (being unable to retain PIN etc) to keep payments by cheque - which seems to be backed up by legislation (posted further down this post) Has that been looked at ?

I did a thread which included the costs to the DWP of sending payments out by the different methods when they were looking to stop the POCA, will find a link for you as there might be some clue as to the legislation. Sorry for mass of links, some reading for you x Am going back through myself see if I can pick out things which may be of use for your friend (even if its a bit more info on the POCA)

This shows cost 1p for DD, to £1.46 for giro - http://www.rightsnet.org.uk/pdfs/NAW...show_03.05.pps

First Right of Appropriation...offsetting debt against benefits RBS - Legal Beagles Consumer Forum
Social fund Crisis Loans to charge 27% interest - Legal Beagles Consumer Forum
No bank account for '1m adults' - Legal Beagles Consumer Forum
Post Office Card Accounts allow withdrawals from PO ATMs from March 2010 - Legal Beagles Consumer Forum
Legal Beagles Consumer Forum
Benefits cheques to stop by 2010 - Legal Beagles Consumer Forum


Just to get it straight, the HMRC have stopped paying your friend by girocheque and refuse to pay her any way other than bank or POCA >

All the advice from the gov and cab etc says cheque can continue on a discretionary basis - eg.

For tax credits, if you do not give HMRC details of an account, you may lose your entitlement. You should get in touch with HMRC and explain. In exceptional circumstances, they can pay you by cheque. If you lose your entitlement to tax credits because you do not have an account, or if you have any difficulty getting paid other benefits because you do not have an account, you should contact an experienced adviser, for example, at a Citizens Advice Bureau.

You haven't provided bank account details when asked

If you've been getting your tax credits paid by cash cheque, your payments may stop if you haven't given the Tax Credit Office your bank, building society, or Post Office® card account details. This could happen eight weeks after the date the Tax Credit Office asked you for this information.
If you don't already have an account, you must open one and provide the details to the Tax Credit Office.

TCTM08103 - Payments of Tax Credits: Payments other than to a bank, building society or other account

Circumstances in which the Commissioners will pay other than to an account

Tax Credits Act 2002 s24

Tax Credits (Payment by the Commissioners) Regulations 2002, Regs 13 & 14

Where it does not appear to the Commissioners for HM Revenue & Customs to be appropriate to pay tax credits to an account notified to them by the person to whom the tax credits are to be paid, the Commissioners may pay those tax credits in such other manner as appears to them to be appropriate.
If no account has been notified by the claimant(s) to the Commissioners for HM Revenue & Customs, the Commissioners may pay the tax credits in such manner as appears to them to be appropriate.
Where the claimant(s) have failed to notify an account to the Commissioners for HM Revenue & Customs by the date specified payments will be postponed. Cashcheques will normally be paid for 8 weeks beginning with the date the Commissioners give notice to the claimant(s) of the requirement for them to notify an account,
Where, within the period prior to postponement, the claimant(s)

• request from the Commissioners the authority to open an account, and
• provide sufficient information from which the Commissioners can give that authority

Cashcheque payments can be extended for 3 weeks beginning with the date the Commissioners give that authority, or
In a case where the claimant has a reasonable excuse for

• not being able to take all necessary steps to obtain an account within the relevant time as described above, or
• for not being able to notify the Commissioners for HM Revenue & Customs of an account within the relevant time as described above

Cashcheque payments can be extended until the date by which the account can reasonably be expected to be notified to the Commissioners.
Where there are exceptional circumstances likely to mean the claimant(s) will be unable to obtain an account during the period of the award, the Commissioners will continue payment by cashcheque throughout the period of the award
Top of page
Where the claimant(s) fail to notify an account to the Commissioners for HM Revenue & Customs

Following postponement of payments if the claimant has still not notified an account by the relevant time (see below for a definition) they shall cease to be entitled to tax credits for the remainder of the period of the award beginning on the day from which the Commissioners decided to postpone payment.
Top of page
The relevant time

The relevant time is the earlier of:

• three months after the time when the Commissioners decided to postpone payments of tax credits, or
• immediately after the end of the relevant tax year

Top of page
Where a claimant notifies an account to the Commissioners for HM Revenue and Customs after payment is postponed

Where the claimant(s) notifies an account to the Commissioners for HM Revenue & Customs whilst payments are postponed, payments of tax credits may be resumed. They do not need to make a new claim; it is sufficient that they notify an account.
Top of page
Where a claimant notifies an account to the Commissioners for HM Revenue and Customs after the relevant time and entitlement has ceased

Tax Credits Act 2002 s3

Where the claimant(s) notifies an account to the Commissioners for HM Revenue & Customs after entitlement has been ceased, a new claim must be made.
Exceptional circumstances must be determined on a case by case basis on the merits of the individual case, but examples may include
Unable to obtain an account during the period of the award

• Claimant has been refused a Post Officecard account
• Claimant is severely disabled, unable to operate an account and has no appointee to operate an account on their behalf
• Claimant is of no fixed abode

Unable to obtain an account during the relevant period

• Claimant has been ill or abroad or passed from one account to another

Claimant has a Personal Invitation Document for a Post Office card account but has left it too late to set up the account within the relevant period
Top of page
Frequency of payments made other than to an account

Tax Credits Act 2002 s24

Tax Credits (Payment by the Commissioners) Regulations 2002, Reg 9

Where the Commissioners for HM Revenue & Customs are making payments of tax credits by a method other that directly to an account notified to them by the claimant, they may make those payments at such frequency as appear to them to be appropriate.

Relevant legislation -

24 Payments
(1)
Where the Board have made an award of a tax credit, the amount of the tax credit awarded must be paid to the person to whom the award is made, subject to subsections (2) and (3).

(2)
Where an award of a tax credit is made to the members of a married couple or an unmarried couple, payments of the tax credit, or of any element of the tax credit, are to be made to whichever of them is prescribed.

(3)
Where an award of a tax credit is made on a claim which was made by one person on behalf of another, payments of the tax credit, or of any element of the tax credit, are to be made to whichever of those persons is prescribed.

(4)
Where an award of a tax credit has been made to a person or persons for the whole or part of a tax year, payments may, in prescribed circumstances, continue to be made for any period, after the tax year, within which he is or they are entitled to make a claim for the tax credit for the next tax year.

(5)
Payments made under subsection (4) are to be treated for the purposes of this section and the following provisions of this Part as if they were payments of the tax credit for the next tax year.

(6)
Subject to section 25, payments of a tax credit must be made by the Board.

(7)
Regulations may make provision about the time when and the manner in which a tax credit, or any element of a tax credit, is to be paid by the Board.

(8)
If the regulations make provision for payments of a tax credit, or any element of a tax credit, to be made by the Board by way of a credit to a bank account or other account notified to the Board, the regulations may provide that entitlement to the tax credit or element is dependent on an account having been notified to the Board in accordance with the regulations.

Tax Credits (Payment by the Commissioners) Regulations 2002, Regs 13 & 14]

[/b]Tax Credits (Payments by the Commissioners) Regulations 2002/2173

This version in force from: August 29, 2005 to present
(version 3 of 3)

13.— Manner of payment

(1) Subject to paragraph (2), the tax credit or element shall be paid by way of a credit to a bank account or other account notified to [the Commissioners]1 by the person to whom payment is to be made.

(2) Where [ it does not appear to [the Commissioners]1 to be appropriate ]2 for the tax credit or element to be paid by way of a credit to a bank account or other account notified to [the Commissioners]1 by the person to whom payment is to be made, the tax credit or element may be paid in such manner as appears to [the Commissioners]1 to be appropriate.

(3) Subject to regulation 14 , if no bank account or other account has been notified to [the Commissioners]1 , the tax credit or element shall be paid in such manner as appears to [the Commissioners]1 to be appropriate.

1. Words substituted by Tax Credit (Payment by Employers, etc.) (Amendment) Regulations 2005/2200 reg.7(4) (August 29, 2005)
2. Words substituted by Tax Credits (Claims and Notifications and Payments by the Board) (Amendment) Regulations 2003/723 reg.11 (April 6, 2003)

and 14

Tax Credits (Payments by the Commissioners) Regulations 2002/2173

This version in force from: April 6, 2010 to present
(version 4 of 4)

14.— Entitlement to tax credit or element dependent on a bank account or other account having been notified to [the Commissioners]1

[(1) Subject to paragraph (3), where—
(a) payment of a tax credit or element is postponed pursuant to the circumstances specified in regulation 11(2A), and

(b) before the relevant time determined in accordance with this regulation, no bank account or other account is notified to the Commissioners by the person to whom a tax credit or element would have been paid if payment of it had not been postponed,

that person shall cease to be entitled to the tax credit or element for the remainder of the period of the award beginning on the day from which the Commissioners decide to postpone payment.

]2
[...]3
(3) Where there are exceptional circumstances which are expected to result in a person not being able to obtain a bank account or other account throughout the period of award, paragraph (1) shall not have effect in relation to that person's entitlement to a tax credit or element for the period of award.

[...]3
[(4A) Subject to paragraphs (4C) and (4E), the relevant time is the earlier of—
(a) three months after the time when the Commissioners decide to postpone payment of a tax credit or element; or

(b) immediately after the end of the relevant tax year.


(4B) This paragraph applies where, before the time determined in accordance with paragraph (4A), the person entitled to payment of the tax credit or element—
(a) requests from the Commissioners authority to open an account for which such authority is required; and

(b) provides sufficient information from which the Commissioners can give that authority.


(4C) Subject to paragraph (4E), where paragraph (4B) applies, the relevant time is the later of—
(a) the time determined in accordance with paragraph (4A); and

(b) the expiry of the period of 3 weeks from the day on which the Commissioners give their authority following a request described in paragraph (4B)(a).


(4D) This paragraph applies where a person to whom a notice described in regulation 11(2A)(a) has been given has a reasonable excuse—
(a) for not being able to take all necessary steps to obtain a bank account or other account before a time determined in accordance with paragraphs (4A) or (4C), or

(b) for not being able to notify to the Commissioners the bank account or other account before a time determined in accordance with paragraphs (4A) or (4C).


(4E) Where paragraph (4D) applies, the relevant time is the later of—
(a) the time determined in accordance with paragraph (4A);

(b) where paragraph (4B) applies, the time determined in accordance with paragraph (4C); and

(c) the date by which the account can reasonably be expected to be notified to the Commissioners.


]4
(5) “Writing” includes writing produced by electronic communications that are approved by [the Commissioners]1.

1. Words substituted by Tax Credit (Payment by Employers, etc.) (Amendment) Regulations 2005/2200 reg.7(4) (August 29, 2005)
2. Substituted by Tax Credits (Miscellaneous Amendments) Regulations 2010/751 reg.10(6) (April 6, 2010)
3. Revoked by Tax Credits (Miscellaneous Amendments) Regulations 2010/751 reg.10(7) (April 6, 2010)
4. Added by Tax Credits (Miscellaneous Amendments) Regulations 2010/751 reg.10(8) (April 6, 2010)

and 11 (2a)

(2A) The circumstances specified in this paragraph are where—
(a) a notice in writing has been given by the Commissioners to a person to notify a bank account or other account to which the Commissioners may make payment of a tax credit or element to which the person is entitled;

(b) a period of eight weeks has elapsed since the day on which the Commissioners gave their notice; and

(c) no bank account or other account has been notified to the Commissioners pursuant to their notice.


]5(3) The circumstances specified in this paragraph are where confirmation is pending of—
(a) the details of a bank account or other account by way of a credit to which payment is to be made; or

(b) the address of the person to whom payment is to be made,

where it appears to [the Commissioners]1 that such details or address as were previously notified to them are incorrect.

[(3A) The circumstances specified in this paragraph are where—
(a) a notice under section 16(3) of the Tax Credits Act 2002 has been issued to the person, or either or both of the persons, to whom the tax credit or element was awarded, and

(b) such person or persons have not provided the information or evidence requested in that notice by the date specified in such notice.

I wonder, have you been in touch with your friends local MP ?

J P Morgan are Data Controller for POCA - and are registered here so are governed under our DPA regs

Data Controller
Registration Number: Z5962253
JP Morgan Europe
125 LONDON WALL
LONDON
EC2Y 5AJ

[samsmoot]

Re: HMRC -

Wow! Thanks for all that Amethyst - a lot to look into there. I have already started writing out the claim, but in view of what I have quickly glimpsed I think another letter emphasising my friend's inability to remember PIN numbers should first be sent - she did tell them on the phone about this so repeating this should, from what I can gather, be enough for them.

The claim intended to make a lot of the fact that she wasn't actually notified that she must get a bank account - on a strict interpretation of their most recent letter anyway, but I'll have to see if other letters say differently.

Yes, they stopped paying by Giro and will not pay her by any other way. Their last letter, at first reading, appears to say she must have an account, but a strict reading of it shows otherwise - they do not explicitly state that she would not be paid unless she opened an account. Although I don't know if this will actually make any difference.

I note what you say about JP Morgan, but Citibank, when they controlled POCAs, could do what they liked with your data - there was a waiver page in the agreement/contract. I will have a look into this if I can - having internet trouble at mo' so please don't think me ignorant if I'm absent for a bit.

Thanks again for all the info - good use will be made of it, I'm sure.

[Amethyst]

Re: HMRC -

No worries Its good to get into the nitty grittys of issues like this which affect thousands of people.

I do think the DPA issue is a red herring.

If you would have time I'd be interested to see the wording of some of these letters.

[samsmoot]

Re: HMRC -

Here is a copy of most of the letter sent to HMRC, which includes the relevant quotes from their last letter:

'I received a phone call from one of your agents, Ian, on Tuesday 23 November. He told me that I would not be sent any more CTC payments because I will not open a bank/building society account or Post Office card account to have my CTC paid into. He referred to my letter of 9 November, which was my response to K. Luvate's letter dated 3 November. This letter of 3 November makes a number of points, none of which state that I will not continue to receive CTC payments unless I open one of the above accounts. I have still not received the letter that Ian said would be sent stating that my CTCs were stopped due to me not opening one of these accounts, and so I am still firmly convinced that you have no legal basis to have stopped my CTC payments when you did (as I have not received recent due payments I must assume that you have chosen not to send them).
　
I will repeat to you the points raised in your letter of 3 November:
　
1. You say 'Tax credits should be paid into a: bank account; building society account; Post Office card account'.
You quote no reason why Tax credits 'should' be paid into one of these accounts and quote no law or regulation which says why they should. You simply saying that Tax credits 'should' be paid this way requires no action or response from me - I am not compelled by these words to do anything.
　
2. You say 'To continue receiving [my] money, [I] must tell [you] as soon as possible: details of the account that [I] want my tax credits to be paid into, please phone us on the number shown above to give us the account details'.
Once again, I am not compelled or required by these words to do anything: as I have told you on numerous occasions, I do not want want my tax credits to be paid into any account and therefore, and obviously, cannot supply the details you ask me to.
　
3. You say 'Your cashcheqe payments will stop on 17 November 2010'. I have been told many, many times over the course of many years that cashcheques were being stopped and that I would need to open up some kind of account. I have stated many, many times that unless the law had changed to require it I would not open an account in order to receive my benefit payments. Your repeating the same tired words to me had no more effect on my intentions than it has had for the last 10 years. I am aware that you are saying my cashcheques will stop, but that does not mean that I am no longer entitled to my money. The government, it appears, has chosen not to implement a system to replace cashcheques. A new system, the details of which I cannot at the moment identify, was intended to be put in place to replace cashcheques, and so I fully expected that system, or an alternative one, to be available to me. If the government has chosen not to implement any replacement method for paying my CTCs that is not my fault.
　
4. You say that 'if [I] don't already have an account, please arrange to open one and then phone us on the number above to give us the account details'.
You have asked me to do something which I have previously declined to do and I still decline to do. Simply asking me to do something is a request which I am free to ignore.
　
As is clear from my interpretation of your letter of 3 November I see nowhere where it says that my CTC payments would be stopped if I did not open an account.'

Having had a look at what you have posted above I can't say I understand it all, but it does look like discretion can be used if it's difficult to operate an account - but isn't that dependant on exercising that discretion? What if they decide not to? I really don't know what to advise, except if it's taken to court and the claim fails, my friend may lose all her Tax Credits that are due as she will be out of time (looks like they can stop TCs after 3 months if you don't notify an account).

I'm thinking a letter to HMRC stating my friend's inability to remember her PIN would be the best option at this stage, and hope they accept this. But what if they don't? Is there recourse if they disagree? I don't see that a judge would be able to force something that is discretionary - or can he/she?

[samsmoot]

Re: HMRC -

My friend finally decided to open a PO account. After looking at the new regulations it was pretty clear that a challenge would be difficult, if not futile.

Thanks for the all the advice., Amethyst.

[Amethyst]

Re: HMRC -

No worries. It is frustrating. Cheques are being phased out completely and going to paypoint cards next year (I think also citibank run paypoint....) I'll find the link for you.

I have no problems with the PO account at all, I can use a cash machine to withdraw my benefits now rather than queuing in the PO (okay the cash machine I can use is on the PO wall but it saves a few seconds and it's more private) - statements every quarter give a nice record too.

[Amethyst]

Re: HMRC -

Paypoint instead of girocheques ???????? - Legal Beagles Consumer Forum