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Bedroom Tax - court order/custody of children
I have a service user she has court order granting her access to her 4 children from Friday evening to Sunday afternoon and 50% during the holidays. Based on the court order she was given 2 bed council house on the basis that she shares a room with her 3 daughters and son aged about 11 has his own room. She has been asked to pay the rent for the extra room.
I have put in an application for DHP.
Has anyone else got a case like this, and if so has there been any outcome?
Sounds reasonably similar to the liberty test cases:
Note that shared care cases have not done too well so far as benefit caselaw is concerned.
Note their case is not about getting a DHP - client presumably has good argument for this.
I have a client who is currently in a 2 bedroom property, she lives with her non dependent son, who will shortly be sentanced to a term in prison. As a prisoner but not the main tenant, will the client be exempt from paying bedroom tax for the extra bedroom when her son is not there, as her son will be classed as a prisoner. As I have been informed Prisoners are now exempt from bedroom tax. Is this all prisoners, or just the ones who hold the tenancies?
I think what you are probably getting at here is that anyone who is temporarily absent from home for any reason, including sentenced prisoners, is treated as continuing to occupy the home for up to 13 weeks if the absence is not likely to exceed that period. This applies to both the tenant and any non-dep. So he will count as an occupier if his expected return home is less than 13 weeks after his first day of absence, and if so there will be no bedroom tax deduction for the tenant.
Although the time limits will apply to non dependents for UC (at a standard rate of 26 weeks), the current 13 and 52 weeks do not apply to non dependents for HB. The question of where the home is is a question of fact There have been a number of test cases about students which say that if the student continues to return in vacations, has a lot of their stuff there etc then they are still occupying the place as their home.
They are still subject to the 13/52 week absence limits though. The classic case on this Swale ex p Marchant (which was concerned with LRR size criteria) and it has been cited with approval by the UT in LHA cases. The principle will carry across the the bedroom tax. The point of these cases is that when the Regs require the Council to decide whether someone “occupies” a dwelling (specifically that term “occupies” and others sharing the same stem) Reg 7 is applied from the perspective of that person whether s/he is the claimant, partner, dependant child or non-dep - the same temp absence rules affect all of them.
You start with the question whether this is, in the grand scheme of things, the person’s normal home (which is a case by case judgment for students and the like). If the answer is Yes, you then have to check whether they are still treated as occupying it under the same rules that would apply to the claimant.
So in the case of this non-dep prisoner, it seems safe enough to assume that his mother’s home is where he normally lives; however if he is absent from it for more than 13 weeks after sentencing he can no longer be treated as occupying it and he will not count as an occupier for bedroom tax.
I have client whose partner has left with the children; they are supposed to come and stay with him every weekend. What is the latest on children coming to stay over the weekend?
Should the affected claimants appeal, make DHP application or do both.
We still don’t have a decision that looks specifically at the Article 8 issues as regards the claimant’s ability to have any kind of family life at all when they cannot get HB for a home with space for the children. But as far as the means-testing aspects go, the precedents are piling up and they are not helpful to claimants in this position: whether it is CTC or additions to the HB applicable amount, the policy of channelling financial support for children through one parent is always found to be justified. I would not hold out much hope for the Article 8 argument succeeding, although it is a discrete point that can be distinguished from Humphreys and the other authorities that look only at the means-test.