When does a child stop being a member of the claimants family?

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  • #39886
    Andy Simpson
    Participant

    I’d appreciate your thoughts on the following.

    We have a LHA claim for a single parent and her three kids. The problem is that in February 2011 the father of the children abducted them and took them to the Middle East. The mother has custody awarded in the UK courts, the police and appropriate Government departments are aware of the situation and the mother is seeking the return of the children through the courts in the other country.

    The location of the children is known, the mum has visted them every month and a court hearing is to be held in December when she hopes the children will be allowed to return to the UK to live with her.

    When the situation first came to light at the start of the year the DM just decided that the children were ‘temporarily absent’ and set the claim back up. It has resurfaced following cancellation of mums DWP benefit when she was out of the country visiting the children. Child Benefit has been stopped.

    Looking at the regs/GM I can only find a referrence to including the children on the claim if they temporarily absent but no definition of what a temporary absence is for children. Obviously temporary absence is defined for claimants and for partners but do the same rules apply to kids?

    I guess my real question is, do we have to stop including the children on the claim at 52 weeks (i.e. Feb 2012) if they don’t return by then (or when it seems likely that they won’t return by then) in the same we would for other temporary absence cases?

    Obviously it is an appalling situation for our claimant to be in and we want to help her as much as we can but HB regs and fairness do not always (usually?) match up………….

    #113800
    Andy Thurman
    Keymaster

    HBR 21 (2) (b) gives a bit of scope here – not as clear cut as claimant temp absence conditions.

    “absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of his absence) and the absence is unlikely to be substantially more than 52 weeks”

    #113804
    Andy Simpson
    Participant

    Thanks Andy.

    I’m suffering from bad ‘man flu’ today so am probably not quite as coherent as I should be 🙂

    Basically, are we are limited by reg 21 to leaving the kids on the claim for 52 weeks – if they are not back at home at the end of week 52 the claim has to revert to that of a single person (and the real issue is the LHA rate dropping to the 1 bed or shared room rate).

    Is the 52 week limit absolute or could we continue to include them for longer than 52 weeks if we think it won’t be ‘substantially’ more than 52 weeks before they return (I know for claimant temporary absence the 52 week limit to pay HB is absolute (i.e we can’t continue to pay HB after 52 weeks) but it doesn’t seem to be quite so clear cut under reg 21).

    I’m thinking that reg 21 allows us to keep the kids on the claim for longer than 52 weeks if they will be back at home not too long after 52 weeks but is that right?

    #113822
    Kay_Tade
    Participant

    [quote=Andy Simpson]I’m thinking that reg 21 allows us to keep the kids on the claim for longer than 52 weeks if they will be back at home not too long after 52 weeks but is that right?[/quote] Well, that’s what it seems to say. It doesn’t specify a time limit exceeding 52 weeks other than “substantially”.

    Question is, what’s a “substantial” time that exceeds 52 weeks?

    #113875
    chris harvey
    Participant

    The wording of reg 21 is similar to that of reg 7(16) which covers temporary absence for the claimant and his family. I think the policy intention may have been to treat them in a similar way, but the wording is slightly different. The advice in the GM suggested up to 3 months over the 52 weeks may not be substantial, although I stress this is only guidance.
    I am aware for temporary absence most authorities stop benefit after 52 weeks even if the absence exceeds this timescale for a short period and there are special circumstances. The reason why they do that is due to 7(17) which limits the temporary absence to 52 weeks. Crucially there is no equivalent in reg 21 and for this reason I think you can continue to include them as dependants providing you think their period of absence is unlikely to exceed 52 weeks by a substantial margin. What you think is substantial really is down to you to decide.

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