Hello

I have a client who split with his children some 3 years ago. He has a residency order which is pretty much 50/50. His ex partner receives CB for both kids. Is the LA right to say he isn't entitled to two bedroom LHA rate (his kids are under 10 and different sexes). I've browsed the forums and spoken to the CPAG advice line and as a result I think the answer is yes but just wanted to confirm as I'm not sure if i've missed anything.

He has now put in a claim for CB so I hope he gets it for a child which would then hopefully sort this mess out.

Cheers

Ben

On the face of it, the LA is correct.

The only possible arguments against the LA's position might be "Hockenjos". The DWP's view is that Hockenjos doesn't apply to HB/CTB but, to date, I'm unaware of any CDs/UTDs in the public domain on this point.

Not so sure about this. See the brief discussion at the end of this thread:
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=7568&mesg_id=7568&page=

The case that says LA's must follow 'membership of family' rules in deciding who is an occupier for the purpose of the size criteria,, (which rules in turn depend on CHB entitlement under Reg.20), is R -v- Swale BC ex p Marchant.

Marchant in the HC was erxplicitly decided on the basis that there was no definition of 'occupier' except that implied by what is now Reg.7, which links to Reg.20.

However for the LHA size criteria there is now an explicit definition of 'occupier' in Reg.13D(12). That definition is far from straightforward to apply - "persons whom the ...LA... is satisfied occupy as their home the dwelling ...in question...".

Certainly arguable that this doesn't allow a person to be occupiers of two homes (because it's all expressed in the singular) but, when occupation is genuinely 50:50, I think it is also arguable that the definition would allow the LA to choose which children to include as occupiers, irrespective of CHB entitlement. For instance accepting one of the two children as occupiers in the present case would allow both parents to get the 2-bed rate. This would fit with the apparent intention of the Family Court.

I am anything but confident about this but I do think 13D(12) means that the shared care problem can be at least re-visited under LHA and it would be worth trying these arguments in an appropriate case.

Of course the real answer here is to split the CHB, with dad refunding mum if need be; getting parents to agree is the problem.

Richard Atkinsoon

The DWP's position on Hockenjos is, unfortunately, correct. Hockenjos was considered under EC Directive 79/9 which provides protection against sickness, invalidity, old age, accidents at work, occupational diseases or unemployment, (article 3 of the Directive). HB is not covered by that directive.