Guidance to determine with whom a child “normally lives”

The Department for Communities has issued guidance on the effect of a recent upper tribunal decision concerning the meaning of the phrase “A person is responsible for a child or qualifying young person who normally lives with them”, which appears in the Universal Credit legislation.

The new guidance states that where a child’s time is split two or more households, the decision maker must consider whether there is a regular pattern to the child’s residence in determining where they normally reside, rather than relying solely on the amount of time spent in each household.  

Upper Tribunal case determines meaning of “normally lives”

The new guidance is issued in response to a UK Upper Tribunal case involving a young person who lived with a family friend for 12 out of 14 days and stayed with her father for two days each fortnight. Her father had claimed for the child element of Universal Credit, but had his initial application rejected on the grounds that his daughter normally lived elsewhere. He contested that he continued to be the person with responsibility for his daughter, that her current living arrangement was in order to allow her easier access to college, but that her “home” continued to be with her father.

Previously, guidance had determined that “normally lives” would be taken to mean the residence in which the child spends the most time. In a UK Upper Tribunal judgment, an analysis of relevant case law determined that this interpretation is “…based on a misunderstanding and misapplication of case law that is not directly in point”.

Cases where child or young person lives in more than one household

The guidance now requires that the decision maker give regard to the child or young person’s residence patterns in deciding with whom he or she normally lives, and that consideration be given to the question of who has the main responsibility for that child. The Universal Credit regulations hold that only one person can be treated as responsible for a child or young person if that child or young person normally lives with two or more persons who are not a couple.  The judgment includes detail as to how responsibility should be established, but quotes Upper Tribunal Judge Jacobs’ conclusion (in PG V HMRC and NG (TC):

“The proper approach is to collect information about all aspects of responsibility, to resolve any conflicts in the evidence, and then to form a balanced judgment on where the main responsibility lies. No factor predominates; all must be taken into account”

In this instance, the judge found that the child in question did normally live with her father, and that he was entitled to the child element of Universal Credit.

The Department for Communities memo, alongside other advice for decision making staff, can be found online.

The full decision, which gave rise to this change in guidance, is available from Gov.uk