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Top Other benefits topic #2336

Subject: "Child Benefit - Child in spain - Parent in UK" First topic | Last topic
johnwilson
                              

Benefits and Appeals, Dumfries and Galloway Citizens Advice Service
Member since
06th Feb 2008

Child Benefit - Child in spain - Parent in UK
Tue 08-Dec-09 02:45 PM

Parents returned to UK after many years in Spain. Child still in Spain to complete her secondary education, another 6 months, and staying in lodgings.

Client now habitually resident and claiming income based JSA.

Client was disallowed Child Benefit because child cannot be treated as being resident in UK.

I have had a look at EC regulations, chapter 7, articles 72, 73, 74, 75, 76, but can't see any help there.

Do any of our resident legislation experts on here have any thoughts on this? I suspect there is no where to turn though.

  

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Replies to this topic
RE: Child Benefit - Child in spain - Parent in UK, nevip, 08th Dec 2009, #1
RE: Child Benefit - Child in spain - Parent in UK, johnwilson, 09th Dec 2009, #2

nevip
                              

welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004

RE: Child Benefit - Child in spain - Parent in UK
Tue 08-Dec-09 03:54 PM

Tue 08-Dec-09 03:55 PM by nevip

The regulation that might be most helpful in domestic law is regulation 21(1)(b)(i) of The Child Benefit (General) Regulations 2006 which states that CB can be payable for a child in full time education in another EEA state and treats the child as in great Britain if he is temporarily absent from GB.

Everything, therefore, turns on the phrase “temporarily absent from GB”. This calls for creative argument. I would argue along the following lines. The parents have set up permanent home in GB and are ordinarily resident there. The child is normally part of that household and would be in GB now as part of that household but for finishing her education. Thus as her return has been merely delayed the absence from GB is only temporary in spite of the fact that she might have been out of the country for many years. In other words her absence NOW is only temporary because of her education.

If you think that that stretches, somewhat, the concept of temporary absence there is a parallel. Have a look at R(HB)9/05 where the commissioner decided that the claimant intended to “return” to the flat even though she had never actually been there. Although that case was very fact specific it goes to show that words can be very adaptable should the situation warrant?

I don’t think that the regulation bears arguments that equate the concept of temporary absence with length of absence in relation to habitual residence type arguments for claimants, as the different regulations are trying to achieve different things. The CB Regulation is concerned with children being temporarily apart from a parent and thus still being part of the household (as in Income Support legislation) and supported by other members of that household, whereas HRT regulations are concerned with the settled residence of the claimant and were enacted to discourage “benefit tourism”.

The above argument is in a rough and ready form at the moment and it should look a lot more cogent and coherent after I would have applied the appropriate amount of polishing and editing. But, it is a start.


  

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johnwilson
                              

Benefits and Appeals, Dumfries and Galloway Citizens Advice Service
Member since
06th Feb 2008

RE: Child Benefit - Child in spain - Parent in UK
Wed 09-Dec-09 09:50 AM

Wow! Thanks mate. I'd missed that CB reg. I like it though; I love going along to the tribunals with something off on a tangent and argumentative, and the way your mind works will certainly get them thinking, and maybe tie them in knots!!

I'm off to get my client to lodge an appeal now.

John

  

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Top Other benefits topic #2336First topic | Last topic