Tax Credits: WTC elements

Both WTC and CTC comprise a number of elements. To be entitled to WTC, everyone must meet the criteria of the basic element. Only if those criteria are met can any of the other WTC elements be added to the claim. The rest of this section explains the WTC elements in more detail.

Basic element of WTC

WTC is payable to claimants who are in ‘qualifying remunerative work’ and who are on a low income or who incur eligible childcare costs. Payment can be enhanced if claimants fulfil the conditions of the various other elements of WTC. 

The basic element is the foundation block of WTC. Without it, the claimant (or their partner in some instances) cannot access any of the other WTC elements. The Tax Credits Act 2002, s.10 states that entitlement for WTC is dependent on the claimant, or both claimants, being engaged in ‘qualifying remunerative work’. It is the basic element that defines qualifying remunerative work.

For claims from 6 April 2015 onwards, SI.No.605/2015 changed the first condition of the overall qualifying remunerative work test, so that claimants must be either employed or self-employed, as defined in the legislation.

The legislative definition of those terms are:

Qualifying remunerative work

To be engaged in qualifying remunerative work a claimant must meet four conditions and not be in one of the specific, excluded groups.

Condition 1

The claimant must be either employed or self-employed and be working at the date of claim, or have accepted an offer of a job which is expected to start within 7 days of the making of the claim.

Condition 2

This condition requires the claimant (and potentially their partner) to fulfil certain age qualifications and be working for a minimum number of hours per week. There are three variations to condition 2. The claimant must satisfy the criteria of at least one of these to be treated as being in qualifying remunerative work.

In summary the requirements are as follows:

In the case of a single claim:

In the case of a joint claim where there is no responsibility for a child or qualifying young person:

In the case of a joint claim where there is responsibility for a child or qualifying young person:

The requirement that couples with children must work at least 24 hours between them was introduced from 6 April 2012. Prior to that date, such couples could qualify for WTC by only working 16 hours per week. Both members of a couple who meet the 24 hour requirement are treated as being in qualifying remunerative work, even if one of them works less than 16 hours.

Example 1
Richard and Sarah have two children. In 2011-2012, they receive WTC and CTC as Richard works 20 hours a week. Sarah does not work. From 6 April 2012, their WTC ended because they were not working a total of 24 hours between them. The couple have two choices, Richard can increase his hours to 24 or Sarah can get a job for at least 4 hours a week.

Example 2
Ken is aged 61 and is married to Deidre. Their son is studying for his A-Levels at college. Ken works 20 hours a week. They receive WTC and CTC in 2011-2012. Their situation remained unchanged from 6 April 2012 because Ken is aged 60 or over and qualifies for WTC by working at least 16 hours as week. The 24 hour rule for couples does not apply in this situation.

Condition 3

The work must be expected to continue for at least 4 weeks after the making of the claim, or if someone hasn’t actually started work, from the date the work starts.

Condition 4

The work must be done for payment or in expectation of payment. The legislation gives no further definition of what this means, however for self-employed claimants this condition must also be read in conjunction with the definition of self-employment to the extent that the activity must be on a commercial basis and with a view to the realisation of profits and be organised and regular. HMRC guidance states:

Work done in expectation of payment means more than a mere hope that payment will be made at a future date. There should be a probability rather than just a possibility that a payment will be made. If a person reasonably expects payments for work done then the condition is satisfied. However, if the person knew before starting the work that payment was unlikely to be made, the remunerative condition is not satisfied. Work done setting a business up is not generally classed as being done in expectation of payment. A person will only reasonably expect to be paid for work done once the business is up and running. Where a retail trade is being carried on the price paid for the goods is not remuneration for the salesman. Whether a self employed retailer is working in expectation of payment cannot be determined simply by the mark up on goods sold. It does not necessarily matter that a self-employed earner might trade at a loss.  (TCTM02411)

Exclusions

Even if a person meets all of the above conditions, they may still not be treated as being in qualifying remunerative work if any of the following exclusions apply. For this purpose, payment of a social security benefit is not work. Also excluded is:

Working hours

Condition 2 details the number of hours a claimant will need to work in order to claim tax credits. However, one of the most difficult areas of WTC can be determining someone’s working hours. Over the years, HMRC have provided very little guidance for people who don’t work a normal 35 hour week for one employer. Although more guidance has been produced recently, it is still difficult and an area that is now the focus of increasing compliance activity by HMRC.

The Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 give some definition of working hours. For apprentices, employees or office-holders, the number of hours they are engaged in qualifying remunerative work is the hours of work they normally perform under their contract of service, apprenticeship or in the office in which they are employed.

In the case of agency workers, it is the number of hours they are normally paid for by the employment agency they are contracted to work for. Finally, for a self-employed person, it is the number of hours they ‘perform’ for payment or in expectation of payment.

In calculating the number of hours a person works any period of customary holiday, paid holiday, time allowed for meals or refreshment (unless the person expects to be paid for that time) is disregarded. Any time allowed for visits to hospital or other establishment for the purposes of monitoring a person’s disability is included but only if the person expects to be paid for that time.

Variable hours

The legislation is of no further help to people who do not work the same hours each week. However, HMRC have various guidance in their manuals, on the GOV.UK website, the TC600 guidance notes and tax credit leaflets which give examples of how to deal with variable hours.

In summary, a common sense approach must be taken if someone has a recognised cycle. So for example, if a person usually works 28 hours per week but takes two days off unpaid and only works 17 hours one week, their normal working hours will still be 28. This can be the case even if a person works less hours for several weeks and a judgement needs to be made in each case where there has been a change in normal working hours.

Periods of unpaid leave of up to 4 weeks do not disrupt normal working hours. Similarly people who do regular overtime can include that in their normal working hours, even if they don’t have that overtime occasionally. For example, if a person is contracted to work 25 hours a week but with overtime has worked 30 hours every week for the last 12 months, it is unlikely that his working hours will fall below 30 if there are two weeks where he only works 25 (due to lack of overtime).

Some people work different hours each week. If there is a pattern to the work, for example a person works 14 hours one week and 18 the next, there is a two week cycle and the person can look at their average across that cycle. In this example the normal working hours would be 16.

Term time and seasonal workers

Special rules exist for people who work at a school, other educational establishments, or other places of employment and have a recognisable annual cycle to their employment. This cycle must include holiday periods (e.g. school vacations) during which they do not work. In this situation, such periods are disregarded when working out normal working hours for WTC purposes.

Example
Nasreen is a dinner lady in a secondary school who works 9 am to 3 pm Monday to Friday during term time: a 30 hour week. During 10 weeks of holidays she does not work. The school holidays are disregarded in determining the number of hours Nasreen works, so she is treated as working 30 hours a week all year round.  

However, seasonal workers who do not have an annual cycle and work only a few months of each year (such as summer fairground workers) can only claim WTC for the periods they actually work. The TC600 guidance notes include the following example:

Example
Julie usually does 35 hours work a week for three months each summer. She can claim Working Tax Credit during this three-month period but when she finishes this seasonal work, her Working Tax Credit will stop, unless she gets another job within a week of finishing.

Foster Carers

Generally the work done by foster carers and shared lives (or adult placement) carers which is for payment is treated as remunerative work and they can, therefore,  be entitled to WTC. Although, respite carers who care for a person who is not a member of their household, and whose payments from the local authority (or voluntary organisation or primary care trust) are exempt from income tax under the Rent a Room scheme, are not able to count their caring activities as qualifying remunerative work for WTC purposes. This exemption also applies to foster carers and shared lives/adult placement carers who opt for the Rent a Room scheme.

HMRC instructions tell TCO staff to accept the number of working hours declared on the claim form. This is despite the fact that income tax concessions applying to both sectors from 2003/2004 mean that the vast majority of carers are treated as having a nil income/profit.

For foster carers the position is not necessarily straightforward. Where a person is working as a foster carer and is entitled to ‘qualifying care relief’ their profits for a tax year from the provision of qualifying care are deemed to be nil for Income Tax and Class 4 NICs purposes if his or her total receipts from qualifying care do not exceed their individual qualifying amount. This can result in many foster carers having no profit and no loss for income tax purposes and also tax credit purposes.

Where their total receipts from qualifying care exceed their qualifying amount can choose between;

Whichever method is used, the profits are chargeable to Income Tax and Class 4 NICs and should also be included as income for tax credits.

HMRC’s guidance states that in these scenarios above they will be considered to have met the definition of a self-employed worker.

However, HMRC also state that where a foster carer makes a loss their activities may not meet the conditions which apply to the self-employment test, in which case they will not necessarily be regarded being in qualifying remunerative work for tax credit purposes. For claims from 6 April 2015 onwards, claimants must be either employed or self-employed. For tax credit purposes, HMRC define self-employed as meaning the self-employed activity is done on a commercial basis with a view to realising a profit and it must be organised and regular. See Understanding self-employment for more information.

Note: We have raised this as an issue with HMRC and have asked for further clarification.

Apprenticeships

HMRC say that the hours worked as an apprentice count as remunerative work for WTC purposes where there is a contract of employment or apprenticeship and payment for the work done whilst on the scheme is classed as earnings (as opposed to reimbursement of expenses) and subject to income tax and National Insurance contributions.

However, if the only payment is a non-taxable training allowance, monies in connection with participating in the Intensive Activity Period (part of jobseekers’ allowance schemes), a sports award or other tax-exempt discretionary payments, working hours done under the apprenticeship will not count as remunerative work.

Self employed

For claims before 6 April 2015, the number of hours a self-employed person works were those done for payment or in expectation of payment. No further guidance is given. This is a particularly important area given the rise in compliance investigations by HMRC where they believe a person is not doing work in expectation of payment.

For claims from 6 April 2015 onwards, the number of hours a self-employed person works should be taken as those done in pursuing the activitity where is it done on a commercial basis, with a view to making a profit and which is organised and regular.

The HMRC compliance manual (CCM6755) states that any hours which will be costed to the client/customer as spent in producing/providing the individual order or service count when working out hours for self-employment. In addition, the following activities also count:

The guidance goes on to say that:

The amount of time being spent on these activities may also depend upon how established the business is. If a business is in its early days, it is more likely that the claimant will have to invest large amounts of time and effort in building up business contacts for little or no outcome. However, over time the amount of unproductive time spent in this way reduce considerably. If it does not, it may be an indication that the work is not genuinely remunerative.

The compliance manual also acknowledges that particular trades may present claimants with more difficulty in calculating their working hours and guidance is given for bed and breakfast owners, artists, writers, property renovators and door to door sales people (CCM6760). See the understanding self-employment  page for more detail about compliance investigations and the self-employed.

Workers who are laid off

As a response to the economic climate, HMRC issued guidance explaining how people who are laid off or who have a temporary reduction in working hours should calculate their working hours.

Providing their hours are reduced or they are laid off for four weeks or less, there is no interruption to normal working hours for tax credits. However, if people know from the outset that their hours are likely to be reduced for more than 4 weeks, or that they have been laid off indefinitely or for more than 4 weeks, the change in hours will be effective from the date the claimant is notified of this. This 4 week ‘grace’ period is separate from the four week run-on which commences after the grace period.

Example
A claimant is laid off on 8th January. Her employer tells her that she can expect to go back to work on 1st February. Because she has been laid off for less than 4 weeks she is treated as being in remunerative work.
On 26th January, her employer tells her that they do not know if she will be able to go back to work at all. Because she has been laid off for more than 4 weeks and her employer does not know when she will be able to return to work, she is treated as if she finished work on 26th January. The 4 weeks run on would apply from 26th January. (TCTM02461)

HMRC have other guidance at TCTM02457 which suggests that each case must be considered individually and even longer periods off work may not disrupt the person’s normal working hours if they have a cycle of work. In practice, HMRC tend to apply the four week criteria above as standard.

Directors

The position of Directors for WTC has caused much discussion in the tax world over the last few years. However, HMRC have confirmed that for WTC purposes, a Director, as an office holder, does not have to be engaged under a contract of service in order to claim WTC. This interpretation of the regulations means that Directors do not need to pay themselves the National Minimum Wage in order to claim tax credits as such a requirement only exists where there is a contract of service.

Periods of leave and time off work

The Working Tax Credit (Entitlement and Maximum Rate) Regulations include provision for people who are absent from work to continue to be treated as being in qualifying remunerative work during certain periods of leave.

Maternity, Paternity, Adoption and Shared Parental Leave

During any period a claimant receives maternity allowance, statutory maternity pay, or adoption pay they are treated as being in qualifying remunerative work. The same should apply during absences from work whilst on ordinary maternity leave (26 weeks), ordinary adoption leave, or the first 13 weeks of additional maternity leave or adoption leave.

During any period that a claimant receives ordinary statutory paternity pay, additional statutory paternity pay or is absent from work whilst on ordinary paternity leave they are treated as being in qualifying remunerative work.

Parents of babies born between 3 April 2011 and 5 April 2015 had the right to take additional paternity leave. This resulted in changes to the tax credit system for those taking paternity leave which meant claimants were also treated as in qualifying remunerative work during any period of additional statutory paternity leave providing that during that period they would have been paid additional statutory paternity pay had the conditions of entitlement in Parts 2 or 3 of the Additional Statutory Paternity Pay (General) Regulations 2010 been satisfied.

This meant, effectively, that they could continue to receive tax credits for so long as their partner would have been entitled to statutory maternity pay (SMP) or additional SMP. For example, a woman who took 24 weeks of maternity leave and received SMP for that period. She then went back to work and her husband took additional paternity leave. He was entitled to take 26 weeks additional paternity leave but could only continue to receive tax credits for 15 weeks, being the balance of time remaining on the woman’s SMP entitlement.

For children born or adopted from 5 April 2015 onwards, parents can qualify for shared parental leave. This scheme allows parents to share statutory parental leave periods and there is more information on the GOV.UK website. It can be used alongside of, or instead of, traditional maternity or adoption leave.

Statutory shared parental pay is payable for part of the leave period. For tax credit purposes, a claimant will be regarded as remaining in remunerative work whilst they are in receipt of statutory shared parental pay, providing they were in qualifying remunerative work (or treated as being) immediately prior to the period of statutory leave.

The person must have been engaged in qualifying remunerative work immediately before the period of leave began for any of the above extensions to apply. For first time parents, when determining whether they meet this requirement, they should be treated as if they already had responsibility for a child or qualifying young person.

HMRC interpret these provisions as requiring the claimant to continue to meet the conditions in Regulation 4(1) Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002. This interpretation has specific impact on couples with children who are subject to the requirement to work 24 hours. A couple, where one partner works 16 hours and the other 8, are both treated as being in qualifying remunerative work because their combined working hours total 24. If the person working 8 hours goes on maternity leave, they continue to be treated as being in qualifying remunerative work. However, if the person working 16 hours loses their job during the maternity leave period, neither claimant will be treated as being in qualifying remunerative work from the point at which the job is lost (subject to the four week run-on) because their total working hours are now less than 24.

Example
Ian and Barbara have two children. Ian works 16 hours and Barbara works 8 hours a week. Barbara is expecting her third child and goes on maternity leave in July 2013. She continues to be treated as being in qualifying remunerative work during that period. Ian loses his job in September 2013. The couples WTC ceases at that point because neither of them are treated as in qualifying remunerative work as their combined hours are less than 24.

Example
Megan and Peter have one child. Megan works 22 hours a week and Peter works 4 hours a week. They qualify for WTC and CTC from April 2012. Megan goes on maternity leave in July 2013. In October 2013, Peter loses his job. As Megan is only treated as working 22 hours a week, the couple will lose their entitlement to WTC from October 2013.

Although HMRC have taken this interpretation of the regulations, alternative interpretations may be possible and could be challenged by advisers at an appeal tribunal. The same rules apply to the self-employed, if they would have been entitled to the relevant benefits or leave had they been employed.

Sick leave

Claimants are treated as in qualifying remunerative work during certain periods of sick leave if they are in receipt of:

The last three bullet points are time limited to 28 weeks. A self-employed person is also treated as in qualifying remunerative work for up to 28 weeks if they would have qualified for one of the benefits listed above had they been employed.

Both employed and self-employed claimants must have been in qualifying remunerative work immediately before the period of sick leave began in order to continue to receive WTC.

Other time off work

A claimant is treated as being in qualifying remunerative work for any period during which they are on strike for up to 10 days at a time, provided they were working up to the beginning of that period. If the strike goes on for longer than 10 days, they will lose their WTC entitlement; but curiously any strike pay still counts as income for tax credit purposes.

Anyone receiving pay in lieu of notice is not treated as working during the period covered by the pay, but this does not affect their entitlement to the four-week run-on payment of WTC if they qualify for that.

If a claimant is suspended from work while complaints or allegations against them are investigated, they are still treated as being in qualifying remunerative work, as long as they were working up to the date they were suspended.

A period of unpaid leave lasting not more than 4 weeks, which is not part of a series of periods spent on unpaid leave, and which does not combine with other factors to reduce normal working hours should not, in its self, affect normal working hours.

Gaps between jobs

Tax credits legislation allows a gap between jobs of up to 7 days without any interruption to WTC. A claimant is treated as in qualifying remunerative work for the required number of hours as if they have been engaged in such work during these 7 days.

Four week run-on

In certain circumstances, claimants continue to be treated as being in qualifying remunerative work for a period of 4 weeks after their work ends.  This is called the ‘four week run-on’. The four week run-on was introduced in its original form from 6 April 2007.

From that date, if a claimant has been working for not less than 16 or 30 hours a week, and they either drop their working hours to below 16 a week or stop working altogether, they will be treated as continuing to work for the four weeks immediately afterwards. Thus their WTC entitlement will continue during those four weeks after they have finished work, or reduced their hours.

It should be noted that HMRC have issued guidance in their technical manual (TCTM 02461) which allows claimants who are laid off from work for less than 4 weeks from the offset to remain in qualifying remunerative work. This is on the basis that a disruption to normal working hours of less than 4 weeks does not change their normal pattern. The 4 week run-on is different and in addition to this 4 week ‘grace’ period.

The original regulations were unclear whether the childcare element was included in the four week run-on, but subsequent amendments made clear HMRC’s policy intention that it should be.

Originally, the four week run-on did not apply to WTC claimants who worked 30 or more hours a week and whose working hours fell to below 30 but above 16 hours a week. From July 2009, the four week run-on was extended to this group of WTC claimants.

Also with effect from July 2009, parents whose working hours fall to the extent that the childcare element of WTC is lost (but entitlement to the basic and other elements of WTC remains) also receive a run-on of this element for four weeks.

Further changes from April 2010 mean that if a means tested benefit is claimed during the four week run-on (which under normal tax credit rules would entitle a person to maximum tax credits) maximum credits will not be payable and the normal income test will be applied.

As the qualifying criteria for WTC changed again in April 2012 for couples with children, so has the criteria for the four-week run-on. Where a couple’s combined working hours fall below the required 24, the four week run-on will apply.

Disability element of WTC

When tax credits were introduced in April 2003, they replaced several other benefits including Disabled Person’s Tax Credit (DPTC). The disability element of WTC replicates DPTC by allowing a claimant who qualifies for it to work fewer hours than normally required for entitlement to WTC. If a claimant doesn’t have responsibility for children, or is aged 60 or over, it means they can claim working tax credit by working at least 16 hours rather than 30. It is also worth a considerable amount of money to low income claimants. The disability element in 2017/2018 is worth £3,000 a year.

Disability plays an important part in the tax credit system, but often it is one of the most difficult parts to understand. A claimant with disabilities may not necessarily be disabled for tax credit purposes. HMRC consider the disability element of tax credits as high on their list of areas where people make errors, indeed their own staff find it a difficult area to deal with. As a result much HMRC compliance activity is directed towards claims involving a disability element. 

You can find the full qualification criteria for this element in our understanding disability section.

Severe disability element of WTC

This element is different to the disability element. Claimants can get this even if they don’t qualify for the disability element. This is because there is no requirement that the disabled person must work to get this element so if the worker has a partner who doesn’t work but meets the condition below, they will get the severe disability element included.

You can find the full qualification criteria for the severe disability element in our understanding disability section.

30 Hour element of WTC

Single claimants who work at least 30 hours per week will have the 30 hour element included in their award.

Similarly, if one member of a couple works at least 30 hours per week, the 30 hour element can be included. If both members work at least 30 hours, only one 30 hour element is included.

The 30 hour element is also included if at least one of the claimants is responsible for a child or qualifying young person and the total number of hours which the couple work is at least 30. This is subject to the requirement that at least one person is in qualifying remunerative work of at least 16 hours per week.

Second adult/lone parent element of WTC

Lone parent element

Single claimants who are responsible for a child or qualifying young person are entitled to the lone parent element.

Second adult element

Where a couple claim jointly, they will normally be entitled to have a second adult element included in their award. However there are some exceptions;. no second adult element is included where:

But these exclusions do not apply if one or both of the joint claimants are responsible for a child or young person. The first exclusion does not apply if one of them can claim the disability element or if they qualify for WTC because one of them is aged 60 or over and works at least 16 hours.

Childcare element of WTC

Claimants can get help with up to 70% of their childcare costs through the childcare element of WTC. The childcare element is largely covered by Regulations 13-16 Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 (SI 2002/2005). Although normally paid to the main carer alongside child tax credit (CTC), it is part of WTC and therefore has various work conditions attached to it.

You can find full details of the childcare element in our understanding childcare section.

50+ element of WTC

The 50+ element of WTC ceased for all claimants from 6 April 2012, even if they had not received a full 12 months entitlement. We outline the criteria for the element as it was before April 2012 as it may still be relevant for disputes and appeals that are ongoing.

The basic conditions

There were four conditions that must have been met to qualify for the 50+ element. The claimant must:

  1. be aged 50 or over
  2. have started qualifying remunerative work
  3. work at least 16 hours per week
  4. have been out of work and claiming certain benefits for at least 6 months before starting work.

In a joint claim, if both claimants meet the criteria, two elements can be paid. The 50+ element was only paid for a 12 month maximum.  This was either in one continuous period or in ’linked’ periods, providing the gap between them was no more than 26 weeks.

Although the 50+ element is awarded if a claimant works at least 16 hours, it is paid at a higher amount if they work 30 or more hours a week.

Qualifying benefits

To meet the fourth condition, the claimant must have received one of the following benefits for at least 6 months immediately before starting qualifying remunerative work. The 6 months can be a continuous period, or shorter ‘linked’ periods provided the gap between them was less than 12 weeks.

The benefits are income support, jobseeker’s allowance (income or contribution based), incapacity benefit, severe disablement allowance, state retirement pension and pension credit, employment and support allowance (contribution or income related).

Also included is a training allowance paid under section 2(1) of the Employment and Training Act 1972 for schemes known as ‘Work Based Learning for Adults’ and ‘Training for Work’. Time where the claimant was entitled to be credited with contributions or earnings in accordance with the Social Security (Credits) Regulations 1975 also counts.

A claimant could also qualify if their partner was getting one of the listed benefits and an increase was being paid for them in that benefit.

In certain cases a person can have been receiving the above benefits for less than six months, provided that for the rest of the period they or their partner were receiving carer’s allowance, bereavement allowance or widowed parent’s allowance instead.

Updated 13 September 2017