A short Upper Tribunal decision has put an end to bedroom tax appeals based on the ‘part-time’ residence of a child of a separated family with shared care.
The FTT in this case had found that the tenant was entitled to an ‘extra’ bedroom, as under a shared residence order, her son spent alternate weeks with her. The father received the child benefit and child tax credit, though in practice this was split. The FTT ‘treated ‘dwelling’ and ‘home’ in regulation B13 as undefined ordinary words’ and so found the son was dwelling with both parents.
The Upper Tribunal found that Regulation B13(5) – ‘occupies the dwelling as their home’ had to be read in the context of the Housing Benefit Regulations overall.
“Regulation 7(1)(a) is part of that context. It provides that ‘a person shall be treated as occupying as his home the dwelling normally occupied as his home … by himself and his family’. Section 137(1)(c) of the Social Security Contributions and Benefits Act 1992 defines ‘family’ as ‘a member of the same household for whom that person is responsible and who is a child’. This leads to regulation 20(2)(a), which provides that when ‘a child … spends equal amounts of time in different households … the child … shall be treated … as normally living with the person who is receiving child benefit in respect of him’.”
As a result, the child could only be treated as occupying the home where child benefit was received in respect of him. This was fatal to the tenant’s case. DWP appeal allowed and the 14% one room deduction was re-applied.