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Child DLA
Good afternoon.
I understand the criteria for getting child DLA that you need to be caring and have a help need etc.
I have a client who lives with one parent but the other parent has the child 3 days per week. The relationship is not good and the person who has the least care needs to get taxis etc but the other parent does not give any of the benefit to this person.
I can’t find the answer but is there any way you can get DLA shared?
I would be grateful for any help.
I will preempt the answer as only one person can claim but cant give the client a definitive answer.
thank you
https://www.legislation.gov.uk/uksi/1987/1968/regulation/43
43.—(1) In any case where a claim for disability living allowance for a child is received by the Secretary of State, he shall, in accordance with the following provisions of this regulation, appoint a person to exercise, on behalf of that child, any right to which he may be entitled under the Social Security Act 1975 in connection with disability living allowance and to receive and deal on his behalf with any sums payable by way of that allowance.
Note reference to “a person”. Regulation goes on with more detail about who the person may be.
https://www.legislation.gov.uk/uksi/1987/1968/regulation/43
43.—(1) In any case where a claim for disability living allowance for a child is received by the Secretary of State, he shall, in accordance with the following provisions of this regulation, appoint a person to exercise, on behalf of that child, any right to which he may be entitled under the Social Security Act 1975 in connection with disability living allowance and to receive and deal on his behalf with any sums payable by way of that allowance.
Note reference to “a person”. Regulation goes on with more detail about who the person may be.
Well I don’t claim any experience or expertise on this particular issue but it does seem to me, looking at regulation 43, that there are a couple of arguments you could make to the DWP.
Reg 43(2) requires that the appointed person has to be a person with whom the child is living (43(2)(a) but the regulation seems to assume that a child only lives with one person and that person doesn’t change, which must have been an unrealistic assumption even in 1987. It doesn’t specify that the appointed person has to be the person with whom the child lives for the majority of the time. So you could argue for the reasons you’ve given that it would be in the child’s best interests for the DLA to be paid to the other parent. The regulation doesn’t have anything explicit about changing the appointed person but it must be possible, if only under the general revision and supersession powers.
Alternatively, reg 43(2)(d) allows the SoS to require the appointed person to give an undertaking as to the use, for the child’s benefit, of the allowance paid. So it seems to me that the DWP could require that person to make a payment to the other parent.
Finally you could cite section 9 of the interpretation Act 19878 which provides that in any Act of Parliament, unless the contrary intention appears, any word in the singular includes the plural ie “person” can be read as “persons”, so the payment could be split. I’d be more doubtful of this argument because arguably the regulation is written in such a way that the “contrary intention” does appear.
I imagine DWP will resist all of these arguments but they’ll hate the last one the most because of the administrative difficulty or impossibility of making as split payment.