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The Upper Tribunal clarifies when foster carers are exempt from the ‘bedroom tax’: LBWF v PO [2022] UKUT 58 (AAC)

9/3/2022

 

The Upper Tribunal has considered and given judgment on a novel point of law about how the bedroom tax exemption for foster carers applies under the Housing Benefit Regulations 2006 in LBWF v PO [2022] UKUT 58 (AAC); rightsnet summary here.

 

The claimant (who was the respondent in these proceedings) was a foster carer.  She had been approved under the old Fostering Services Regulations 2002 but the Housing Benefit Regulations 2006 only referred to carers approved under the more recent Fostering Services (England) Regulations 2011.

 

PO was occupying a three bedroom flat rented from a social landlord, meaning that the bedroom tax rules applied to her based on having two ‘spare’ bedrooms.

Foster carers are entitled to an extra bedroom in two circumstances. First, if they have a child or young person placed with them under s. 22C Children Act 1989 who are not treated as being a member of the household nor as occupying the dwelling under s. 21(3) HB Regs. Second, where they have been recently approved or there is a gap between placements, and no more than 52 weeks have passed since these events.

 

The issue on appeal was whether a bedroom tax exemption for approved foster carers applied to the claimant and, if so, for what periods of time it applied. If it did apply, the respondent was entitled to one additional bedroom, reducing the bedroom tax from 25% to 14%.

 

Our Jeremy Ogilvie-Harris at Hackney Community Law Centre represented the claimant (“PO”) under its Welfare Benefits contract until successfully being granted exceptional case funding, the day before the originally listed hearing. (Jeremy has written about Tips on getting exceptional case funding for welfare benefits appeals elsewhere.) Jeremy’s submissions were described by UTJ Ovey as being “very detailed and careful submissions”. After the hearing was adjourned to allow the claimant to make use of her legal aid funding, Desmond Rutledge of Garden Court Chambers was instructed and represented the respondent in the adjourned hearing. Paul Stagg of 1 Chancery Lane represented the appellant, the London Borough of Waltham Forest.

 

By the time of the appeal hearing, counsel for the parties had broadly agreed how the qualified carer exemption operates. The Upper Tribunal gave helpful guidance for future cases (para. 49):

  1. PO was an approved foster carer because s. 17(2) of the Interpretation Act 1978 applied, so the Fostering Services (England) Regulations 2011 fell to be construed as including the Fostering Services Regulations 2002.
  2. Where a child or qualifying young person turned 18 year old, they were no longed placed with a foster carer under s.22C Children Act 1989. However, this meant that the person placed with the foster carer would no longer fall within reg. 21(3) HB Regs and would be entitled to a bedroom in their own right
  3. In those circumstances, the Tribunal would then have to investigate whether the non-dependent deduction would apply under reg. 74 HB Regs.
  4. Reapproval as a foster carer did not reset the 52 weeks grace period normally applicable between placements
  5. Contrary to what the First-tier Tribunal found, the 52 weeks grace period would run from the date that a qualifying young person turns 18, rather than from the date she moves out.

The Upper Tribunal also clarified the extent of the duty of disclosure under reg. 86 and reg. 88 HB Regs on foster carers when housing benefit authorities request information from them about the children or young persons placed with them.  The foster carer had been concerned about disclosing sensitive and confidential information about the young women placed with in her care to the authority. UTJ Ovey held that there was a duty to provide information about the placements to the housing benefit department but only so far is as material to the benefits claim (paras 63-72). However, UTJ Ovey held that “it is less obvious” that information requires disclosure where this would not be material to, e.g., the nondependent deduction (para. 71, cf 67). Where a foster carer is uncertain about whether information should be disclosed, “it would be reasonable for [them] to seek the guidance of the Family and Home Directorate” (para 76) which was the body responsible for approving foster carers within the local authority.

 

The appeal was remitted to the First-tier Tribunal where Hackney Community Law Centre continues to represent PO.