Children with shared residency

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  • #39700
    marlene
    Participant

    I have an appeal from a claimant who after divorce shares residency of his son, with Mum on a 50/50 basis, as defined by court order. Mum receives child benefit and tax credits. Therefore we have interpreted Reg 20, and are saying that the child is a memeber of Mums household not Dad’s as he is not the person who ‘receives’ child benefit.

    His argument in his appeal is that HMRC have agreed that he is entitled to child benefit, but that they can only make payments to one person, and so they have decided to pay Mum. He thinks that he should be treated as having his child in his household for the weeks that he has him, and removed for the weeks that he is not.

    My question, has anyone ever done this? As reading Reg 20, I would say that this would only be possible where no one is getting child benefit, or that two people have claimed and HMRC are deciding who to pay, although the guidance in CPAG seems to suggest that more than one person can claim child benefit for a child, so bit confused. Does ‘receive’ mean actually getting, or is HMRC statement that entitlement conditions are fulfilled sufficient?

    Any thoughts gratefully received! :bigsmile:

    #113078
    Chris Robbins
    Participant

    I think Dad loses out here. Reg 20 is explicit. Where the child spends equal amounts of time with both parents it is receipt of child benefit (not entitlement to) which defines the household in which the child normally lives.
    So, no change to Dad’s normal award. Is this a case for your DHP fund if there is some entitlement?

    #113079
    Kevin D
    Participant

    “Receive” isn’t quite so straight forward. It depends on exactly what HMRC has decided. If entitlement to CB has been determined as being to the Dad, the question of WHY it is being paid to Mum must be explored. Has Dad indicated agreement for payment of CB to Mum’s account for convenience? If that is all there is to it, then my view it is Dad who is “receiving” payment – the fact that it’s to a third party’s account isn’t relevant (case law supports this approach).

    However, if HMRC has decided CB is “payable” to Mum, then Mum “receives” it.

    {Edited to add} Case law that may be of interest includes (in no particular order): R(IS) 10/94; R4/94(IS) [NI decision]; CIS/2317/2006 and CIS/928/2009. Tthe latter two are specifically about child benefit.

    #113086
    Anonymous
    Guest

    You might want to investigate the 50:50 split a bit further since things are rarely that simple. There are commissioner’s decisions that say you need to look at hours rather than days or weeks, and you should take account of who has custody during school time.

    #113108
    marlene
    Participant

    Thanks for your comments!

    The letter from HMRC states that they agree that Mr fulfils the conditions of entitlement for child benefit, but that they can only pay one person, and in this instance they have decided to pay Mum. It is my interpretation of this that mum ‘receives’ payment of child benefit, and that is where I stop. I have taken the view that the following paragraphs of Reg 20 would only apply where, no one is getting child benefit, or where two people are (although from what I have read this doesn’t happen). I am confused by the last part, in any other case the person who has Primary responsibility for the child. Am I right to disregard this as I have stopped at 20(2)(a)?

    However in this case, the care is equal, albeit the few hours that child spends with maternal grandmother whislt in Mums time! So not sure that will help me anyway! My concern is that he has said that the fact that the person who receives child benefit means that he is discriminated against by gender, as child benefit have told him that they pay in preference to the mother, I guess I just need to get the Tribunal to consider the Human Rights aspect as part of the appeal.

    :~

    #113109
    liffe
    Participant

    Whilst it may not be relevant, I hope that you do take it to Tribunal and I hope a Tribunal does make a link between Human Rights (Right to a Family Life) and the calculation of benefit/ treatment of (mostly) dads who have shared responsibility for their children.

    Anyway, enough tub-thumping from me, you just got me going on one of the greatest injustices in Social law.

    #113110
    marlene
    Participant

    Totally agree, have every sympathy with the claimant. Ironically I also have an appeal from a Mum who is getting child benefit & tax credits as dad doesn’t need them, but Dad has the child in his care for the majority of the time, so she wins! As there is a question about where the child normally resides, and she gets the child benefit!

    #113111
    liffe
    Participant

    What makes me laugh is that TTS alredy found against SOS in a previous JSA decision and as a result SOS changed the law, thereby moving the goalposts and continuing the unfairness…

    I did say no tub-thumping from me but this issue always gets me irate.

    #113113
    Natalie
    Participant

    I submitted a case for tribunal for this too although mine was dad getting child benefit and mum wanting applicable amount anyway. The case was dismissed.

    #113114
    liffe
    Participant

    How sad 🙁

    I suppose the Tribunal is bound by the law. That is what needs change, we are in a modern world and Social policy should account for modern circumstances. Let’s hope your claimant is over 35 at the very least…

    #121956
    Abigail_Harvey
    Participant

    I have a DHP application from a 33 year old single Dad in a one bedroom flat wanting DHP to cover the shortfall as he is only entitled to the shared room LHA. CLmt is currently in a custody battle with this ex and says he has the 2 children stay with him every weekend. He also claims that his ex sometimes leaves the children with him for up to 5 months at a time! However, she gets the child benefit. I discussed this with a coleague who thinks that if clmt and ex-partner share custody of the children 50/50, then the dependents can be loaded on both their claims giving them both the child premium and increased LHA rate. Is this true? I can’t find anything about this. She thinks it’s a recent change.

    #121957
    John Boxall
    Participant

    If you have two children then each parent can have one on their clauim – rather solomonic. But otherwise if there’s a dispute it’s who gets Child Benefit

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #121958
    Abigail_Harvey
    Participant

    OK… my colleague thinks that if clmts produces evidence of a parental responsibility agreement that means shared custody has been agreed (50/50) by the court then we can include the dependents on both claims (if indeed both parties are claiming) and therefore increase my claimant’s LHA rate so DHP is no longer required. Any idea if/where I could find something to substantiate this?

    #121964
    Anonymous
    Guest

    Sorry Abigail but your colleague is wrong. Reg 20 is quite clear on this.

    #121971
    Kay_Tade
    Participant

    Martin’s right. Your best option, if it’s possible, is to go with John’s option. I’m not quite sure where your colleague has got that idea from so no clue as to how it can be substantiated.

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