Shared care and the bedroom tax: can housing and family law be reconciled?

It is a sad fact of life in the family courts that the child’s welfare is not always paramount.  For many parents, when considering the arrangements for where a child should live, they must take into account the impact of any such agreement on eligibility for housing, child support, child benefit and tax credits.  This, of course, is at odds with the role of the court, which must concentrate on the child’s best interests.  This dichotomy presents a challenge to legal representatives who must balance a client’s legitimate concerns over finances with a court which is unwilling to take them into account.

The recent decision of the Upper Tribunal in Secretary of State for Work and Pensions v MM and Northumberland CC (HB) [2015] UKUT 624 (AAC) – applying the Housing Benefit Regulations 2006 – highlights the problem.  A public sector tenant was seeking to challenge a local authority’s decision that he was liable to a reduction in housing benefit in the form of a ‘bedroom tax’ on his second bedroom.  The bedroom tax is “for practical purposes…a reduction in the amount of housing benefit payable to claimants who have more bedrooms than they require in law”.

The bedroom in question was used by the tenant’s son, who split his time between his parents.   As the judge noted, arrangements had been made “amicably between the parents, for the benefit of their children, without the need for court orders.”  The tenant argued that the bedroom tax should not apply given the shared care arrangement in place, which required the use of the bedroom for his son.

The tenant was unsuccessful.  The Tribunal applied regulation 20 of the 2006 regulations, which defines a person as being responsible for a child if they receive the child benefit.  Since the child’s mother received the child benefit, she was to be treated as responsible for the child and the tenant father was not.

Given that there is no way of child benefit being split at source and paid to two parents, the regulation is a blunt instrument.  The judge himself noted that the bedroom tax “causes considerable problems for parents who have shared care arrangements for their children”.  It is, in the writer’s view, another example of statute failing to keep up with social changes and the increasing prevalence of genuinely shared care. The very fact that the regulations require one parent to be ultimately responsible over and above the other shows the extent to which housing law is still at odds with the views of the family court.

In the meantime a difficult balance must be struck by practitioners in addressing what is best for a child whilst acknowledging the practical realities of housing and finances.