HB are correct in so far as they aren't including the child in the calculation of the applicable amount, because of Reg.20(2)(a), and I agree the route to contest this is to make a claim for CHB.
However if the dispute, or part of it, is about the rate of LHA allowed things may be different. Marchant (which wasn't significantly different on the facts) was decided on the basis that Reg.7 (which decides who is treated as occupying the house - and hence under old HB rules what size criteria applied on reference to the rent officer) effectively incorporates Reg.20(2)(a).
The CA in Marchant noted specifically that, in applying the size crtieria:
"Unfortunately the relevant provisions contain no definition of 'occupier' simpliciter"
Therefore, they said, Reg.7, incorporating Reg.20, decides.
However for LHA matters are different. There IS an explicit definition of 'occupiers' - in Reg.13D(12). It does not incorporate the concept of 'membership of a family' as Reg.7 does. Occupiers are people who occupy the dwelling as their home (except joint tenants). They don't even have to 'normally' occupy and there is no exclusion for people who have another home elsewhere.
So I reckon there is a good argument that the LHA size criteria can include shared care children even without CHB. Marchant can be distinguished because the legislation is different. There are counter arguments: for instance 'occupying as their home' rather implies a singular home, however decided upon. But I think it's worth a try.
Richard Atkinson
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