Anyone any ideas for a mother of a young child who finds herself in an impossible situation? She has the child from midday Monday to 7pm Thursday. Her ex has successfully got the child benefit reassigned to him, because he has the child four nights a week and she only has three. She’s expecting a similar challenge to the Child Tax Credit claim. She’s in the process of claiming income support on incapacity grounds – if it fails she won’t have any income because she can’t meet the availability for work conditions for JSA.

Her solicitor is trying to negotiate some sort of arrangement with the father, and there’s still a custody battle going through the courts. There’s no provision for splitting benefits and challenges such as Hockenjos and Stec have been on sex discrimination grounds so only potentially benefited men. I’m at a loss to know how to advise – I know CTC could reach a different conclusion to child benefit but would like to see some caselaw or arguments to support her keeping the claim (she argues that she incurs more cost because she has the child more time during the day). Any ideas or thoughts at all would be appreciated.

I think you need to look at who has the main responsibility for the child, ie, as well as where the child spends the majority of the time, the TCO would also look at things like where the child keeps most of their belongings, who has responsibility for health care, who is the named contact at the school, which parent buys most of the food, clothing and so on. HMRC call it the "main responsibility test" - there might be some mileage in it.

This may well be tricky. The main responsibility test only triggers if there is (i) more than one claimant who satisfies the 'normally living with' test, and (ii) there is a competing claim. Looks like both criteria are satisfied in this case.

CB entitlement should not be used, in my view, as a 'decider' in borderline cases, because of the different CB and CTC criteria. It could be possible that the other parent gets CB, but only because they maintain the child to at least the value of the CB, even if the child normally lives 'elsewhere'. You can't do this with CTC, so there are some scenarios where one claimant gets CB, and the other CTC.

Here is the link from the guidance about main responsibility:

http://www.hmrc.gov.uk/manuals/ntcmanual/eligibility_ctc/ntc0270080.htm

I think all you can do is argue the criteria where you can. In very evenly run cases, the Revenue say they will award the CTC to the claimant who stands to gain the most CTC. Where would your client come out on that criteria?

Steve

Thanks to both of you. There is some useful stuff in the guidance.

Cold comfort it may be but just to clarify on the availability conditions for JSA - ch.17, p.101 of 32nd DRH notes that if you care for a child under 16 years (amongst others), then you may restrict the hours available to less than 40 hours but not less than 16 hours per week. You must be available for as many hours, and at the times that your caring responsibilities allow, taking into account the times you spend caring, whether the care is shared, as well as the age and physical/mental condition of the person being cared for.

Thus, the 16 hour minimum could be satisfied, for eg, by 7 hours availability on Friday and Saturday and then a couple on Sunday - i accept that this is unlikely to produce a realistic chance of securing work but it does demonstrate that it is possible to come up with a viable solution to the "no-income" problem if all else fails.

I also acknowledge completely that this is far from being an ideal solution to your client's problem, and I hope that you are able to help sort out some alternative but it is important to be aware that this provision does exist. Might be worth giving CPAG a call as they were looking for test cases on similar facts and they may be able to offer more advice on this issue?

what about this case: CTC 4390 2004

here: http://www.osscsc.gov.uk/judgmentfiles/j1951/CTC%204390%202004.doc

not that i was looking for this, i was trying to find somethign completely different, but remembered this thread...

Tricky, there would appear to be a remarkably close level of care here.

If it were my case I'd want to know why no interim residence order had been applied for or granted. What you potentially have here is a case where the the mother is going to be trying to support herself & a child on her single persons benefit for 50% of the week. There's just not enough money in single persons IS to pay for the upkeep of a child as well. The issue of the CTC then becomes a child welfare issue & to the best of my knowledge the Solicitor can apply for an interim order, pending the full custody hearing on this basis.

That then decides the issue. The experts at the family court (who are trained & experienced) make the decision on who will have majority care. You then have a court order & unless it's a leap year, you automatically have one party or the other who has, legally, the substantive care.

At the end of the day the best interests of the child (which is surely got to be the primary issue here) is what the courts look at & are trained to assess.

It may turn out that it is decided, in your case, is that the Father gets the majority care & from there the bulk of the benefits but that'll be an issue for her family law solicitor to argue. If they can show that the Mother NEEDS the CTC to provide for the child when she has care & the father doesn't - an order can be argued for that reflects this (commissioner Williams in a recent rulling suggested that CTC should, in this type of case, go to the parent that needs it most & this should be the argument pushed at the family court as an issue for main residence). After all, the courts are one of the few bodies that have a right to expect disclosier of income that is needed to assess this.

The Bottom line here is that this type of wrangle has been going on for a very long time, is often based more around spite & acrimony than the good of the child. The Tax office, like the CSA, is just not equiped or competent, to deal with this type of tangled personal issue.

Get the interim order (which will be made in the best interests of the child) & have the benefits following from there. It will just be important that the order does give clear primary care to one party or the other & that it is made clear that this order may be the deciding issue for Tax credit awards etc.

I assume that in your case the current custody agreement is based upon an inerim order (which would be problematic) because if not, why doesn't your young Mum just change the pattern of care pending such a hearing & not let him have the child 'till Friday morning? Problem solved?

If the current situation is based on an interim custody/visitation order - then there's not much that can be done. Whilst the full Custody battle is pending, could it not be agreed that the "richer parent" claims CB & the poorer claims CTC? If either party refuses this, that should be a telling point at the pending Custody hearing as it may be indicative of Childish post seperation wrangling or financial greed, rather than an adult decision for the sake of the child.

Also, has the Father in this case just had very good (but nasty) CSA advice from a trained adviser. It could be that he only wants CB to avoid CSA. If this is the case, would he not then be happy to come to an agreement whereby he gets CB & she gets CTC. After all, she's not really going to have to pay CSA as she's on IS & (if he does care about his child) she'll have money to provide for the instances she has care.