I'm preparing an appeal for a client who has been refused the premiums and applicable amounts for children as she is not in receipt of Child Benefit.

My client previously lost the care of her two children to both fathers because of social services involvement relating to her problems with drug addiction. After a long struggle and great effort she has set up home, returned to work and basically made a fantastic success of recovery. Her one child resides with her for at least 4-5 days of each week and her son for 3-4 days. In recognition of this fact she has been awarded Tax Credits on the basis that she has the majority of care and residence.

The fact that her former partners still have some rights of care and that they have allowed both children to return to their mother has meant that me client has not attempted to claim the Child Benefit which she feels may "rock the boat" and cause the children's fathers to restrict her care.

Housing Benefits will not include these children on her claim and have stated that this is becuase she does not get Child Benefit.

I am currently looking at the following case

Hockenjos v Secretary of State for Work and Pensions <2004> EWCA Civ 1749 CJSA/4890/1998

But wondered if anyone has had similar problems that have resulted in some leads and any case law or advice for me in this matter

I am not sure that the Hockenjos case is what you need to look at in this case.

There are a number of situations where the parents have agreed for whatever reason that the father for example can continue to receive the Child Benefit, but that the children remain with the mother for most of the week.
Not being in receipt of Child benefit is not a good enough reason not to include a child in the household. Having said that it is the Local Authority who has to decide in these cases who has "primary responsibilty"

In your situation although the mother does not receive the Child Benefit it seems clear that she has Prime Responsibility for the children taking account of the amount of time they spend with her. Reg 20 does refer to who should be included and uses whoever is in receipt of Child Benefit as a guide to making the decision about whether to include a child or not. However it is not always that simple so para 2 (b) ii) refers to prime responsibilty. This is what you need to argue the case for your client.

I hope this helps and know have not been quoting the regs in a formal manner, however I have come across a few cases like this and we have made the decision in favour of the parent who has prime responsibilty even if they do not receive the Child benefit