The benefits entitlement of parents who share childcare after they split up is examined by Gary Vaux who looks at official guidance and a legal ruling
A common problem that social workers face when working with parents who have separated concerns who receives which benefit. The benefit system, with its “winner takes all” ethos, creates situations which do not reflect the reality of shared childcare.
One of our clients was told by Revenue and Customs that his child tax credit claim could not be processed because he was not receiving benefit for the children in question. The two children live with him most of the time, but child benefit is still paid to his ex-partner.
Even if he applies for the benefit, and his ex-partner doesn’t object, it may take weeks for the it to be transferred. If she objects, it could be months. In the meantime, he is denied the child tax credit that he needs.
In fact, there is nothing in the rules that says entitlement to child tax credit depends on child benefit or is even linked in any way. Helpfully, Revenue and Customs has updated its guidance manual for child tax credit to clarify this:
Where two or more people are unable to agree on who has main responsibility for a child or qualifying young person, the commissioners for HM Revenue & Customs may determine who has the main responsibility based on the information available to them at the time of the decision.
Facts that can be considered as indicating whether a claimant has the main responsibility for a child when the Commissioners for HM Revenue & Customs are trying to decide who has main responsibility include:
● Who the child or qualifying young person normally lives with and where they keep the majority of their belongings such as clothes, toys.
● Who is responsible for the day-to-day spending for the child or qualifying young person such as buying clothes, food and providing pocket money.
● Who the main contact is for school/college/nursery/childcare.
● Who is responsible for the health care and hygiene of the child or qualifying young person such as making appointments with the doctor/dentist, doing the child or qualifying young person’s laundry.
● What is the registered address for contact for the school/college/nursery/child care, healthcare.
● Who has legal custody of the child or qualifying young person.
This list is not exhaustive.
A fact that must not be considered by the commissioners as indicating whether a claimant has the main responsibility for a child or qualifying young person, is who receives child benefit for the child or qualifying young person.
It is interesting to note that even this recent guidance has references to “custody”, which hasn’t been a factor in English law since the Children Act 1989 replaced it with the concept of “residence”.
One line of argument that has been used recently is that denying child tax credit to “substantial minority carers” (people who look after children for up to three nights a week, for example) is a denial of their human right to a secure family life. A recent Court of Appeal judgement put paid to that. The court ruled that Revenue and Customs’ policy of normally awarding child tax credit to the “majority” carer is not in itself unreasonable, so there is no breach of human rights legislation.
But reliance solely on who has child benefit is wrong and must be challenged.
Gary Vaux is head of money advice at Hertfordshire Council. Please send any questions for him to firstname.lastname@example.org
This article is published in the 18 March issue of Community Care magazine under the heading Who receives which benefit when parents separate?