Universal credit − Child element − Regulation 4(2) and (4) − meaning of ‘normally living with’.
In December 2015 the appellant made a claim for universal credit (UC) indicating ‘yes’ to the question “do you have any children that you are responsible for, living with you some or all of the time?”. The appellant was paid UC including the child element. Secretary of State later decided that the appellant did not have main responsibility for his daughter and that the living arrangements for the daughter were such that she did not actually “normally live” with the appellant at all. The appellant’s entitlement to the child element of the UC was withdrawn and this created an overpayment.
The appellant appealed to the First-tier Tribunal (F-tT). The F-tT upheld the Secretary of State’s decision, agreeing that the appellant was not entitled to the child element of UC in respect of his daughter. The appellant appealed to the Upper Tribunal (UT). The issue before the UT was the proper interpretation and application of regulation 4(2) and 4(4) of the UC Regulations 2013 and the meaning of the phrase “a person is responsible for a child or qualifying young person who normally lives with them” as it appears in the UC legislation.
Held, allowing the appeal, that:
regulation 4(4) is wholly different to regulation 7(2) of the Family Credit (General) Regulations 1987. It does not presuppose equal shared care. Nor does it presuppose “there is a question as to which household he is living in”. Rather, it proceeds on the entirely different footing that the child in question “normally lives with two or more persons who are not a couple”, in which case “only one of them is to be treated as responsible and that is the person who has the main responsibility” (paragraph 38);
there is no reason why “normally lives with” should have one meaning in regulation 4(2) and a different one in regulation 4(4). It follows that the expression “normally lives with” should be applied with a focus on the quality rather than quantification of the normality. The amount of time spent living with a particular person may be a factor, but it cannot be the exclusive or determinative factor (paragraph 41);
the official (departmental) guidance is based on a misunderstanding and misapplication of case law that is not directly in point (paragraph 42);
the Advice for decision makers: staff guide is a good starting point for the test of main responsibility (paragraph 59).
The judge re-made the F-tT’s decision, finding that the appellant was entitled to the child element of UC, subject to regulation 5.