non dependant/dependant studying abroard

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  • #285205
    aaron94
    Participant

    I have a claimant whose son was born 31031997 (was 16 2013 18 2018) went to study in Israel in October 2013 and is a full time student. We had him down as a dependent until he was 20 and then a non dependent.

    They have advised us that child benefit stopped in October 2013. As the rule for temporary absence rule change in July 2016. The claimant states they were still getting tax credits until the September after he was 20 (this would be 2017).
    First question would you leave the claimants son on the claim as a dependant until the September after his 2017 in line with tax credits or remove him from July 2016 when the rules changed. Im not sure if tax credits knew he was out of the country.
    The claimant has stated that his son came home during covid to study at home. Would you add him back whist he was studying form home (covid period).
    If the son is studying away from home but comes home at holiday times we would still remove him from the claim as he left the country for more than 4 weeks.
    As he is studying in Israel would you class this as an educational establishment?
    If I remove him from 2016 this will cause a £10000 overpayment.

    #285207
    Peter Barker
    Keymaster

    You have got a few things to sort out here:

    – Whether he satisfied the definition of a “qualifying young person” after reaching age 16 until his 20th birthday
    – If he did, whether he was still a member of the claimant’s family for applicable amount purposes
    – If LHA rate or bedroom tax is engaged here, the effect of him being absent from the home both as a dependant and later as a non-dependant

    1. QYP

    The main condition (and the only one he is likely to satisfy) in the Child Benefit Regs simply says this:

    (a) is undertaking a course of full-time education, which is not advanced education and which is not provided by virtue of his employment or any office held by him—

    (i) which is provided at a school or college

    Child Benefit isn’t payable during periods when a QYP is absent from Great Britain for longer than 12 weeks, which could explain why no ChB was paid, but being absent doesn’t prevent him from being a QYP if the course was non-advanced. Or it could be that Child Benefit had investigated and concluded the course was not non-advanced. You’d need to find out more about the nature of the course.

    2. Family

    The applicable amount includes children/QYPs who belong to the “family”. “Family” is defined in s137 of the SSC&B Act 1992 as including a child or QYP who is a member of the “household” and for whom the claimant is “responsible”.

    Reg 20 says the claimant is responsible for a child or QYP who normally lives with him/her – so you’d have to be satisfied that was still the case and the child had not established a normal home in Israel. And Reg 21 says someone ceases to be a member of a household after an absence of 52 weeks. It doesn’t sound as if the absence ever did exceed 52 weeks in this case – so if QYP child still normally lived with the claimant, he remained part of the family at all times until his 20th birthday – not the following September, the 20th birthday is the latest he can still be a QYP.

    At this stage, Reg 7 and temporary absence from home are not engaged because that reg is concerned with occupation of the dwelling as a home. The rules around QYPs and applicable amounts do not rely on occupation of the dwelling specifically. Therefore the 4w limit from 2016 is not a problem in this case. Even if it was, there were transitional provisions for people currently absent on the day the regs were amended so you would probably not remove him from the calculation on the day of the amendment – it would be from the next absence. But anyway, that reg is not engaged. Unless …

    3. Bedrooms

    Here is where it gets messy. Both as a QYP and later as a non-dep, he no longer qualifies for a bedroom in the size criteria if his absence from GB exceeds 4 weeks. This means you can end up with contradictory treatment for applicable amount and eligible rent purposes. I vaguely recall this was considered in JP v Bournemouth [2018] AACR 30 – I mentioned it in a thread about a non-dep earlier this week. I’ll have to re-read that decision and see how it might apply in this case.

    #285208
    Andy Thurman
    Keymaster

    There is probably a reasonable argument for only making changes currently (for 23/24 expenditure so from date first payment of year covers) or possibly from the point he left post COVID if that can be easily established.

    As any overpayment (under the principles of UE) should not be overstated, it can be argued that there would be an impractical level of proof/evidence to be able to confirm the circumstances such that this can be achieved.

    In addition to the period during COVID – start/end of this, are there other, shorter, returns home? Any other changes relating to other household members?

    I would definitely be minded to leave alone the period up to July 2016 where 52 week absences would be OK and Tax Credits continuation (subject to a ‘finalisation’ process reviewing circs at the end of each year) considered sufficient, at this stage, to support a QYP decision to age 20.

    It would also need establishing the date of his last departure prior to July 2016 (and subsequent return) as the period of absence beginning before the rule change would still have up to the 52 weeks. The 4 week limit would then be an issue at the next departure date. This demonstrates the point above regarding the difficulty in getting the facts sufficiently for an overpayment to be confidently raised.

    #285579
    aaron94
    Participant

    thanks for your help.
    We have currently removed the dependant/non dependent from the claim from the paid upto date.

    so from this we leave the dependant on the claim as a dependant until he is 20 which is 31032017.

    Removing him from the claim.
    Does the non dep have 52weeks from when he was absent prior to the 31032017? So if he came home in Dec 2016 and left in Jan 2017 does he have 52 weeks from january 2017 before I remove him from the claim?

    or if he came home dec 2015 and returned in Jan 2016 does he have 52 weeks from jan 2016 before I remove him from the claim.

    I can add him when he returns home due to covid and then remove him when he returns after covid as his absence is going to exceed the 4 weeks.
    I know the course is due to end in July 2024. I need to check if he is going to return home after the course ends.

    #285580
    Peter Barker
    Keymaster

    Like I said, the 4-week thing only applies to occupation and bedrooms. Not the applicable amount. For the period before his 20th birthday, it’s the applicable amount that you are most concerned with here (that’s what i deduce from the figure of £10,000 for the overpayment).

    I’ll say it again, a bit louder this time: A DEPENDENT CHILD/QYP REMAINS IN THE APPLICABLE AMOUNT DURING TEMPORARY ABSENCES OF UP TO 52 WEEKS. THE JULY 2016 ABSENCE FROM GB CHANGES DO NOT AFFECT THIS. AT. ALL.

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