Disputes

This section outlines the dispute process which is one of the ways in which a claimant can challenge an overpayment. This page is based on more detailed information in the LITRG ‘Challenging Overpayments’ Guide which is available for download in the ‘Challenging Overpayments’ section of our site.

To find out more about how to understand whether the claimant has an overpayment and how to identify the cause of an overpayment see our overpayment and underpayments section.

The dispute process
Suspension of recovery during a dispute
Appeals vs. Disputes
The previous reasonableness test
The responsibilities test
Time limit for disputes

Background
When does the time limit run from?
Overpayments from earlier years
Interim arrangements from April to October 2013
Claimants with old overpayment debts
What if a claimant misses the deadline?
What if HMRC refuse to admit a dispute?
Alternative ways to challenge the overpayment

Exceptional circumstances
Evidence
Second disputes and next steps

The dispute process

Most challenges against overpayments will be done using the dispute process. This process is used where there is in fact an overpayment but the claimant believes that they should not pay it back because of an error by HMRC.

The dispute process is not governed by statute. Under statute, HMRC may recover all overpayments howsoever caused. HMRC set out their policy on how they exercise this discretion in Code of Practice 26. The process in COP26 is referred to as the ‘dispute process’.

The dispute process is internal to HMRC. Disputes are decided by the Customer Service and Support Group (CSSG), part of the Tax Credit Office in Preston.

In September 2009, a specialist team was set up within CSSG to deal with disputes and complaints from certain intermediaries (primarily only for those who provide free help to claimants). As well as creating a dedicated team, a new process was implemented which means advisers should receive an acknowledgement letter with the contact details of the named caseworker dealing with the dispute or complaint. In February 2012, HMRC stopped issuing acknowledgement letters to advisers following a successful trial as they were dealing with disputes quickly. Disputes should be addressed to:

IDCT
CSSG
Tax Credit Office
Preston
PR1 4AT

Disputes can be lodged using form TC846 or by letter (generally preferred by advisers as it allows a full argument to be put forward).

Suspension of recovery during a dispute

For disputes received by HMRC prior to 15 July 2013, as soon as a claimant disputed an overpayment, whether on form TC846 or in some other written format, HMRC suspended recovery of the overpayment whilst they investigated the matter. Recovery did not recommence unless and until the dispute was resolved against the claimant and in HMRC’s favour. Thereafter, HMRC’s policy was that suspension could only be reactivated if the claimant submitted a new dispute with new evidence to HMRC which required further investigation.

HMRC changed their policy in relation to recovery suspension for disputes received from 15 July 2013. This represents a major change in policy. For disputes received after that date, there will no longer be any suspension of recovery when a dispute is lodged.

If the overpayment is being recovered from an ongoing tax credits award, that will continue whilst the dispute is considered. If the overpayment is being recovered directly via debt management and banking (DMB), they will continue recovery action whilst TCO consider the dispute.

We are not aware of any changes to the policy that if a dispute is successful, any payments made will be refunded to the claimant.

The new policy means it is crucial that claimants and their advisers engage with DMB if the debt is in direct recovery so that further action (ultimately distraint or county court) is avoided. Information about time to pay arrangements can be found in the dealing with debt section.

It is still worth speaking to DMB for direct recovery debts to request a suspension of recovery by DMB (rather than TCO). This can be requested under their official guidance where the claimant is in financial hardship or in receipt of certain means tested (see dealing with debt section for further details). Even if the claimant doesn’t fit this criteria it is still worth asking DMB for suspension if a dispute has been filed as even though it is not official DMB policy some officers are prepared to suspend when cases are in dispute or go to the Adjudicator.

Appeals vs. disputes

The distinction between appeals and disputes is one that even HMRC staff have difficulty with. There are some important differences between the two processes:

Examples of when an appeal and dispute may be appropriate -

Example of when an “appeal” is the right thing to do:

Daisha claims tax credits for her three children. Her eldest child finishes her GCSEs but decides to stay on at school to do her A levels. Daisha tells HMRC and continues to receive tax credits for three children. When HMRC work out Daisha’s final tax credits for the year, they only include two children. Because Daisha received money for three children, HMRC think that they have overpaid her. Daisha can appeal the decision and ask HMRC to change her award as she should have received tax credits for three children. If this is successful, the overpayment will disappear.

Example of when a “dispute” is the right thing to do:

Eric and his wife were paid tax credits for three children when they only have two. When Eric received his award notice, he phoned HMRC to tell them they had the number of children wrong. HMRC did not correct the mistake and kept on paying Eric too much tax credit. After the end of the year, Eric had received more tax credit than he should have and so has an overpayment. Eric can use the dispute process because he accepts that he has been paid too much, but doesn’t think he should have to pay it back because he told HMRC of the mistake as soon as he saw his award notice.

If a claimant sends an ‘appeal’ to HMRC that should be a dispute, it will generally be re-directed. Unfortunately when the opposite happens, a claimant sends a ‘dispute’ when in fact they want to appeal, the letter tends to be treated as a dispute. In such cases we recommend that advisers argue that HMRC should treat the original letter as an appeal. There is no requirement that appeals must state that they are an ‘appeal’ so long as they meet the other appeal requirements.

The previous ‘reasonableness’ test

Prior to 31 January 2008, claimants faced the much criticised ‘reasonableness test’. This test had long been criticised by representative bodies, and following a succession of reports in 2007 by the Adjudicator, The Parliamentary Ombudsman and Citizens Advice, HMRC decided to revise the test.

The following paragraphs contain information about the operation of the reasonableness test. Whilst the test is not applicable to new cases, HMRC have stated that the test will still be used where a claimant asks HMRC to review a previous dispute decision that was made under the old test. In practice, our experience is that all current disputes are being dealt with under the new test which is generally more generous to claimants. Officially, any disputes outstanding as of 31st January 2008 should have been dealt with under the new test.

COP26 (April 2007 version) stated:

‘For us to write off an overpayment you must be able to show that the overpayment happened because:

- we made a mistake, and

- it was reasonable for you to think your payments were right.’

Both tests had to be satisfied before HMRC would write off an overpayment.

Of the two tests described above – that HMRC must have made a mistake, and that it must be reasonable for the claimant to have thought their award was right – it was the second of the two, commonly known as ‘the reasonableness test’, that provoked the most controversy.

The responsibilities test

The old versions of COP26 were most noticeably silent on what claimants could expect from HMRC. Whilst HMRC internal guidance gave some indication of what claimants could expect, the reasonableness test centred around the claimant and put the emphasis on them to check HMRC’s work. There seemed little responsibility for HMRC and this led to large overpayments being recovered in situations where the claimant did not spot an error which HMRC had made.

In designing the new test, HMRC attempted to move away from the one-sided list of responsibilities, replacing a test which imposed all of the responsibility on the claimant to one which set out responsibilities for both parties.

The responsibilities for both the claimant and HMRC can be found on the HMRC website and in COP 26.

There are four possible outcomes to a dispute:

In this situation the overpayment will not be written off since, if both sides have met their responsibilities, the overpayment is likely to be a naturally occurring overpayment which is built into the system, or is caused because HMRC have 30 days to action a change.

In this situation the overpayment will not be written off because of the failure of the claimant to meet their responsibilities. This may be overridden if there are exceptional circumstances.

In this situation the overpayment will be written off because HMRC failed to meet their responsibilities.

In this situation the part of the overpayment attributable to HMRC’s failure will be written off, but the part attributable to claimant error will remain recoverable unless exceptional circumstances are present.

There is an extremely useful document within HMRC’s own guidance detailing the steps that advisers should follow in determining disputes under the new test.

Under point 4 in the summary table above, where both parties have failed in their responsibilities there will be a partial write off calculated by apportioning the part of the overpayment that is attributable to HMRC’s failure.

The guidance directs dispute staff to go on and consider four additional questions in this situation:

Did the claimant, for overpayments in 2008-2009 onwards, report any error on their award notice within one month of receiving it?

Did the claimant, for overpayments prior to 2008-2009, report any award notice error promptly?

Did HMRC delay in processing a change of circumstances for more than 30 days?

Did HMRC incorrectly process a change of circumstances?

In the first two cases, if the claimant informed HMRC within one month (or promptly for overpayments arising earlier than 2008-2009) the overpayment relating to the error on the award notice should be written off. If notification is made outside of these time limits, it would seem that the overpayment will only be written off from the date that HMRC were actually informed of the error.

In the last two cases, the part of the overpayment relating to HMRC’s error in not processing a change of circumstances within 30 days or processing a change incorrectly should be written off.

Any remaining overpayment would appear to be recoverable.

One other way of having an overpayment written off is to examine whether ‘notional offsetting’ applies if the case involves separating couples, couples coming together or one member of a couple dying or going abroad for longer than 8 or 12 weeks (depending on the circumstances). More information can be found in our Understanding Couples section.

Time limit for disputes

Background

Since the tax credits system began, most challenges of overpayments have been made through the dispute process. Prior to 6 April 2013, there was no time limit for disputing an overpayment.

Due to the design of the award notices, it isn’t always easy to tell whether there is an overpayment and, even if there is an overpayment, to tell how much is owed. This is especially true for overpayments that occurred in the early years of the system and are still being recovered. It often isn’t until the claimant’s award ends and they receive a demand from DMB (debt management and banking - part of HMRC) that they realise that they have an overpayment, or appreciate its true extent.

Because historically there has been no limit on the time allowed to dispute an overpayment, people could still dispute an overpayment even after their award had ended, and could still be successful in getting it written off if the relevant evidence was available.

However, in order to manage the number of disputes, and get tax credits system ready for the move to Universal Credit, HMRC decided to introduce a three month time limit for disputes from 6 April 2013.

Although this is a fairly simple change in theory, the operation of the time limit is very complex. As a result, although the time limit appeared on award notices from April 2013, it was fully implemented from October 2013.

When does the time limit run from?

As set out in COP 26, the three month time limit for disputing an overpayment runs from the date of the final award notice relating to the tax year in which the overpayment arose (but see below for overpayments from earlier years).

For people whose claims are auto-renewed the time limit runs from the date the renewal notice states a final decision will be made. For most people this will be 31 July following the end of the tax year to which the claim relates. Note that it is not the date of the renewal notice itself, but the date that it says a decision will be made.

Example 1: Dean and Sharon receive a Section 17 auto-renewal notice which is dated 14 May 2013 as they were in receipt of income based Jobseeker’s allowance for the entire 2012-2013 tax year. The notice states that if HMRC do not hear from the couple, they will confirm the amount due for 2012/13 and make a decision on entitlement for 2013/14 on 31 July 2013. Dean and Sharon have 3 months from 31 July 2013 to dispute any overpayment listed for 2012/13.

Following representations by LITRG, where an appeal is unsuccessful (or only partially successful) and any remaining overpayment then needs to be disputed, the three month time limit for the dispute will run from the date of letter telling the claimant the outcome of their appeal.

Finally, in some cases, such as where a claim is investigated by HMRC under their compliance powers, a new final award notice may be issued at the end of the investigation. If that happens, the three month time limit is activated again from the new final award notice.

Overpayments from earlier years

The time limit was introduced from 6 April 2013 and therefore affected finalised notices for the 2012-13 tax year. As explained above, the time limit runs from the date of the final notice relating to the tax year in which the overpayment arose. However as this is the first year of operation of the time limit, consideration needs to be given for overpayments from earlier years and how the limit will work.

For 2012-13 final award notices only, the time limit will apply to overpayments relating to the 2012-13 tax year and historic overpayments for earlier years.

In other words, claimants should dispute within three months of the 2012-13 final notice in order to challenge any 2012-13 overpayments and any overpayments from earlier years that have not already been disputed. If they do not, the chance may be lost (subject to the relaxation for some disputes between April and October 2013 described below under the heading ‘Interim arrangements from April 2013’).

Example 2: Ronnie has been overpaid during 2012-13 because HMRC did not initially process a change of circumstances that she reported. The overpayment of £1000 is shown on the final award notice dated 21 August 2013. Ronnie will have until 21 November 2013 to dispute that overpayment.

Example 3: Daniel and Hazel have been overpaid in 2012-13 by £850. They also have two overpayments from earlier years. One is from 2005-06 with £2,800 outstanding and the other from 2009-10 with £1,400 outstanding.

Their final award notice for 2012-13 is dated 3 August 2013 and shows all three overpayments.

They have until 3 November 2013 to dispute all three overpayments. Once that date has passed, HMRC’s intention is that they will lose the ability to dispute these overpayments (but see below for a relaxation of this rule in certain situations during 2013-14).

Final award notices for 2013-14 and subsequent years will only carry dispute rights against any overpayment that occurred in the year being finalised. For example, the final notice for 2013-14 will give three months to dispute any overpayment that occurred during 2013-14 but not any overpayment from 2012-13 or earlier years. The time limit for disputing those overpayments will have passed.

Example 4: Ronnie has been overpaid again during 2013-14 as HMRC did not initially process a change of circumstances that she reported. The overpayment of £2500 is shown on the final award notice dated 17 August 2014. Ronnie will have until 17 November 2014 to dispute that overpayment. She cannot dispute the overpayment that will show on the notice for the earlier year of 2012-13 (see example 2) as the time limit for that overpayment has expired.

Interim arrangements from April to October 2013

As noted above, the time limit runs (in most cases) from the date of the final award notice for the relevant tax year. Those who are familiar with award notices will know that this is not as straightforward as it sounds.

There are two major problems with the time limit:

Example 5: Peter and Angela have a joint tax credits claim. They receive an initial 2013-14 award notice and then two further notices after reporting changes to HMRC about their childcare costs. The couple separate in November 2013 and a potential overpayment is showing for 2013-14. The notice will say that the couple have three months to dispute that overpayment from the date of the notice, but as the claim is not yet finalised they will get another three months from their 2013-2014 final award notice to dispute the overpayment.

To address this second issue, interim measures were put in place between April and October 2013.

If a claimant has incurred an overpayment for the 2012-13 tax year, this will be confirmed after they renew their claim. It will be shown on their 2012-13 finalised award notice which will be issued in the summer of 2013. If that is the only overpayment showing on the notice, the claimant will have three months to dispute the overpayment from the date on the final award notice.

As explained above, for 2012-13 final notices, the three month time limit will apply to overpayments that occurred in 2012-13 as well as overpayments from earlier years. For finalised award notices for 2013-14 and later years the intention is that the time limit will apply only to those overpayments occurring in the year being finalised.

Continuing the example of Daniel and Hazel (Example 3 above), the problem with this approach is that at the same time as receiving their final 2012-13 notice, Daniel and Hazel will also receive their initial 2013-14 award. If they then report any changes during the 2013-14 tax year, or if their award is recalculated for any reason, they will receive a new notice. This notice will still show the three historic overpayments (2012-13 now being a previous year overpayment along with 2005-06 and 2009-10) with a notice that says they have three months to dispute those overpayments. These notices do not reflect HMRC’s policy intention and are misleading for claimants.

As a result of representations by LITRG, HMRC have agreed that between April and October 2013, they will accept disputes from people on earlier year overpayments where they have been issued with new award notices that restate the time limit.

Example 6: Suppose Daniel and Hazel have another child in September 2013 and report the birth to HMRC on 5 September. A new award notice will be issued which will show their three historic overpayments and tell them they have three months to dispute from 5 September. In strict terms, the time limit for disputing those overpayments expires on 3 November 2013 (three months from their final award notice for 2012-13).

However, under a relaxation of the rules, HMRC will accept a dispute within three months of the new award notice for 2013-14, which is three months from 5 September 2013 so gives a dispute deadline of 5 December 2013.

Example 7: Suppose Daniel and Hazel did not report any changes to HMRC before October 2013 and so did not receive any further notices for 2013-14. In that case the three month time limit of 3 November 2013 on their 2012-13 notice would stand and they could not dispute their three historic overpayments .

LITRG believe it is essential that claimants fully understand when the time limit runs for both current and historic overpayments. Until HMRC can communicate this clearly and fully, we believe they should continue to accept disputes in cases where people have had notices that state they have three months to dispute. It is expected that new materials will be produced in October 2013 to address these issues.

Claimants with old overpayment debts

Many tax credits claimants do not realise that they have an overpayment until their claim has ended and they receive a demand from Debt Management and Banking. The volume of overpayment debt has meant that HMRC have been slow to chase claimants for old debt. In some cases, claimants have heard nothing from HMRC for a number of years. It is worth checking whether the Limitation Act 1980 might apply in particularly old cases.

Up until October 2013, where claimants received a new demand from HMRC after years of no contact, if they chose to do so they could have sent in a dispute against the overpayment.

From October 2013, HMRC have made it clear that claimants can no longer dispute old overpayments where they have not disputed within 3 months of their final award notice. In practice, this means that those with debts being recovered directly for 2012/13 and earlier years are unlikely to have the right to dispute.

What if a claimant misses the deadline?

If a claimant is outside of the three month time limit, HMRC guidance is that they will accept the dispute if there is a good reason why the claimant missed it. For example due to serious illness. This should be explained in the dispute letter sent to HMRC.

What if HMRC refuse to admit a dispute?

As explained above, the time limit is extremely complicated due to the inflexibility of the award notices and HMRC’s policy intention not matching what is actually stated on the award notices people receive.

It is crucial that advisers check award notices carefully to see whether they are interim or final notices, and to which tax year they relate.

We envisage that there may be situations where claimants have contacted the helpline to dispute an overpayment but have received incorrect advice. Or the issue may have been referred to a back office team and no dispute form been given to the claimant. In such cases, advisers should write to HMRC stating that the dispute should be admitted.

If HMRC still refuse to accept the dispute, then advisers should lodge a formal complaint (remembering that there is generally no suspension of recovery during the complaints process unless agreement can be obtained on a case by case basis from DMB).

Alternative ways to challenge the overpayment

The introduction of the three month time limit for disputes means that the statutory official error provisions become more important.

Under these provisions, an HMRC decision can be revised in favour of the claimant if it is incorrect by reason of official error – defined as an error by HMRC or DWP to which the claimant or adviser did not materially contribute. In most cases these provisions provide an avenue where the appeal time limit has passed, although in certain circumstances they can apply as an alternative to disputes.

Although these official error provisions have always existed, they are rarely used by claimants and advisers. Instead the issues often get dealt with as ‘disputes’ particularly where the time limit for an appeal has expired. For the claimant, the result of a successful challenge under the official error provisions is that the overpayment does not have to be repaid. The two routes are different because a successful official error argument means that the award is amended so the overpayment disappears, whereas with a dispute the overpayment remains but is simply written off so the claimant does not have to repay it.

As there has been no time limit for disputes up to 5 April 2013, there was no need for claimants to specify which heading they were challenging the overpayment under.

However, now the dispute time limit has been implemented, it is important to consider whether the statutory official error provisions apply because the time limit for official error is much longer (five years) than the three months allowed for disputes and the time limit allowed for appeals. The rules relating to official error are explained in a separate section.

If HMRC refuse to admit a dispute because it is outside of the time limit and the appeal time limit has passed, but the case is one that fits the official error provisions, advisers should make a request under the Official Error Regulations and highlight the time limit. The complaints process can be used if HMRC continue to refuse to accept this or in serious cases Judicial Review might need to be considered.

Exceptional circumstances

The seventh step of the process for TCO advisers requires consideration of whether any ‘exceptional circumstances’ were present which prevented the claimant from meeting their responsibilities (see 2 and 4 in the summary table above).

According to the guidance exceptional circumstances do not need to be rare, and the words can simply mean ‘strong reasons’. Examples given of exceptional circumstances are the death of a close relative, serious illness, and flooding of the claimant’s home.

If exceptional circumstances are found then the overpayment that resulted from the claimants’ failure to meet their responsibilities due to exceptional circumstances should be written off.

It is not possible to list circumstances which HMRC will accept as ‘exceptional’. HMRC take a different approach in each and every case depending on the circumstances. It should be noted that the exceptional circumstances with which HMRC are concerned in this part of the test are those existing at the time when the claimant was expected to meet their responsibilities. Exceptional circumstances may also exist which mean it is more difficult for the claimant to repay an overpayment..

Evidence

One of the biggest difficulties with disputes is evidence. HMRC will often refuse to accept that a claimant has met their responsibilities if they cannot locate correspondence or telephone calls in support.

It is for this reason that we recommend that claimants keep a file with copies of all tax credit correspondence. Claimants should keep copies of all letters sent to HMRC as well as detailed notes about any telephone calls including date, time, operator name and a brief description of the conversation.

Sometimes called data protection requests, Subject Access Requests are a useful way to obtain copies of data from HMRC including print outs of household notes (the notes that helpline operators make during telephone calls), other award information and telephone calls. You can find details of how to submit a SAR request in the Obtaining information about your client section of the website.

Records of telephone calls

As noted above, a SAR request can help you obtain copies of phone call recordings. Step 8 of the HMRC staff action guide on dealing with disputes states that telephone records should be checked if the claimant mentions a call in their dispute. In our experience HMRC do not always do this and it is therefore advisable to make it clear in any dispute that HMRC should listen to all relevant recordings and if necessary refer HMRC to their own guidance on this subject.

Unfortunately, despite HMRC repeatedly saying that all telephone calls are recorded, this is not always correct particularly in relation to the early tax credit system. In a number of cases in 2003 and 2004, calls to the helpline that were diverted to a private supplier were not always recorded. The scale of the problem was revealed in the answer to a Parliamentary question by David Laws MP on 20 February 2007 (see col 612W in Hansard for that date). The response from Benefits and Credits was:

‘The private sector advisers dealt mainly with generic, non-claimant specific enquiries. They received the same training as the HMRC staff to enable them to do this.’

However, it would have been very difficult to filter accurately the generic from the claimant-specific, particularly where the same call contained elements of both.

Following a campaign by LITRG and others, tax credit officials have agreed that where an issue arises as to whether a claimant telephoned the helpline at that time to report a change in circumstances or a mistake in their payments, in the absence of any tape recording of the call the claimant will usually be given the benefit of the doubt, with any ensuing overpayment being written off.

Second disputes and next steps

As noted above, when a dispute is received, HMRC will suspend recovery of any overpayment.

If the dispute decision is negative, HMRC will re-commence recovery of the overpayment once again. If the claimant has further evidence in support of the overpayment, a further (second) dispute can be sent to HMRC. It is advisable that this second dispute makes it absolutely clear what the further evidence is and why it changes the previous dispute decision.

In cases where the claimant has further evidence, previously unconsidered by HMRC, recovery will be once again suspended under COP26.

However, if a claimant submits a further dispute with no new evidence, COP26 states that HMRC will not suspend recovery even if HMRC have failed to take this previous information into account.

Given the history of poorly explained dispute responses, we are disappointed that HMRC have decided not to suspend recovery in cases where they have failed to consider a crucial piece of evidence. We continue to argue that recovery should be suspended in our own dispute cases in such circumstances, although the official policy is as set out in Cop26.

Next steps

While there are rights of appeal against awards and other decisions on tax credit entitlement, there is no statutory right of appeal against the exercise by HMRC of their discretion in relation to an overpayment recovery. That is not to say there is no legal or other remedy. If HMRC refuse a request to write off an overpayment resulting from their error, the following steps may be taken.

Although there is no statutory right of appeal against HMRC’s exercise of their discretion, there is one judicial remedy – that of judicial review. See our judicial review section for more information.

Updated 9 December 2013