Not so sure about this. See the brief discussion at the end of this thread: http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=7568&mesg_id=7568&page=
The case that says LA's must follow 'membership of family' rules in deciding who is an occupier for the purpose of the size criteria,, (which rules in turn depend on CHB entitlement under Reg.20), is R -v- Swale BC ex p Marchant.
Marchant in the HC was erxplicitly decided on the basis that there was no definition of 'occupier' except that implied by what is now Reg.7, which links to Reg.20.
However for the LHA size criteria there is now an explicit definition of 'occupier' in Reg.13D(12). That definition is far from straightforward to apply - "persons whom the ...LA... is satisfied occupy as their home the dwelling ...in question...".
Certainly arguable that this doesn't allow a person to be occupiers of two homes (because it's all expressed in the singular) but, when occupation is genuinely 50:50, I think it is also arguable that the definition would allow the LA to choose which children to include as occupiers, irrespective of CHB entitlement. For instance accepting one of the two children as occupiers in the present case would allow both parents to get the 2-bed rate. This would fit with the apparent intention of the Family Court.
I am anything but confident about this but I do think 13D(12) means that the shared care problem can be at least re-visited under LHA and it would be worth trying these arguments in an appropriate case.
Of course the real answer here is to split the CHB, with dad refunding mum if need be; getting parents to agree is the problem.
Richard Atkinsoon
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