Terms & Conditions

[Anonymous]

Would you include children on a referral if the claimant or partner was not, for whatever reason, in receipt of child benefit for them? (I don’t mean foster children)

This has caused some debate in the office. Some would include the children, some wouldn’t. This is hypothetical, I don’t have an actual case.

[gerryg]

There is no requirement for the parent/partner to be getting Child Benefit for a child in order for them to be treated as being responsible for them under Reg 20(1).

Reg 20(2) comes into play where the child spends time at different properties and under this reg they are deemed to live with the person who gets the Child Benefit.

So my answer is “yes”, if the child normally resides there then I would put them on the referral.

For example, when a child is born (it is nearly Christmas after all) and there is a size related rent would you really wait until the Child Benefit was awarded until you treated it as a relevant change of circs and sought a new ROD? Then again you may do if you want proof that the child exists.

If they spend time at more than one property (e.g. separated parents) then I would go for the one with the Child Benefit and only include the child on any referral for that address.

Does someone want to throw in Hockenjos now?

[Anonymous]

I have an appeal from a single father. His 12 yo son stays with him on alternative weekends and one night a week. He does not receive Child Benefit.

The son was left off the RO referral and as a result the maximum rent has been restricted on a size related determination.

Can anyone provide a link to relevent CD’s

Why is Hockenjos relevant? is their a link? :15:

[Darren W]

Hockenjos was a JSA appeal where the parents had separated and the children spent time with both parents. It was decided that both parents could have the child element of JSA. Do not have a link, but it was my understanding that it was not binding on HB.

[Anonymous]

Its now reported as R(JSA)1/05.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2004/1749.html&query=Hockenjos&method=all

My understanding is that it is not be binding for IS because the lIS egisalation is different, but may well be binding for HB, although Hockenjos does conflict to some extent with the judgement in the HB case Marchant and Swale.

The HB legislation linking entitlment to child benefit is more similar to the JSA legislation than it is to the IS legislation

[Kevin D]

stuartm:

Relevant case law is [b:d1e98d0bfd]R v Swale BC HBRB ex parte Marchant (1998)[/b:d1e98d0bfd].

new.hbinfo.org.com/menu2/caselaw/marchant.shtml

In short, I’d be confident of arguing that the son is not an occupier for R/O purposes.

Regards

[Stalbansbenefits]

Kevin is spot on.

Of course, you could always offer him a DHP to top up his benefit and perhaps he would withdraw his appeal.

[Anonymous]

Having now read the Hockenjos ruling which came after the Merchant case I am not convinced that Kevin is on sound ground.
Whilst it would appear that the approach he recomends may appear to be correct the cases subsequently have re-inforced Hockenjos.

The issue of occupancy is decidd by the issue of responsibility for the child. Up to Hockenjos who received child benefit was the determining factor. What Hockenjos does is says that is discriminatory towards men and is therefore incompatible with community law. The DWP has accepted that decision and is gradually changing the IS and JSA rules accordingly.

However, the HB occupancy regs (reg 7(1) has not been challenged.
Circular G2/2005 indicated that the Department was considering its position.
Does anybody know if the DWP have clarified its position?

[Kevin D]

Stuart:

The occupier rules under HBR 7 are not the full test for an R/O referral. The Rent Officer (Housing Benefit Functions) Order also needs to be considered, as do HBRs 20 & 21.

I’m not convinced Hockenjos extends to HB in the context of occupiers for R/O referrals (although, I’d readily accept it is an argument that needs to be sorted once and for all). “Occupier” for the purpose of either HBR 7, or the R/O Order, is not dependant on child benefit. A child can be part of the household irrespective of Child Ben.

The notes in Findlay are well worth a read. As an aside, Marchant was upheld in the Court of Appeal. If it transpires that Hockenjos does in fact affect all things shareable (is that a word?), I can see some very quick changes to the law being brought in….. In the meantime, its so nice of the DWP to leave LAs hanging in the usual quagmire of no mans land.

As things stand, I’d (just) be happy to argue Marchant over Hockenjos in the context of R/O referral.

Regards

[Anonymous]

There are two reasons why Hockenjos is not directly relevant to HB:

First, it is concerned with EU anti-discrimination legislation in the area of unemployment protection. HB does not fall under that umbrella, JSA does.

Second, the link between Child Benefit and extra benefit was stronger in the pre-tax credit JSA scheme than it is in HB. In HB, Child Benefit is a tie-breaker for those tricky cases where you cannot say for certain which home the child lives in. In JSA, Child Benefit pretty much determined who got the allowance for the child.

Nevertheless, Hockenjos seems to be a strong case in the HB context. In particular, the discrimination issue crops up in human rights law, so as long as you can get HB into the human rights arena to kick off with (Article 8 – respect for family life – is usually accepted by the courts unless they got out of bed the wrong side) the same arguments that carried the day in Hockenjos could well swing an HB case. Kevin is right to see the distinction between the narrow point of law in Hockenjos (Reliance on Child Benefit discriminates against men) and the RO functions where Child Benefit is not mentioned at all. But I think one almost inevitable flows from the other, and it would be very strange to award child additions in the applicable amount but refer the rent as if there were no children.

And remember, when it comes to RO referrals, YOU decide who is or is not an occupier. Don’t stand for any lip from the Rent Officer.

[John Boxall]

Funnily enough I have a similar appeal going on right now.

Both parents are claiming HB from my authority & the mother, who has the Child Benefit is under 25.

If I uphold the father’s appeal then the mother will just get HB based on the single room rent, rather than the full rent on the private flat she is currently occupying.

Reg 20 says that a child can only be on one claim in any benefit week so as far as I can see either one partner will start to get stroppy over contact, or I will be ‘pig in the middle’ in a Tribunal hearing which the mother will have to be asked to join.

I’m currently awaiting a response from my apellant, the father………..

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

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