I would be grateful if anyone could provide me with thoughts, advice, etc for my client in the following situation.

The client is single parent with current entitlement to HB (assessed under LHA rules as private tenant). She works part time and is getting WTC, CTC but her former partner retains entitlement to Child Benefit (this wasn't a voluntary agreement between the parties, he simply refuses to let the client claim the benefit, he cant get WTC or CTC as his income too high).

Both my client and her former partner have equal access/residence of their one child. He is male and aged 11. The residence arrangements are as follows, one week my client has son living with her from Monday to Monday and then following week the child's father has him from Monday to Monday.

My client's LA are refusing to include the child in her HB calculation (i.e. his details aren't included in the applicable amount calculation) and furthermore they are also refusing to use his presence there in her LHA calculation i.e. they are paying her on a single person self contained rate and not 2 bedroom rate.

I have yet to receive full reasons from the council as to what they are basing their decision on. They have told my client that they can't include her son because "you are not getting Child Benefit for him". They are of course including her CTC entitlement when doing the HB calculation.

My initial thoughts are HB is a weekly benefit and surely they can include son for purposes of HB/LHA for the week he is there (yes I know from an admi point of view this might be difficult but that's no ground to refuse to do this).

I think the case differs from Marchant as quite clearly she has son for half the year, she isn't a parent with limited contact/residence.

Anything anyone can add, your thoughts please about proceeding, etc. Thanks in advance

It is possible for a child to be the responsibility of one parent one week and the other parent the next. Reg 20(3)

The LAs decision will have been made under Reg 20 (2)(a) which says where a child spends equal amounts of time in different households then child benefit is the deciding factor.

Based on the info given, the LA appears to be correct.

Where a child / young person spends equal time in different households, HBR 20(2) provides that child benefit is the "tie-breaker".

Further, for HB/CTB purposes, a child can only be the responsibility of one person in any single benefit week.

I suppose you could try a "Hockenjos" argument, but the DWP remains of the view that HB & CTB do not fall within the type of benefits to which Hockenjos applies - a EU Directive is relied on by the DWP, but the reference escapes for now.

There are, so I've heard, a number of cases currently before the Upper Tribunal where the "Hockenjos" argument has been made in relation to HB/CTB. To date, I'm not aware of the outcome of these cases.

Hockenjos was concerned with discrimination under EC Directive 79/9 which provides protection against sickness, invalidity, old age, accidents at work, occupational diseases or unemployment (article 3 of the Directive). It would be difficult to see how HB would be covered by the directive.

Thanks for everyone's prompt replies. It would appear therefore that the best course of action would be for my client to make a claim for Child Benefit and then let HMRC decide to who the benefit can be claimed. If she can get CB in payment the her son can be included in any future claims.

This would have been my approach. However she does need to know that contested Child Benefit cases can have very long decision times. And I mean very.

I had one such case many moons ago in which the Mother was successful in getting the child benefit instead of the Father.

We did have to go to Tribunal and i remember that the Tribunal awarded to the Mother due to the difficulties with the Housing Benefit and the fact that the Father had too much income in order to claim any benefits.

In effect they decided that the Father needed the child benefit less than the Mother - this also seems to be the same in this case.

It may be worth highlighting the problems with the housing benefit and so the importance of the child benefit being paid to the Mother on the initial claim form.

Nicky

HB are correct in so far as they aren't including the child in the calculation of the applicable amount, because of Reg.20(2)(a), and I agree the route to contest this is to make a claim for CHB.

However if the dispute, or part of it, is about the rate of LHA allowed things may be different. Marchant (which wasn't significantly different on the facts) was decided on the basis that Reg.7 (which decides who is treated as occupying the house - and hence under old HB rules what size criteria applied on reference to the rent officer) effectively incorporates Reg.20(2)(a).

The CA in Marchant noted specifically that, in applying the size crtieria:

"Unfortunately the relevant provisions contain no definition of 'occupier' simpliciter"

Therefore, they said, Reg.7, incorporating Reg.20, decides.

However for LHA matters are different. There IS an explicit definition of 'occupiers' - in Reg.13D(12). It does not incorporate the concept of 'membership of a family' as Reg.7 does. Occupiers are people who occupy the dwelling as their home (except joint tenants). They don't even have to 'normally' occupy and there is no exclusion for people who have another home elsewhere.

So I reckon there is a good argument that the LHA size criteria can include shared care children even without CHB. Marchant can be distinguished because the legislation is different. There are counter arguments: for instance 'occupying as their home' rather implies a singular home, however decided upon. But I think it's worth a try.

Richard Atkinson