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Child Benefit Case 1

Question At Issue:

‘Normal residence’ of qualified child.

Background:

Child Benefit had been paid to the child’s mother (the appellant) but was disallowed with effect from a specified date as the Deciding Officer determined that the child was living with his father for most of the time after that date. The couple had divorced some six years earlier.

Oral Hearing:

The appellant attended the hearing alone. The Appeals Officer requested the attendance of the child’s father and both parents were invited to give evidence separately.

In support of her appeal, the appellant contended that the child’s main residence was with her. She argued that under the terms of the separation agreement, she had sole custody of the children. She reported that the child in question was going to school near his father’s home as both parents had considered he might do better at that school. The appellant pointed out, however, that he spends weekends, school holidays and mid-term breaks with her and that school reports and notices of parent/teacher meetings are sent directly to her. She expressed the view that her former husband sought to have Child Benefit paid to him in order to ensure that he continued to receive a rent supplement (under the Supplementary Welfare Allowance scheme). She reported that he had not paid maintenance for some years in spite of the maintenance agreement approved by the Court. The appellant stated that she meets the cost of health insurance for her son, that she gives him pocket money (amount specified) and that she buys him some clothes.

The child’s father denied that the appellant had custody of the children under the separation agreement. He stated that he had not consented to a separation and that the appellant herself had sought and obtained a divorce. He denied that the appellant bought clothes for their son on any significant basis and argued that the pocket money provided by the appellant was given in return for babysitting and doing odd jobs around the house. He confirmed that their son would be living with his mother for the summer months and that it was planned that he would then return to live with him when the new school year began. He expressed concern about his son’s education and argued that he was in a position to provide an atmosphere where his son could study properly.

Consideration of the Appeals Officer:

The Appeals Officer noted that both parties agreed that for the duration of the school year the child had spent Sunday evening to Friday evening with his father; Friday to Sunday with his mother; school breaks at Christmas, Easter and bank holidays with his mother, and odd days during those holidays with his father. She noted that both parties had also agreed that the child had moved most of his personal belongings to his mother’s house with the expectation of getting a summer job nearby and that it was planned that the former living arrangements would apply for the new school year.

The Appeals Officer considered that it was not possible at the time to establish what would happen during the summer holidays so that she determined the appeal with reference to the factual position in the nine months preceding the oral hearing. On that basis, she considered that it had been established that the child had lived with his father for most of the period from September to May; that he had also spent odd days during school holidays and weekends with his father, and that it was planned that he would spend some weekends with him during the forthcoming summer holidays.

Following the oral hearing, the Appeals Officer received a letter indicating that the child’s father had sought custody for the remainder of the year and that a date had been set for a Court hearing of the application. The Appeals Officer concluded that the child is normally resident with his father and that, accordingly, the appeal must fail. She advised both parents that in the event of any change in their caring arrangements, they should advise the Department of Social and Family Affairs.

Outcome:

Appeal disallowed.

End of Document