Hi

This is a weird one!

My client is separated from her husband and has a court order which states (amongst other things) that:
1: custody of their only child must be shared 50/50
2: neither side is to claim maintenance from the other or make any application to the CSA
3: both sides agree they will reveive 1/2 the child benefit and child tax credits and the recipient of these benefits will pay one half of the sum revceived to the other by way of standing order each month

CTC and CB are paid to my client as allowed by HMRC rules.

This order has repurcussions on my client as the CTC affects the amount of HB she is entitled to. My argument is that only 1/2 her CTC should count as her "income" as she has no choice in this and as the order prevents maintenance payments being made, this reduction should not be classed as maintenance payments. Of course CB no longer counts as income for HB puposes.

The real kicker in this is that her ex earns over £40k pa and so wouldn't qulaify for the amount of CTC actually being paid to him now!

However, I think I see probelms pursuading our local council about the actual income to be used for CTC purposes. The problem might lie in the words "both sides agree" in point 3.

Any ideas on what HB might make of this?

Cheers

Phil

As an HB person, I strongly suspect that the LAs view will be that the Tax Credit will be taken into account in full as there is no provision in the regs to disregard any part that they agree to give away.

On the plus side, that fact that your client gets the CB will, in a 50/50 custody split, mean the child is part of her household for HB purposes.

i'd be inclined to send her back to her family solicitor for a chat about the effects of this, which really they should have thought through first...one would have thought.

Hi

How old is the judgement? "custody" as a legal concept doesnt exist anymore. That wont change the actual position though. I assume that the judge meant a Shared Residence Order with equal parenting time.

She can appeal the judgment in her family case but it doesnt seem completely unreasonable to suggest sharing of state resources even if the short coming of the HB/CTC/CB/CSA systems demonstrates they are incapable of recognising that children have a right to 2 parents!

The judge didnt stipulate who should make these claims i assume?

What scope for DHP?

If i may play devils advocate......if the child was with her all the time surely her cost would be higher, so why would she need as much CTC as that of a full time carer?

There is a case due to be heard on 1/2 December (Humphreys) which i think is looking at the the whole issue of splitting claims to CTC (again). Surely at some point common sense has to prevail and thus the benefit sytem will be ammended to reflect the increasingly common reality of childrens lives?

http://www.osscsc.gov.uk/Decisions/casesPendingHigherCourts.htm


The only practical thing i can suggest apart from the DHP is to try to negotiate with the other parent- but i guess that by very fact that the thing went to court implies that the communication is not great?

What a conundrum!

Hi all and thanks for the replies!

Much of what you have all mentioned has already crossed my mind so at least I know that I'm not missing something!

The judgement is dated 5th May 2009 and it just states that it is an "order". Both parties are to approach the "Benefits Agency and ascertain what benefits are available and to whom and to share this information with each other.." (seems to demonstrate a complete lack of welfare benefits knowledge and buck-passing on the part of the judge!).

Trust me, there is absolutely no chance of the two parents negotiating anything!

I strongly suggested that my client return to her solicitor regarding the apparent unfairmess of the judgement but she seems reluctant to open old wounds which I do understand.

We've submitted the HB claim and will see what happens!

Yes I can imagine re the negotiation- it wouldnt have ended up in court otherwise!

I am not sure that the fam sol will be able to do anything as they wont be a WB specialist and the unfairness that is clearly evident is the in the relationship between her and the state. The judgement is concerned with the child and following on from that the realtionship between the two parents. I just cant see how she could appeal the fam decision on the basis that the the CTC/HB position is unfair. Its nothing to do with the relationship between the relationship with the two parents-its to do with failings in the benefit system. It would need people far more expert in benefit than me to comment - but is there not a challenge of the HB on the non diserguard at of at least some of the CTC for HB purposes on a Human rights/right to family life for the child issue?

Rich

Barring a successful legal challenge (cases at UT?), HB/CTB is not currently subject to "Hockenjos". In other words, in cases of "split households", HB/CTB is not payable for BOTH households in respect of the same person (child) for the same period.

So, howabout the distribution of CTC (or, indeed child benefit)? I am aware of one CD where child benefit was considered to be the income of the person to whom it was payable, irrespective of what was done with it - CIS/2317/2006. Whether there are other authorities and/or whether it can be distinguished, I don't know.

"(seems to demonstrate a complete lack of welfare benefits knowledge and buck-passing on the part of the judge!)"

a judge would be very unlikely to know anything at all on the subject, unless s/he had previously been a barrister instructed in such cases...

CIS/2317/2006 was disapproved in CIS/928/2009. UT Judge Howell there held, obiter but strongly, that 'receives' in the context of Reg.15, IS Regs (receipt of CHB a condition for being held responsible for a child) has its ordinnary natural meaning and, in a case where the father was the CHB claimant but handed all the money over to the IS claimant mother, the mother was 'receiving' CHB.

Extending the logic of that decision, the father in the present case 'receives' his half of the CTC, courtesy of the Court order. therefore presumably the mother doesn't. There is a problem perhaps in the wording of Reg.32, HB Regs which refers to the amounts paid but starts by reference to 'receiving' TC.

More remote on the facts, but providing another example of TC not counting as income, on first principles, is CIS/1813/2007.

So I would appeal any HB decision on the basis that only half the CTC paid to her is the mothers income, citing these two cases.

On the subject of bizarre Court orders we have one, again a 50:50 resdience order, where the Court stipulates that the father, who has all the income, shal claim the CHB. Mum gets CTC but HB take it into account and restrict the LHA because she doesn't get the CHB. That's going to UT at present, on the question of who is an occupier for LHA purposes.

Richard Atkinson

Richard

Good stuff. I can understand the logic -the higher earner claiming the CHB and lower earner claiming CTC- its the only possible way of sharing benefits in any way. The other decisions are interesting as this post is.


Have you seen this thread?

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=8296


In your case are both parent trying to claim LHA in respect of the same child?

I don't know if there are any family lawyers reading this forum, but I would have expected this to be a consent order, as such orders in matrimonial cases usually are. In other words, all that the court does is to rubber-stamp something that has been agreed between the parties after checking that this is what they really want.

Of course if there was an acrimonious and deeply-contested financial dispute between them and the judge has simply imposed his/her own decision on them, criticisms of the judge are in order. But what were the parties' legal advisors thinking of?

"and the judge has simply imposed his/her own decision on them, criticisms of the judge are in order"

It appears the judge is attempting to support the child by being able to meaningfully continue a proper parenting relationship with both parents. The issue is with the benefit sytem that is over 20 years behind. The provisions for making an Shared residence order have been there 20 years- yet despite numerous challenges and opportunities the issues havent been resolved. The benefit system actually create conflict as they generally only recognise one parent even though the child has two-hence cases above. I appreciate that this has caused difficulty for our client in this case- but i really believe that our issues should be targetted at the DWP and Govt and not the family courts and judges.

Sorry- rant over!


Rich

As it is a consent order and would take him to enforce it, we would advise her that she could simply not pay the amounts in the order and ask for a variation - however, this course of action should, obviously, only be undertaken with instruction from a family law solicitor.

Hi all

Well I would just like to thank you all for your help....there are some interesting points made especially those on the legal (welfare benefits) definition of "receives" which I think I might use when we get a decision!

I know that no judge can be an expert in all fields and I am not intending to be overly critical. However, because of this order my client is suffering a lower income which places financial pressure on her and her child when they are together. The father, on the other hand, is by any standards well-off and been given even more money. An individual should have the right to be treated fairly by any court - is this really the case here?

Whether this is the fault of solicitors or the judge is of no importance to me or my client, I am just trying to get the best for her and her child! My rant over!

Let's not turn this into a family vs sovial security law debate....they are both flawed in my opinion and at least it keeps most of us in jobs!

Cheers All!

"Whether this is the fault of solicitors or the judge is of no importance to me or my client, I am just trying to get the best for her and her child! My rant over!"

it is of relevance and importance to your client if it is the fault of the solicitors not advising her properly...as i understood it, family lawyers are expected to have a working knowledge of benefits so that they can advise their clients of the likely implications of any particular proposal on ancillary relief....

Thu 26-Nov-09 08:47 AM by rwilkinson

Hi phiso

Well yes- points well made. And the seriousness of the injustice is not that the she cant keep the tax credits- but that she gets treated as having the income that she doesnt have have HB purposes. Tis almost like a double jeopardy. Like you say it wil impact on the part of the childs time she will spend with her. On the other hand all the money is ultimately paid to one of the childs two households.

The family court is for the child not for her so there is no right for her to be treated fairly. The right is that of the child, and unfortunately childrens rights can conflict with what the parent wants.

Yeah you are right both fam law and soc security law are flawed in some way or the other- mainly because they seem to operate in isolation to eachother- its so maddening as it leaves thousands of children less able to maintain full parenting relationships with both parents. This is yet another example. I still disagree with your stament "However, because of this order my client is suffering a lower income which places financial pressure on her and her child when they are together" as i would strongly argue that its the WB system that is outdated, not fit for purpose in this area and not child focussed. The outcome is the same but i do think practictioners (time permitting in this sausage factory world) are excellently placed to be able to raise things based on people's real life experience to lobby for change. The court wouldnt have had to make this cumbersome (but i suspect well intentioned) ruiling if the Social Security system recognised the responsibilities of both parents like the fam courts increasingly do.

Hopefully the 'recieves' argument makes some progress and can be used in other similar circumstances. Please keep us posted as to what happens and good luck There are increasing numbers of Shared residence orders with 50:50 and I suspect we will increasing numbers of these very difficult situations

Rich