joint custody of child

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    I have a case where both parents have joint and equal custody of child – through the courts – have copy of court order confirming this – can I add child to both households as in hockenjos case for LHA purposes as they do need the extra room – DHP is not appropriate as not a “short term” problem
    or do I have to still apply child benefit test . I would have thought is order of custody is decided by the court – then we should have give two rooms to each person?


    Sorry, you can’t allow 2 beds for each – apply the child benefit test.


    I’ve recived an appeal regarding a similar situation this morning. There isn’t formal joint custody but the children spend roughly equal amounts of time with the divorced parents. The HB claimant is the parent without child benefit and child tax credit and the decision is that he only has the one-bed LHA because the children are not occupiers of his dwelling. I’d rely on Marchant for justifying the decision but the appellant has suggested that Marchant has no relevance because it pre-dates the introduction of LHA. It seems to me that Marchant still holds, whether we’re dealing with LHA or not but I’d really appreciate some opinions. He’s also citing HRA Articles 8 and 14 (respect for family life and discrimination) but I can’t see that they’re engaged. Can anyone point to judgements I could use to dispose of the HRA argument?


    since original post – and discussion with manager – and searching welfare rights etc – it looks like marchant still holds for LHA as well and the CB test still applies
    I have copied the relevant extract from the Marchant Judgement, Copied the relevant reg from the HB 2006 regs and copied a para from the Welfare Rights web site showing the limitations of the Hockenjos

    Judgement .
    ex parteex parte
    [[b:af9927b47f]b]STUART MARCHANT[/b:af9927b47f][/b]
    Regulation 14, which goes on to provide that, when a child spends equal time in different households, or there is a question as to which household he is living in, the child is to be treated as ‘normally living’ with the person receiving child benefit in respect of that child. Regulation 15 in turn makes clear that the child shall be treated as a member of the household of the partner receiving such benefit. It thus seems clear that, for the overall purpose of claiming housing benefit, children in the position of the claimant’s three sons are not to be treated as persons for whom he is responsible, nor as persons normally living with him, nor as members of his household. Instead, they are to be treated as the responsibility of his former partner, normally living with her and part of her household, in respect of which she is the proper claimant for housing benefit.
    It also seems clear that for both partners to claim and receive housing benefit at a level based on the needs of the children as members of both households would be to circumvent the clear purpose of the scheme, which appears to be designed to settle the question: in which household does the child reside for the proposes of a claim for housing benefit? In these circumstances, it also seems clear to me that, where spouses or partners live apart, resolution of the question in which household does the child normally live and/or of which household is the child to be regarded as a member, should also resolve the question: which dwelling does the child occupy for the purposes of the claim to household benefit by one of the spouses or partners? That being so, the
    respondents were in my view entitled to treat the applicant as the sole occupier when applying to the Rent Officer for a determination to be made pursuant to Regulation
    12A of the 1987 Regulations.
    It may appear, as Mr Drabble QC has argued, that such a result is an unfortunate one which is likely to work to the detriment of shared access arrangements and the provision of proper (in the sense of sufficiently spacious) accommodation being available for children amicably accommodated in split households. That may well be so. The contrary arguments however are essentially twofold. First, given that the housing benefit system is intended only to assist a claimant to meet the reasonable costs of his or her household, to determine a higher maximum rent to allow for children who are no longer members of that household, but have become members of the separate
    household of the former spouse or partner, is in essence to pay benefit in respect of persons excluded from the assessment. Second, to include a child as occupier of the dwelling of a parent in whose household the child does not reside would frequently involve their inclusion as occupiers of two or more dwellings in respect of which housing benefit is being paid, thus leading to an element of double provision contrary to the apparent intention of the scheme.
    I would dismiss the appeal.
    LORD JUSTICE HENRY I also agree.
    Order: Appeal dismissed; order nisi against Legal Aid Fund with – –

    The Housing Benefit Regulations 2006 [SI 2006/213]
    Part 4 – Membership of a family
    This Version: 6 March 2006
    20. Circumstances in which a person is to be treated as responsible or not responsible for another

    (1) Subject to the following provisions of this regulation a person shall be treated as responsible for a child or young person who is normally living with him and this includes a child or young person to whom paragraph (3) of regulation 19 applies.
    (2) Where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, the child or young person shall be treated for the purposes of paragraph (1) as normally living with—
    (a) the person who is receiving child benefit in respect of him; or
    (b) if there is no such person—
    (i) where only one claim for child benefit has been made in respect of him, the person who made that claim, or
    (ii) in any other case the person who has the primary responsibility for him.
    (3) For the purposes of these Regulations a child or young person shall be the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.

    Limitations of Hockenjos
    Although a successful case, Hockenjos however only has a limited application.
    Firstly, it is only of direct application to JSA, as it is only JSA which Directive 79/7 applies to. Accordingly, if the benefit in question is income support, housing benefit or child tax credit then the argument would have to rely on the Human Rights Act (HRA).
    Secondly, it only applies to men, as it is only men as a class who are discriminated against by linking entitlement to the child additions to receipt of child benefit. Therefore Hockenjos has no application to women who are substantial minority carers and who have been denied payment of the child additions in their JSA. This is because as a class women are indirectly discriminated in favour of by the JSA child addition rules. This was decided in CJSA/2507/2005 and in any event is arguably correct.


    I agree Marchant still holds, because LHA still hinges on the number of people who “occupy” the dwelling. The Marchant principle, which has more recently been endorsed in another LRR case CH/2337/2008, is that whenever the Council is called upon to decide whether a person “occupies” a dwelling, HB Reg 7 should be applied to that person. HB Reg 7 is not just there to determine whether the claimant satisfies the threshold entitlement condition of occupying a dwelling – it applies in any case where anyone’s “occupation” is at issue.

    I also think that a Human Rights challenge along the lines that the claimant is arguing in your case has some mileage. There is a recent Upper Tribunal decision CTC/2608/2008 (under appeal to the Court of Appeal I understand) in which the Judge concluded that there is no Article 8 infringement in the similar Tax Credit rules, because one way or another there is money to feed the child – it doesn’t matter which parent acts as a conduit for that money, it is not really money for the parent’s personal use. The reasoning is not wholly convincing even in the CTC context, and I can very well understand how the losing party would want to take it to the Court of Appeal. But in HB there is a further, massive distinguishing factor: without the bedrooms, it is impossible to live a proper family life. I think this makes the human rights argument much more compelling in an HB case. Never mind who pays to feed the child, this is about whether the father is able to spend time with the child and be a parent at all. The discriminatory size criteria surely have a huge impact on the family.

    There are a number of HB cases waiting at the Upper Tribunal I understand, and I really do hope that this distinction between subsistence benefits and housing benefit is forcefully put. Whatever the CoA says in the tax credit case, HB is a different kettle of fish.

    But for now, the correct decision at LA level is to disallow the extra rooms in a Marchant stylee


    I mentioned on another thread that I have a similar case which went to TAS and is now currently stayed with several other cases relating to HRA/Hockenjos which went to the UT relating to HB. Although my case concerns applicable amounts and premiums it would also impact on LHA I would think. I was told by TAS that the lead case has gone to the High Court and when I contacted in May they said it would be at least 6 months for a decision.


    The appellant in my case is making a human rights challenge (Articles 8 and 14) against the decision to treat his children as not occupying his home as per Marchant and therefore base LHA on the one bedroom rate. He’s also arguing that Marchant doesn’t apply to LHA anyway. Bearing in mind the several relevant cases waiting to be heard, I guess it would be approriate to ask the Tribunal to stay proceedings. As I haven’t done that before, could I beg a bit of advice from the more experienced please? If I ask for a stay, then should I still send a full response? Sorry if it sounds dumb, but when you’re doing something for the first time ……..


    In the origional case of R V Swale Borough Council Housing Benefit Review Board ex parte Marchant there was an [b:e77e73bfa3]article 8[/b:e77e73bfa3] challenge but the origional Judge, Mr Justice Kay, decided that the Human Rights Act cannot be taken to impose this requirement on the state as “that would go far beyond “respect” for family life”.

    This argument was not taken up again at the court of appeal.

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