Help needed! UC decision

Cl has three children for whom she is main carer although her former husband claims the child benefit. They have separately acrimoniously and he is charged with stalking her and coercive control. Cl has been claiming UC since the split with the children included in her award. He took the children from her care in October. She went to court and a shared care order has been made from 16/12/23 with a phased return for the children to the family home where she lives from that date. The children are still with him and will not actually be with her for 50% of the time until 26/12/23. He has now made a claim for UC, including the children and UC has made a decision that she is no longer entitled to the child elements as she does not have main responsibility. I know child benefit is not determinative. She is the one who organises the children’s lives, school, clubs, GP, dentist, clothes etc.

Does she challenge the decision by MR from 26/12/23 when the 50/50 care starts and try to show that the children ‘normally’ live with her? Or should she do this now, although the children are not yet actually with her half the time? Date of decision 16/12/23. Should she make a claim for child benefit too?

All thoughts gratefully received. My last day in the office today…

Are the children currently living with her at all? If not, then she could still challenge the decision now, but she’d have to argue that they still ‘normally live’ with her (& did so at the date of the decision)  - assuming they’ve been absent from her home for less than 6 months, that sounds possible.

In addition if, before he took them, there was already a shared care situation, she’d also have to argue that she has main responsibility for all the reasons you say (organisation of the children’s lives etc).

An alternative/additional gambit is to ask for a supersession, ie adding the child elements back from the assessment period in which the children start living with her again (even if only for part of the time), but if she’s doing that & wants to protect her position with challenging the current decision she’d have to make it clear that she only wants to report this as a change (ie it is only an effective change when it comes to UC entitlement) if UC don’t revise the decision to remove the child elements from her award. I don’t think she needs to wait for 26.12.23 if there is an earlier date when the phased return starts (ie an earlier date the children start living with her for any amount of time), but maybe there isn’t. As this will be a shared care situation she’ll also need the main responsibility argument.

It seems to be one of those days for horrible things to happen just before the holidays! I don’t think she needs to claim CB & that could be a separate consideration either now (if children are not with her at all, not sure whether absence is temporary enough for CB, maybe not, so she might have to argue she is contributing at same level as CB or more, if applicable), or when the children return.

Thanks Will, I really appreciate that. She has been giving money to the former husband since he removed the children, to pay for their upkeep as he has not been doing so, in her opinion. Should she state this in her MR?
I am inclined to think she should report to UC when they have returned to live with her half the time whilst stating as you suggest that she is only reporting this as a change if UC don’t revise their decision to remove the child elements.