HB and Separated Families…

There are a few “stayed” cases, as far as i’m aware, waiting for the outcome of Humphreys in the supreme court.

You “may” find this earlier thread of use.

http://www.rightsnet.org.uk/forums/viewthread/1596

Child Benefit is only used to decide who is responsible for a child in the rare circumstances where the child spends exactly equal amounts of time in different households..

Otherwise, it is a case of deciding where the child is “normally living”.

It is perfectly possible under HB regulations for a child to be normally living with someone who does not receive Child Benefit for them. This was confirmed again recently in one of the DWP bulletins to Local Authorities.

The question you are really raising is whether a child is “normally living” with someone that they spend 104 nights with. I suspect the answer will depend upon where they spend the rest of their time as well as a number of other factors. Child Benefit will not be a factor in your case for HB/CTB purposes.

FromG1/2011

5 HMRC have explained that receipt of CHB is not a guarantee that a child is living in the household. A person, including grandparents, can legitimately receive CHB if the child is living elsewhere but they pay for its upkeep.

6 Therefore, HMRC are concerned if CHB data is being used to determine the make-up of a household.

I don’t think Hockenjos is of any assistance.  Hockenjos was considered 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). HB is not covered by that directive.  There is an old decision that Family Credit (don’t remember the citation) was not covered by the Directive either.  By the same logic that would preclude CTC and CHB.

In my view, discrimination arguments would have to use the Human Rights Act in order to succeed.

The facts aren’t identical, but the issue of who had responsibility for a child was considered in LB Camden v NW & SoS DWP [2011] UKUT 262 (AAC) (aka CH/2236/2007).  In summary, Judge Powell concluded that no support could be derived from either EU Directive 79/7/EEC nor from Hockenjos.  Caution was also expressed in the context of discrimination arguments.

CH/2236/2007:  http://www.osscsc.gov.uk/Aspx/view.aspx?id=3286

Looks like the art. 14, art. 8 and art.1 arguments,  poss. read in conjunction with s. 6 HRA 1998, could be the best bet then.

Also I am pretty sure that ,unless it is dealt with obiter , Humphreys is as distinct from HB as Hocknjos due to the points mentioned in my original post.

What a messy little area.

Many thanks for the responses really useful.

Kevin - just had a read of that case, I think that judgement looks worthy of challenge, though it could cause problems in the interim.

It is a matter of interpretation and I think needs some mulling over in the CoA.

There are other cases where the basic issue of responsibility for a child has arisen but all are in different contexts.  They may or may not be relevant:

CH/3831/2007:  attached

CH/0173/2008:  attached

CFC/1537/1995:  http://www.rightsnet.org.uk/pdfs/cmmr_upload/cfc/cfc15371995.doc

Ryan Bradshaw - 07 September 2011 01:53 PM

Kevin - just had a read of that case, I think that judgement looks worthy of challenge, though it could cause problems in the interim.

It is a matter of interpretation and I think needs some mulling over in the CoA.

Does anyone know if there has been any further appeal lodged in this particular case - CH/2236/2007?