Waltham Forest London Borough Council v PO
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2022] UKUT 58 (AAC) |
| Year | 2022 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2021 May 10; June 25
Upper Tribunal Judge
Social security - Housing benefit - Assessment - Claimant approved by local authority as foster carer for one young person - Local authority applying 25% reduction in claimant’s housing benefit based on need for only one bedroom following end of last foster placement - First-tier Tribunal concluding claimant “qualifying parent or carer” entitled to 14% reduction based on need for two bedrooms as foster carer - Whether First-tier Tribunal erring - Whether valid approval as foster carer lapsing on revocation of regulations or continuing under successor regulations - Guidance on operation and interpretation of relevant legislation - Questions to be addressed in assessing appropriate reduction in claimant’s housing benefit -
The claimant rented a three-bedroom house and was in receipt of housing benefit, which was subject to the under-occupancy provisions in regulation B13 of the Housing Benefit Regulations 2006F1. In June 2010 the local authority gave her formal notice, pursuant to regulation 28(5)(a) of the Fostering Services Regulations 2002F2, that she was approved as a foster carer for a supported lodging placement for one female child aged 16 plus, nd over the following years the authority placed several young women with her. In June 2013 the local authority reconsidered the claimant’s housing benefit award, deciding that she was an approved foster parent and that the reduction of 25% previously applied to her claim should be reduced to 14% from 1 April 2013, pursuant to regulation B13(6) of the 2006 Regulations, which made provision for a foster carer to retain entitlement for an additional bedroom during gaps between fostering placements where a person was a “qualifying parent or carer”, as defined in regulation 2 to include a person who had been “approved as a foster parent under regulation 27 of the Fostering Services (England) Regulations 2011” but did not currently have a child or young person placed with them and had not done so for “a period which does not exceed 52 weeks”. The definition further included a person who “has a child or qualifying young person placed with them as mentioned in regulation 21(3) who by virtue of that provision is not treated as occupying their dwelling”, with regulation 21(3) in turn referring in that connection to a young person placed by a local authority under section 22C(2) of the Children Act 1989F3. In March 2018 the local authority re-approved the claimant as a foster carer under regulation 27 of the Fostering Services (England) Regulations 2011F4 to care for one child aged 0–18, with preference of young women aged 16 plus. In August 2018, following a further review of the claimant’s housing benefit claim, the authority concluded that the claimant was subject to a 25% deduction from housing benefit with effect from the end of July 2017 on the basis that her last foster care placement had ended on 25 June 2016, and it sought to recover the overpayment. The claimant maintained that her last placement had ended on 25 April 2017, and that no further placement could be made with her until the re-approval process begun in September 2017 had concluded. The claimant appealed to the First-tier Tribunal on the ground, inter alia, that she was a qualifying parent or carer at all material times, either because she was fostering a qualifying young person placed with her by the authority or because she was entitled to the benefit of the 52 weeks provision which had started to run again from the date of the authority’s decision in March 2018 re-approving her for fostering. Before the appeal hearing, the authority revised its decision and concluded that the 25% deduction was to be made from a much earlier date, resulting in an even greater overpayment. In determining the appeal the tribunal proceeded on the basis that the only live issue was whether the claimant was entitled to be treated as an approved foster carer for the purposes of the definition of “qualifying parent or carer” and, deciding that she was, found that there had been no overpayment and allowed her appeal. The authority appealed on the ground that, while the tribunal had been entitled to find that the claimant had at all material times been a qualifying parent or carer, it had given insufficient consideration to the requirements of regulation 21 of the 2006 Regulations including the circumstances in which, under regulation 21(3), a child or young person placed with the claimant was not treated as occupying the claimant’s dwelling, in which regard the authority contended that two of the young women placed with the claimant had attained the age of 18 during the placement and so could no longer be placed under section 22C of the 1989 Act.
On the appeal—
Held, allowing the appeal, (1) that where the claimant’s approval for fostering had been validly given under regulation 28 of the Fostering Services Regulations 2002, it had not lapsed on the revocation of those Regulations in 2011 but instead fell to be treated as having been given under regulation 27 of the Fostering Services (England) Regulations 2011; and that, accordingly, the claimant was not prevented from satisfying the definition of “qualifying parent or carer” just because her approval had originally been given under the 2002 Regulations (post, para 29).
(2) That, as substantially agreed by the parties, in assessing the claimant’s percentage maximum housing benefit the position was: (i) the claimant was at all material times approved as a foster carer for the purposes of regulation 27 of the Fostering Services (England) Regulations 2011; (ii) the placement of a child or qualifying young person with the claimant would fall within regulation 21(3) of the Housing Benefit Regulations 2006; (iii) it could not be said on the evidence that the placements with the claimant were throughout placements of a qualifying young person, rather, that was a matter which needed investigation; (iv) once a young woman placed with the claimant under section 22C of the Children Act (or section 23) attained the age of 18, she ceased to be a child for the purposes of that Act and so could no longer be so placed, even if she remained with the claimant; (v) if a young person occupying a bedroom in the claimant’s house did not fall within regulation 21(3) of the 2006 Regulations, either because they had attained the age of 18 or because they were not a qualifying young person, they would occupy the house as their home and the claimant would be entitled to an extra bedroom in respect of that person under regulation B13(5) of the 2006 Regulations; (vi) if such a young person had attained the age of 18, a claimant’s housing benefit might be reduced by a non-dependant deduction made under regulation 74 of the 2006 Regulations; (vii) the ordinary process of approval under the 2011 Regulations did not set the 52-week period of grace in regulation 2 of the 2006 Regulations running again; and (viii) the 52-week period ran from the date a young person ceased to be placed under section 22C or section 23 of the 1989 Act, namely from their 18th birthday not from the date they moved out (post, paras 49, 52, 56, 66).
(3) That, given the information before the First-tier Tribunal, there were live questions as to whether any part of the claimant’s housing benefit had been overpaid, depending on the length of any placement strictly so-called (namely, the period for which the young woman concerned remained a “child” for the purposes of the Children Act 1989), whether the placement was of a “qualifying young person” as defined, whether more than 52 weeks had elapsed since the end of the previous placement and whether, while a young woman over 18 remained with the respondent, a non-dependant deduction fell to be made; that the tribunal had erred in law in not dealing with those questions and proceeding on the basis that the only live issue was whether or not the respondent was an approved foster parent for the purposes of the definition of “qualifying parent or carer”; that, in particular, it had been conceded that the tribunal had erred in its treatment of the 52-week period; and that, in view of the large number of questions which had to be determined before a decision could be reached on whether or not there had in fact been an overpayment and, if so, for what period and what had caused the overpayment, the matter would be remitted to the tribunal to ascertain the periods for which a 14% or 25% deduction was appropriate, applying the relevant principles (post, paras 52, 55–57).
The following case is referred to in the judgment:
Kerr v Department for Social Development
The following additional cases were cited in argument or referred to in the skeleton arguments:
CH/2555/2007 (unreported) 5 February 2008,
CH/2794/2004 (unreported) 14 February 2005,
Jeleniewicz v Secretary of State for Work and Pensions
PM v Secretary of State for Work and Pensions
R (Nationwide Association of Fostering Providers) v Bristol City Council
Wood v Secretary of State for Work and Pensions
APPEAL from the First-tier Tribunal (Social Entitlement Chamber)
By a decision dated 12 March 2019 the First-tier Tribunal (Social Entitlement Chamber) allowed an appeal by the claimant, PO, against the decision of the local authority, Waltham Forest London Borough Council, dated 13 August 2018 that (i) she was subject to a 25% deduction in...
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Waltham Forest LBC v PO (HB)
...THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER NCN: [2022] UKUT 58 (AAC) Appeal No. CH/1970/2019 On appeal from the First-tier Tribunal (Social Entitlement Chamber) Between: LONDON BOROUGH OF WALTHAM FOREST Appellant -v– PO Respondent Before: Upper Tribunal Judge Ovey Hearing date: 10th ......