My client is man who shares care of his child with his ex. He is currently the recipient of the child benefit and is claiming other benefits as a single parent. He has care of the child for 3 days of the week - Sunday to Wednesday.

She has made a claim for child benefit and the IR have sent him a questionnaire to determine priority. I am concerned that the IR will base thier decision only the amount of time that the child spends with each parent, and that they might automatically prefer the mother - as woman. My client says (and apparently this is supported by social services) that she is not as able a mother as he is a fathter. The child is disabled and needs regular medical treatment, which she has often not provided.

I'd like to argue to the IR that for these purposes, 'responsibility' means the 'reponsibilities of parenthood' rather than a simple division of time. Does anyone have any experience of this? Does anyone have any knowledge or experience of JR cases against these decisions of the board, which are non-appealable in the usual way? Any other suggestions would be most welcome.

Interestingly and somewhat ironically, if my client loses at this stage, he would have to claim JSA, and could then (potentially) rely on the 'substantial minority carer' rule and the court's decision in Hockenjos to get the dependants benefits back. That said, as the decision in Hockenjos only involves JSA, my client would have a significant problem, as looking after a disabled two year old, he would be unable to satisfy the labour market conditions. What a mess!!

We had a potential JR of a decision of this type last year. Initially IR based their decision on the amount of time that the child spent with each parent, client had the child for about 48% of the time, and they awarded benefit to the other parent. After making representations they did look at other factors, but concluded that benefit should stay with the other parent.

We didn't proceed with the JR because Counsel's opinion was that we would not succeed. The final IR decision was very detailed and took into account every detail of what each parent took responsibility for.

On the basis of that, I'd think you have a good chance of getting them to look at issues beyond the simple division of time. My client was the mother and they decided in favour of the father, so I don't think that is likely to be a problem.

Thanks Keith,

Your case at least gives us some hope....