Hi
I have a client who is Pakistani national married to a British citizen. She has a two year visa, which is subject to no recourse to public funds. Her child is a British citizen.
She's recently separated from her husband, cannot claim child benefit or child tax credit due to her limited status.
She lives with a cousin and wants to know if it would be fine for her cousin to make the benefit claims as the cousin has no immigration restrictions. The cousin is currently maintaining and supporting the client and child as she has no income or savings.

I've checked CPAG which states,
You count as responsible for a child in any week in which:-
* You have the child living with you, or
* You contribute to the costs of providing for the child.
Therefore, accordingly to this she could legitimately apply.

Am I missing something as this feels to wide and open to anyone within the household who's 16 and over to apply for benefit for a child.

Please help or confirm i am on the right lines.

Thanks

1. Your client can in fact claim the Child Benefit herself- she is the family member of an EU national (ie the family member of her child who is British)- therefore under Para 1 of Part II to the Schedule to the Social Security (Immigration and Asylum) consequential Amendments Regs 2000 she is not excluded from entitlement to Child Benefit despite being a person subject to immigration control.

2. The Immigration Rules provide that someone entitled to benefit under the above regulation does not count as having recourse to public funds. See the link here: http://www.rightsnet.org.uk/cgi-bin/sub_client/search.cgi?template2=news/user_details2.htm&output_number=1&news.ID=33161127800


3. Unfortunately, not clear whether your client could get the CTC so it may be best to go down the route you describe- I think what you say is correct.

Martin

I'm not 100% convinced of the "family member" point: Article 2 of directive 2004/38/EC which is the free movement directive defines "family member" to mean spouse, civil partner, direct descendants under 21 or dependent, and dependent direct relatives in the ascending line. Normally definitions eg of workers, family members etc follow the EC law rules. I haven't got the full text of the 2004 regs so there may be some definitions in there - it's fairly unusual for there not to be. Obviously she can't be the dependent of the child. I'd be interested to know if there is anything in the regs to provide an alternative definition.

Mind you, this may be from the wonderful people who refused to write a definition of "right to reside" into the law. And look where that's got them.

I can see the 2 sides here although I have not convinced CTC will be due. Presumably any claim for the CTC will have to be made by who has primary responsibility for the child i.e. here the mother. If that person cannot claim this could prevent another claiming ( or would it ?). I think the problem with this is it could be too open to abuse although I have never encountered it. It may be seen if the cousin claims the mother has effectively relinquished the responsibility for the child which is something she would not in normal circumstances.
On balance if I came across this I would reject it although not lightly.

Hi,
Thank you for your response.
Could I be bold and ask you on what grounds you would turn the claim down. Could you guide me on which regulation you would be looking at to refuse?

I would advise that the cousin should claim both the CB and CTC and see what happens.

They have nothing to lose by doing this and everything to gain.

If there are any refusals etc you can cross that bridge when you come to it.

I can't follow CCO's argument. How can the mother have primary responsibility for the child if she has no money to use to care for the child? Whatever happens on CHB, it is not a requirement of CTC that the person claiming is getting CHB. Should the decision on CTC not be made on the basis of the facts of the particular case? - i.e. in this case, the fact that the cousin is providing the primary care by having the child living with her and using her own money for the child's needs.

Child Tax Credit has to be paid to who has main responsibility for the child under Tax Credits (Payments by the Board) Regulations 2002 Regulation 4. You will not find the definition of this meaning in legislation or regulations therefore the phrase is interpreted in the normal everyday meaning. What you are arguing is a child and mother live together but the mother has not the main responsibility. If the cousin can financially support the child then she can give the money to the mother. Using your argument then the mother then becomes the main carer but she still cannot claim. Therefore they then claim the cousin who can claim becomes the main carer to get the CTC. This is why I think it will fail because it will become too open to abuse.
The main carer is who is normally responsible for the child and surely that in this case has to be the mother. There has to be more to not being a main carer than not having any money.
I believe I am correct in saying in issues such as interpreting legislation - regulations - contracts it is the overall intention what is significant and not necessarily focusing on individual phrases or words. This is an opinion - I am not saying it is the final answer.

Please see the further reply. I dont`t claim this is the final answer as I am only stating how I would interpret the rules - I suppose it all depends on "main carer". I obviously cannot tell you how to proceed - so if I could leave it with you or if you could take further advice.

I appreciate these cases are not straightforward, which is why I suggested it needs to be based on the facts of the specific case.

It is not directly analogous, but I had a case where the mother was a 15 year old (who consequently couldn't claim). She & the baby were living with the baby's grandmother and I was advised by the Helpline that there should be no problem with the grandmother claiming. Using your reasoning the grandmother could have given money to the mother for the baby's expenses.

I think this just illustrates how difficult these cases can be.

I agree, these are extremely difficult cases and the decision can only be based on the facts of the particular case.
Applying a literal interpretation of the law, there could be a case for possible entitlement.

This may well have been the reasons why certain regulations don't specify and catagorily define the persons entitled to claim, allowing a broader interpretation to alleviate poverty for families with children.

I know this thread is getting a bit old, but there's more scope here I feel.

CCO says "Child Tax Credit has to be paid to who has main responsibility for the child under Tax Credits (Payments by the Board) Regulations 2002 Regulation 4. You will not find the definition of this meaning in legislation or regulations therefore the phrase is interpreted in the normal everyday meaning."

This is the wrong test for question of whether or not the cousin can claim (it is also the wrong regulation). It is not a question of to whom the credit should be paid, but rather about the circumstances in which someone is, or is not, responsible for a child, which contrary to CCO's post, is in fact defined in the regulations.

S. 8(1) of the TCA provides entitlement to CTC to someone who is 'responsible for a child'. S. 8(2) defers to regs the circumstances in which someone is defined as responsible for a child.

Reg 3 CTC regs contains the definition in four rules. The first of which introduces, subject to rules 2 to 4, the "normally living with" test. So, a person with whom the child normally lives has main responsibility.

The remaining rules deal with conflicting claims from claimants in the same or in different households. For a discussion of these rules and their implications refer to the legislation volumes - Vol IV, pages 448-453.

From my reading, I see no reason why the Mother shouldn't allow the child to move to the cousin's household. The child will then be normally living with the cousin who will then be able to make a claim. CCO, in the earlier post, suggests that this will be frowned upon, but I can't see anything that could prevent it - and the annotation to the reg doesn't flag anything up either. I don't believe though that courts will go along with merely 'saying' the child normally lives with the cousin. I think the child will actually have to move households for this to be safe.

I mentioned earlier that CCO had quoted the wrong regulation. Not being particularly drawn to tax credits cases, I could have this wrong, but as far as I can tell the Tax Credits (payment by the board) regulations 2002 became the Tax Credits (payment by the commissioners) regulations 2002 on 29/08/05 and regulation 4 concerns payment of WTC, excluding childcare element, to members of a couple. It is regulation 3 that concerns payment of CTC and the test there is that CTC (and WTC child care element) is paid to the member of a couple identified as "the main carer" (which doesn't appear to be defined), a substantially different test than that of "main responsibility". Furthermore, in this case, unless the cousin is a member of a couple, "the main carer" test doesn't apply, and if it does it is in a context not required by the original question.

It would be interesting to know how this case turns out.

Hi
I am sorry for not responding earlier as I have been on hols.
This is fantastic, I had to read it twice to digest all the different regulations.
I think it would be interesting but the mother has gone into a hostel and being assisted by S.17 Children Act 1989 payments.

I agree this should be tested at a tribunal or Court of Law as it's open to interpretation depending on the facts of the case.
It's interesting your point about regulation 3 that concerns payment of CTC and the test there is that CTC (and WTC child care element) is paid to the member of a couple identified as "the main carer" (which doesn't appear to be defined). Had the client, still been within her marriage, her partner would be the main claimant as he has no immigration restrictions and the CTC would be paid to mother, as the main carer, despite her immigration restrictions.
I don't agree with CCO - that it would be frowned upon if the cousin claims. I thought the whole purpose of CTC was to provide stable income for families with children and within the multi-cultural society we live in there are so many complex family situations. The regulation cannot define each and every situation, therefore, should be left to the facts of each case.

This is no real difference to situations where grandmother claims for both daughter and granddaughter living in the same household.

Thanks for your comments.