Shared care isn’t occupation as a home.

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.

MR v North Tyneside Council and Secretary of State for Work and Pensions (Housing and council tax benefits : other) [2015] UKUT 34 (AAC)

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.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in assured-tenancy, Benefits, Housing law - All, secure-tenancy and tagged , .

5 Comments

  1. Any other outcome would have been astonishing. We have known for years that “occupy” and cognate terms need to be interpreted in accordance with Reg 7 for the purpose of earlier size criteria regimes in HB (from Marchant onwards). It would make no sense for Reg B13 to be uniquely interpreted differently. And the trail from Reg 7 to “family”, “household” and “responsible” was spelt out in Marchant – even though the Judge doesn’t name check Marchant, the UT has followed exactly the same route.

  2. I had an interesting thought of a theoretical situation..
    shared care between 2 parents , neither parent i[living n separate households in different parts of london gets CB, grandma in nottingham gets the CB she sending £11 to each parent .
    does the child live with gma for hb purposes? I think not.

    (gma can get hb as she is supporting child at least as much as cb rate)

  3. Pingback: A child can have two homes for bedroom tax purposes – Stunning appeal win by a landlord! | SPeye Joe (Welfarewrites)

  4. Thankfully, in the fast moving world of ‘justice’, this story is now outdated, and #BedTax has had a huge shit drop on it’s head, from a great height … About the height of a ‘spare’ bedroom, occupied (now lawfully) by a child of an estranged family :)

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.