Joint residency order

The relevant legislation is reg 20 of the Housing Benefit Regulations 2006 (& the CTB equivalent).

Child Benefit should only be used as the decider where either the time spent in each household is equal OR if there is a question as to which household the child lives in.  Otherwise, it’s a question as to which of the households the child “normally lives” in.  More often than not, it comes down to the amount of time spent in each household BUT, that shouldn’t be regarded literally.  It’s even conceivable that a child could be in each household on alternative weeks.  However, a child CANNOT be in more than one household during the same benefit week(s) (“benefit week” is Monday to Sunday for HB/CTB).

From memory, I’m pretty sure Hockenjos doesn’t apply to HB/CTB - there were some stayed cases at the old Cmmrs office but I can’t recall whether those have been decided.  If I get a moment, I’ll have a look to see if there is some relevant case law.

Thank you Kevin, I would appreciate that.

Feeling like we may not have a case. As the residency is joint with the idea being that the child spends equal time in each household. So I presume that they will just use the child benefit as the deciding factor. I think the tribunal will probably go with this as it is an easy decision for them.

Only argument I can think of, is that the child often chooses to stay with father more than mother. However I don’t think that LA will go for this as no evidence to prove it.

Shame if Hockenjos cannot be used. Also I believe that when assessing homelessness assistance LA are supposed to give consideration to joint residency issues (give priority to someone needing to be rehoused with a child even though the child also lives in another household as part of joint residency). I am not a housing expert though, and I can’t imagine that this can be applied to HB.

Cheers.

Unfortunately, Hockenjos is out as HB/CTB is not a benefit covered by the EC Directive relevant to the arguments in that case.

When I worked with Gingerbread Single Parent Helpline, this was a common problem that people used to call us about, and there aren’t really any easy answers.

The workings, and more importantly, the court orders as they impact upon separated families and their children, often seem to be at complete odds with what is written into the rules of entitlement for social security benefits and tax credits (and even between those two areas additionally).

Following my earlier post, I have identified a UTD decided in March this year where Hockenjos was considered in the context of being responsible for a child in relation to HB/CTB.  It’s CH/2236/2007 and the clmt was unsuccessful - arguments were effectively HRA & Hockenjos based.

NB:  CH/0173/2008 may also be of interest, but Hockenjos wasn’t raised.

There are still cases stayed at the Upper Tribunal on the issue of shared care and benefits.  They are waiting for the Supreme Court to hear the appeal against the Court of Appeal decision in Humpreys v Revenue and Customs.  I have a child tax credit case stayed and Humpreys is a CTC case.  However, the issues may well be equally applicable to HB.  I don’t know whether any of the stayed cases relate to HB.

Nedcab(!): you could ask for your appeal to be stayed pending the outcome of Humphreys.  If it would be helpful to discuss it with me let me know.

The arguments are Human Rights arguments using some of the same arguments as were successful in Hockenjos.  In the Court of Appeal judgement, at the outset, Lord Justic Richards said: ‘The legislation in issue in the present appeal supersedes in all material respects that which was considered in Hockenjos, but much of the argument has revolved around the judgements in Hockenjos and the extent to which the reasoning in them applies to the present case notwithstanding the differences between the schemes themselves and the legal context (it being common ground that the CTC provisions are not governed by EU law but fall to be considered by reference to the ECHR)’.

The Child Benefit question certainly determines whether a child is part of the Household for Hb purposes but I have been pondering the “Occupier” bit for LHa purposes.

Ch/1608/2009 and CH/3000/2009 looked at foster children and concluded they were “occupiers” for size criteria purposes. DWP changed the regs to make reg 21(3) exclude foster children as occupiers from 1/11/10.

The result of all of that must surely mean that a child could stuill be an occupier where they are a natural child (not fostered/placed for adoption) that isn’t also treated as part of the household?

In the cases you mention Julian, we had another case at the same UT hearing, involving a person with shared care of their own child (the ex partner had child benefit) - CH/247/2010. We accepted that if Regulation 13D did not create a self contained test (of “occupier”)  the appeal would fail (paragraph 19) and Judge Ward decided that indeed regulation 13D is not self contained, so regulations 7 and 20 applied to our client’s case. Consequently, she lost her appeal - her child (who she had for 50% of the time) could not be an “occupier” for the purposes of Regulation 13D. The UT decision includes all three cases (2 foster children cases and one shared care case). My recollection is that we got fairly short thrift on that point because the Judge clearly felt that the Upper Tribunal was bound by the decision in R v Swale BC ex parte Marchant

Brian