Hockenjos – Similar case

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  • #38617
    sharonwarner
    Participant

    I have a claimant who wishes to appeal against his child not being included in his HB claim.

    He has a shared residency order but his ex receives the Child Benefit and we have said that for this reason, he is only entitled to 1 bed and he wants to appeal.

    I know that a lot of people made appeals along similar lines since Hockenjos but can’t seem to find a final outcome from all of these –

    Could anyone point me in the right direction for a CD on such a case?

    Many thanks

    #108998
    Kay_Tade
    Participant

    Maybe a starting point? Courtesy of cpag.

    http://www.cpag.org.uk/cro/wrb/wrb194/after_stec.htm

    #109008
    Anonymous
    Guest

    The CPAG note is a useful introduction, but it is somewhat out of date.

    First, the Stec v Reynolds dilemma no longer applies since the UK Supreme Court decided in RJM that means tested benefits are possessions for the purposes of A1P1. So that makes things easier.

    Second, the CTC case of Humphreys, currently with the Supreme court, as it stands holds that CTC is supposed to be used to feed and clothe the child so it makes no difference which parent handles the money – the parent personally suffers no disadvantage from being deprived of it. This is being challenged in the Supreme Court.

    Finally, the CPAG note refers to the difficulty of relying on Article 8 of the convention (family life)because the courts are not really convinced that you can engage this in a benefits appeal. However, in the particular case of the HB size criteria, I think article 8 is a much stronger argument because without the rooms the man cannot really have his children to stay and so he is deprived of his right to have a family life.

    Also, unlike some of the other human rights cases I have come across, there is a clear remedy that will work in shared custody cases – the offending words in HB Reg 20 can be struck down as ultra vires leaving a coherent regulation behind. So many human rights challenges fail on the issue of remedy: the Upper Tribunal judge will say “OK, suppose you convince me your rights have been violated. What do you want me to do about it? What is the result of the appeal?” Here the desired result is clear and workable.

    #109013
    sharonwarner
    Participant

    Thank you both. our Cpag book is from 2003 and the one I have ordered wont be here until November!!!

    I have the customer coming in on Monday to meet with me so that I can show him the basis on which we have made the decision but he has stated that he wishes to appeal.

    When I prepare the submission, I would like to include some caselaw ideally to confirm my view but can’t seem to find anything, do either of you know of any recent CD’s at all?

    #109014
    Kay_Tade
    Participant

    You will find a few more cases, including the ones Peter cited above, on the link below. As it stands, unless something happens with the Humphreys case, the decisions are quite clear in their reasoning.

    http://www.tandfonline.com/doi/full/10.1080/09649069.2010.539364#h2

    #109017
    Anonymous
    Guest

    Yes: this one http://www.osscsc.gov.uk/Aspx/view.aspx?id=3286 [2011] UKUT 262 AAC

    This case only deals with applicable amounts and not the particular family life issue arising from the size criteria and Article 8. But it does have some relevance, in that the main reason for the decision is that the detailed evidence submitted in Hockenjos is now out of date and we should not just automatically assume that men are discriminated against by Reg 20. Any man seeking to rely on a human rights argument will have to prove with up to date statistical evidence that Reg 20 still has a disproportionate effect on men.

    The Judge goes on to say that he would have regarded the discrimination as justified anyway if it had come to that, but as I say he was not asked to consider the very particular problem of how the size criteria impact on family life in a shared custody case. I still think that the discrimination is much harder to justify in those circumstances and as far as I know this sub-argument remains untested.

    #109018
    sharonwarner
    Participant

    Thank you all for your expert help!

    As it stands, he will have to wait 12 months plus for the hearing anyway 🙁

    #109021
    Kevin D
    Participant

    There is a fairly recent thread on Rightsnet which may also be of interest:

    http://www.rightsnet.org.uk/forums/viewthread/1596

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