Hi all you helpful and knowledgable folks out there,

My client got custody of his daughter early in 2010. Applied for child ben and IS as a lone parent but has not been paid either yet.

IS won't pay his claim until child benefit confirm he has been awarded this - but there is a delay with them as his case is with the completing claims section to investigate whether the child's mum has given up her claim. We have been told this will take up to 16 weeks and in the meantime the section will not speak to us or take phone calls, nor will they speak to the IS bods apparantly.

He has managed to get CTC paid, so I have tried to argue that IS could take that as proof that he has primary responsibility for his daughter but no joy. My reading of reg 15 is that they should only look at the child benefit situation in cases when there is a question over primary responsibility. She does not see her mother at all now so there does not appear to be a question about this...or have I misunderstood the regulation?

Any suggestions as to how to progress this quicker would be great, as he is getting desperate and has already had several crisis loans.

The CB should be suspended if HMRC are investigating competing claims, in wich case nobody is "receiving" it. I would argue that your client is responsible for the child under IS reg 15(2)(a) and use the custody order as evidence that the child lives with him.

Hi Brian, thanks for your reply, I actually tried that reg 15 (2) (a) argument already but didn't get anywhere! I will check if there is a custody order though, and try again armed with this of so.

I have had this problem twice in the past year, and twice three years ago. If the DWP won't take proper account of the IS regs, which describe three ways they can use to determine who is responsible for a child, I issue notice that I will seek judicial review on the basis that they have acted with 'Wednesbury unreasonableness' in refusing to take account of evidence (other than the child benefit claim) of who the child normally lives with, and in refusing to make a decision on a valid benefit claim. The notice should be sent to the DWP's litigation department in London: New Court, 48 Carey Street, London WC2A 2LS, fax number 0207 412 1523. With a copy to the local office. Specify what you want them to do, ie, process the claimant's IS claim and pay their entitlement forthwith, including any backdated amount. The last time I had to do this, the client was paid about £4,000 backdated IS 'forthwith' and £100 compensation by way of apology for the DWP's maladministration.

The use of the "child benefit not in payment" provisions in Reg 15 do depend on HMRC having suspended payment. If for whatever reason it is still in payment to the mother, say because HMRC is dragging its feet, there is a real problem.