Tax Credits: Who can claim
Claimants can get help with their childcare costs through the childcare element of working tax credit (WTC). The childcare element is largely covered by Regulations 13-16 WTC (Entitlement and Maximum Rate) Regulations 2002. 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.
- Who can claim childcare?
- What does ‘incapacitated’ mean for childcare purposes?
- What are relevant childcare charges?
- What is a child for childcare purposes?
- Who is responsible for a child?
- There is entitlement to the childcare element if:
- The claimant is a lone parent engaged in qualifying remunerative work (16 hours per week or more); or
- The claimant is a couple one or both of whom are responsible for a child or young person and they are both engaged in qualifying remunerative work (at least 16 hours per week each); or
- The claimant is part of a couple where one person is engaged in qualifying remunerative work (of at least 16 hours per week) and the other is either incapacitated, a hospital in-patient, in prison or is entitled to carer’s allowance (from 6 April 2012).
- The claimant is incurring relevant childcare charges for a child for whom the claimant (or their partner) is responsible.
Note that the exception from the requirement for a couple to both work 16 hours in relation to those entitled to carer’s allowance was introduced from 6 April 2012. However, as this change was announced close to 6 April 2012 was not widely publicised. If advisers do find that claimants have missed out as a result, it may be possible to argue for the additional childcare to be paid under the official error regulations.
What does ‘incapacitated’ mean for childcare purposes?
It is important to note that being ‘incapacitated’ is different to qualifying for the disability element of WTC. The meaning is set out in Regulation 13(5)-13(8) WTC EMR Regs 2002. One member of the couple must be working at least 16 hours and one of the benefits/credits listed below must be payable in respect of the other member:
- housing benefit with a disability premium, or a higher pensioner premium;
- housing benefit with a childcare earnings disregard because the other member is ‘incapacitated’ under the HB regulations
- disability living allowance (DLA);
- personal independence payment (PIP)
- armed forces independence payment (AFIP)
- attendance allowance (AA);
- severe disablement allowance;
- increase of disablement pension under Section 104 Contributions and Benefits Act 1992;
- incapacity benefit at the short-term higher rate or the long-term rate;
- industrial injuries benefit with constant attendance allowance;
- war disablement pension with constant attendance allowance or mobility supplement;
- a vehicle under the Invalid Vehicle Scheme.
- contributory employment and support allowance (CBESA) or a limited capability for work credit (from 1 May 2012) where entitlement to that allowance, that credit, statutory sick pay (SSP) or short term higher rate incapacity benefit, long term incapacity benefit or severe disablement allowance has existed for a period of 28 weeks comprising one continuous period or two linked periods (provided that, if the person received statutory sick pay, they also met the relevant contribution conditions);
Under the last bullet point, linked periods can include any periods of:
- CBESA providing they were no more than 12 weeks apart
- SSP as long as they were no more than 8 weeks apart
- CBESA after receiving SSP as long as they were no more than 12 weeks apart
- CBESA after receiving short term higher rate or long term incapacity benefit or severe disablement allowance as long as they were no more than 12 weeks apart.
If the claimant is in hospital, but would be getting severe disablement allowance, DLA, PIP, AFIP, AA or an increase of disablement pension if they were not, they will still qualify.
Relevant childcare charges are costs that are incurred for qualifying childcare. They are calculated in a very specific way, which is covered in more detail in our calculating childcare section.
Not all childcare costs are counted as relevant childcare charges. Only certain types of childcare, those which are registered or approved, count. HMRC produce a childcare guide called WTC 5 which sets out a full list of qualifying childcare (see pages 3-6). For that reason we have not reproduced it here.
One point to note is that the definition of childcare changed substantially in July 2009 which meant that some providers who were registered or approved prior to that date were no longer approved after that date. If tax credits continued to be claimed on non-qualifying childcare after that date it would likely lead to an overpayment. More information is available in an article written by the Low Incomes Tax Reform Group at the time of the changes.
Some childcare, even though registered or approved, will not count if it is specifically excluded by the legislation. This includes certain childcare provided by relatives. Of particular note:
- If a relative is a registered childminder and looks after the child in their home (rather than the child’s own home) the childcare will qualify. If the care is provided in the child’s home, even if the relative is a registered childminder, it is excluded childcare.
- If the relative is an approved childcare provider under the Home Childcare Providers Scheme in Northern Ireland or Wales, the childcare can be qualifying providing that it is provided outside of the child’s own home and the relative also cares for at least one other non-related child.
In these cases relative means parent, grandparent, aunt, uncle, brother or sister whether by blood, half blood, marriage or civil partnership or affinity.
Also excluded is care provided by a foster parent, a foster carer or kinship carer in respect of a child whom that person is fostering or looking after as the child’s kinship carer. Any charges paid in respect of a child’s compulsory education or paid to or by a partner in respect of a child they are responsible for are also excluded.
The definition of a child for childcare purposes is different to that for CTC. Childcare is only payable for children until:
- 1st September following the child’s 15th birthday;
- 1st September following the child’s 16th birthday if the child is on a blind register (or came off in the 28 weeks before the claim for childcare) or the parents receive DLA or PIP or AFIP for the child (or would do so but for the child being a patient in hospital).
Childcare costs can only be claimed for a child whom the claimant (or their partner) are responsible for. This has the same meaning as responsibility for CTC purposes and briefly means that:
- the child or young person 'normally lives with you' (the 'normally living with' test - see below);
- if the child or young person normally lives both with you and with another person (for example their other parent from whom you are separated or divorced), you have 'main responsibility' for them ('the main responsibility test' - see below); and
the child or young person is not:
- being looked after by the local authority, or
- in custody, or
- receiving tax credits for a child of their own, or
- receiving incapacity benefit for himself or herself (see 'other rules about responsibility for a child' below) or receiving working tax credit in their own right.
More information about the responsibility test can be found in the HMRC tax credits technical manual.
Updated 23 May 2016