Benefits when a child is in prison

Hi all,

My client’s 16 year old son has recently gone into prison. He was attending school at the time he was taken into custody and will be there until at least October.

Am I right in thinking that CB entitlement continues for 8 weeks after he went into prison, and therefore he will be counted as a dependant child in the HB calcualtion for those 8 weeks?

However, CTCs will stop as soon as he goes into prison? (This is the impression I got from the info’ on p178 of CPAG 2015/16.)

Thanks

Is he sentenced or on remand?

He will be disaggregated from the applicable amount as soon as he is no longer a qualifying YP for Child benefit purposes, but for size criteria purposes he will continue to attract a bedroom for as long as he is treated as occupying the home under HB Reg 7.  If he is sentenced, unfortunately that will stop immediately because October is more than 13 weeks away; but if he is on remand he can be included as an occupier for up to 52 weeks.

The LA has said that the HB should have stopped as soon as the child went into prison.

I phoned HMRC and they said that CB claimants in this situation need to report the change of circumstances, at which point they will asked for information such as:

- whether the child is under 16
-whether they were in education when they went into prison
- whether they are likely to continue in education on release
-the nature of the crime

This information is then sent to a decision making team who decide at what point the CB payments should stop.

They also made reference to the four points in the year that claims are reviewed (March, June, September, December), although I didn’t understand how this would influence the decision.

So now I’m confused because HMRC are making it sound like a discretionary decision. The SSCBA 1992, says no CB for periods when a child is in prison, but the CB Regs then qualify this by saying that it is only from the 9th week (which is what the CPAG book says). But is para 1(b) a caveat for not paying CB during the first 8 weeks or a caveat for allowing payment from the 9th week onwards in certain circumstances? And para 2 presumably refers to whether the child can be treated as living with the claimant, because they clearly won’t actually be living with the claimant if they are in prison. I’ve pasted the section from the CB Regs below.

“Child or qualifying young persons in detention, care etc.

16.—(1) Paragraph 1 of Schedule 9 to SSCBA and paragraph 1 of Schedule 9 to SSCB(NI)A do not apply to disentitle a person to child benefit in respect of a child or qualifying young person for any week—

(a)unless that week is the 9th or a subsequent week in a series of consecutive weeks in which either of those paragraphs has applied to that child or qualifying young person; or .

(b)notwithstanding paragraph (a), if— .
(i)that week is one in which falls the first day in a period of seven consecutive days in which the child or qualifying young person lives with that person for at least a part of the first day and throughout the following six days; .
(ii)that week is one in which falls the first day in a period of seven consecutive days throughout which the child or qualifying young person lives with that person, being a period of seven consecutive days which immediately follows either a similar period of seven consecutive days or the period of seven consecutive days referred to in head (i) above; .
(iii)that week is one in which falls the day, or the first day in a period of less than seven consecutive days, throughout which the child or qualifying young person lives with that person, being a day or days which immediately follow the period of seven consecutive days referred to in head (i) above or a period of seven consecutive days referred to in head (ii), or .
(iv)as at that week that person establishes that he is a person with whom the child or qualifying young person ordinarily lives throughout at least one day in each week. .
This paragraph is subject to the following qualifications.

(2) For the purposes of paragraph (1), a person shall not be regarded as having a child or qualifying young person living with him throughout any day or week unless he actually has that child or qualifying young person living with him throughout that day or week. “

Schedule 9 of the Act doesn’t just apply to custody, it also applies to children in local authority care.  I think the exceptions in Reg 16(1)(b) are aimed more at children in care.  In most cases where a child/YP is detained in custody it looks to me as if Child Benefit simply stops after 8 weeks.

As for HB, I will emphasise again there are two quite separate issues here.  The first is aggregation for means-testing (this only matters if the claimant is not on a DWP means tested benefit): the HB applicable amount and earnings disregards will take account of the fact that the claimant has a dependant if that dependant is a QYP for Child Benefit purposes.  Actually there is an interesting point of statutory construction here: does the fact that the claimant is not entitled to Child Benefit for him after 8 weeks in prison mean that he is no longer a QYP?  That is not exactly how Schedule 9 and the Child Benefit Regs are drafted.  The way I read the CB Regs, the child remains a QYP if he is still undertaking a full time course (i.e. not dismissed from it or abandoned it).  If that is right, he would still be accounted for in the HB means test as long as he is expected to return to the household within 52 weeks: HB Reg 21(1).

The second issue is occupation of the dwelling for size criteria purposes (this only matters if the child’s presence in the dwelling makes a material difference to the HB claim, eg difference between bedroom tax applying or not applying).  If he is on remand, he remains an occupier as long as his return home is expected within 52 weeks.  If he has been sentenced, he remains an occupier if his return home is expected within 13 weeks.  In both cases, the 13/52 week period is measured from the start of his absence (not from the date of conviction or sentence).

I would ask the Council to provide an explanation of the reasons for their decision by reference to the regulations setting out why (i) he isn’t accounted fpor in the means test, and (ii) he isn’t allowed a bedroom (whichever is relevant).

And note that a “qualifying young person” remains so for up to 6 months if HMRC consider it reasonable - regulation 6 of the Child Benefit (General) Regulations, (longer if the interruption is attributable to illness or disability of the mind or body). For HB, we have seen cases where payment of, or entitlement to, CHB has been seen as paramount (and no shared care at issue), whereas the starting point is whether the 16+ year old is a “qualifying young person”, then look temporary absence provisions.

My view is that Para 1 of Schedule 9 prevents entitlement to CHB in respect of a qualifying young person, it does not serve to stop them being a qualifying young person. Regulation 6 of the Child Benefit (General) Regulations enables a person to remain a qualifying young person during periods of interruption. Regulation 21(1) and (2) of the HB Regs provides that the young person is to be treated as a member of the same household notwithstanding temporary absences up to (usually) 52 weeks. For CHB, I think the time in prison is an interruption of their undertaking education in pursuit of a course, because the definition of “full time education” at Reg 1 of the Child Benefit (General) Regluations makes no reference to abandoning or being dismissed from the course (which would apply to definitions at Reg 53 of HB Regs, for example, but not apply to a YP in non advanced education)

Yes that sounds right - explains why HMRC collect all that information about the circumstances: so they can judge whether to apply Reg 6.

So that would mean:

- no allowance for child in HB applicable amount after 8 weeks unless HMRC decides to treat him as still a QYP, in which case applicable amount still recognises him for max 52 weeks
- but as far as bedroom tax and LHA size criteria are concerned, he remains an occupier for up to 13/52 weeks depending whether sentenced or on remand and depending also on anticipated duration of absence

Client hasn’t had confirmation of the date that her CB will be stopped yet, but her tax credits are being stopped from the day that her son was taken into custody. He wasn’t sentenced for about a month after he was taken into custody, so I’m wondering whether the tax credits should have stopped from the sentencing date instead?

Reg 3 (1) rule 4.1 of the CTC Regs (Case C) says “Custodial Sentence”, so I was wondering if the period on remand should be excluded from this reg?

Not sure if this is relevant, but HMRC only found out that the son was in custody after he had been sentenced, so by the time they applied the change of circs’ the length of the son’s sentence was known (and it was more than the four months specified in Reg 3). Still not sure if they should have backdated the loss of CTCs entitlement to the date he was taken into custody or the date of sentencing…