Anybody know if foster children are included in the size requirement for rent officer determinations?

Cheers, Brian

Hi,

Zebedee, Ward and Lister's Guide to Housing Benefit and Council Tax Benefit states the following:

A child or young person is not counted as a member of the claimant's household where they are a foster child placed with the claimant or partner by a local authority or voluntary organisation.

Based on this, I would guess that the rent officer determination will not take into account any rooms that are set aside for foster children.

This is probably not what you wanted to here but hope it's useful

Regards

John

No they are not. They cannot be treated as members of the household.

Rationale is, I think, that allowances are paid for fostering, so there should not extra HB as well.

Thats exactly the reason!

Foster carers are paid a weekly allowance (in some London borough councils and undoubtedly other metropolitan ones too), that allowance can be in excess of £200 pw per child, or per sibling group family placed. In addition, the foster carers can be paid additional 'top up' allowances, and fees for additional items, or larger items not provided for in the day to day expenses.

With the significant shortage of foster carers, I would suspect that if they are any good, and they approach their local authorirty fostering team, they could make a request for the 'loss' that a reduced ROD would bring to be made up by the LA's children's services dept. I would guess that they would be successful if they made that request, and assuming they are any good so the LA will not want to lose them...

Hope this helps, (p.s. am currently a practising CP social worker, and would want children I have in foster care to remain in their placements, so would also bring pressure to bear on the fostering section where I work to make up for the lower ROD, but again, only of they were good at their job. Though I must say that its a sad state of affairs that the welfare state rests on subjective observations of people as foster carers)!

Well I don't care what you all say, I will continue to argue (at least pending LHA which may change things) that foster-children should be included in the RO size determination.

1. the test is the numbers of 'occupiers' not the members of the household
2. it is an HB decision, not an RO decision. They specify the number of occupiers on the Ro referral
3. other arguments below excerpted from my standard letter in such circumstances WHICH HASN'T FAILED YET (all references are to the old HB Regs):

"Since this is a new property you will no doubt be referring the rent to the Rent Officer. When you do so you are required to specify the number of “occupiers” in the dwelling.

The word “occupiers” is not defined anywhere in the legislation. Presumably it has something of the meaning applied to the claimant by Reg.5, Housing Benefit (General) Regs ('normally occupying as the home') eg. no other home, temporary absences disregarded. However it must also be broad enough to cover non-dependants normally living with the claimant.

I submit that on any reasonable interpretation of the word “occupiers” there are [] occupiers of the above property, and this is the number the Rent Officer should be asked to use when applying the size criteria."

and

"The fact that Social Services pay fostering allowances in respect of the foster children is irrelevant to the question whether they are “occupiers”. True it is that foster children are treated as not being members of the claimant’s household under Reg.15(3)(a); however this is of relevance only to the calculation of applicable amounts under the immediately ensuing Reg.16. It cannot be relevant to the definition of “occupier”, which includes non-dependants. This is made clear by S.137(2), Contributions and Benefits Act which provides for quite separate definitions of occupying a dwelling as the home (para.(h)) and membership of the household (para.(l)).

Different circumstances might arise in respect of short term or respite foster children who retain a normal home elsewhere but all the foster children in this case live with indefinitely and have no home elsewhere."

So there.

Richard Atkinson

Another view (which doesn't suit my case admittedly) is that fostering is self employment and qualifying work for WTC purposes, so the accommodation required for the foster children is accommodation needed for the conduct of one's "business". You wouldn't expect to get HB on your study if you were a self employed welfare rights consultant working from home, would you? I'm waiting for a local rent officer to call me back. I'll let you know.

Good weekend, all!

Actually, Richard, I agree with you in principle but the caselaw doesn't agree with either of us - R v Swale BC HBRB ex p Marchant, in which the judge basically decided that "membership of a household" and "occupier" were totally bound up with each other.

Fair play to you if you have been successful but I suspect alot of LA's will rely on Marchant.

What is clear is that a foster child is not a "member of the household" because that is specifically ruled out by HB Reg 21(3), so one is reliant on getting the LA to see that as separate from the definition of "occupier".

Fri 05-Oct-07 05:45 PM by octagonpeter

Richard - HBINFO would certainly argue that your position is correct and that this has carried through into the draft LHA regs. Below is a post from a colleague that puts our position on this very well I think. A test case on this point would be welcome:

The draft LHA guidance says of foster children (with Reg numbers updated from the 1987 Regs cited in the guidance):

"Their family is defined in section 137 and includes those for whom the claimant is responsible. This term is defined in HB regulation <20>, and HB Regulation <21> determines those for whom the claimant cannot be held as being responsible. Foster children are included in HB Regulation <21(3)> as it is the local social services who are responsible for the child they have placed in the claimant’s care. The foster child can not be a member of the claimant’s family and so does not ‘occupy’ the dwelling for the purposes of HB Regulation <7(1)>. Foster children should not be treated as being members of the claimants’ household, therefore not treated as an occupier and consequently not included under the size criteria."

I wonder whether this is correct? The size criteria in the draft LHA Regs are structured as follows:

- Reg 13D(2)(c) says the claimant is entitled to the number of bedrooms specified in para (3)
- Reg 13D(3) allocates bedrooms to each "occupier"
- Reg 13D(12) defines "occupier" as the people who ocupy the dwelling as their home, except joint tenants.

The guidance assumes that a foster child cannot occupy the dwelling as its home because it is not part of the "family", and Reg 7(1) says that a person may only be treated as occupying the dwelling where he and his "family" live, if he has a family. I don't think this means anyone who does not belong to a "family" does not occupy anywhere as their home. What about non-dependants, for example? Or boarders and subtenants? They too do not fall within the s137 definition of a "family", but they are supposed to be counted as occupiers according to the guidance.

I think the guidance is relying too much on the case of Swale and Marchant, where a father with shared custody could not have his children included as occupiers on an RO referral because they were members of their mother's "family", so that was where they lived. The point about Marchant was that the children could only occupy one home, and family membership was the deciding factor in picking the right one. But foster children are different - some foster children stay with the same carer for years and they cannot conceivably be said to occupy any other home - there is clearly only one candidate for the normal home in such cases.

In conclusion, if the term "occupier" in Reg 13D is limited to "family", then it cannot cover non-deps and lodgers; on the other hand, if the term is wide enough to embrace non-deps and lodgers, it must also cover long term foster children as well in my view.

starting point for defining the meaning of a word used in legislation is the OED.

therefore, in the natural and ordinary meaning of the word "occupier" a long term foster child is an "occupier".

that's my view anyway.....(and I agree, marchant can clearly be distinguished on it's facts.....).

someone will bring a test case one day, no doubt....

Commissioners have pointed out many times that the DWP guidance has no legal status and is therefore of limited value in submissions.

Swale and Marchant was only concerned with shared care by a separated couple and the COA held that the children could not be occupying a dwelling when they were members of a household living in another dwelling.

Foster children on the other hand are not living in a houehold elsewhere.

I would argue that foster children and non dependants are occupiers for the simple reason that they are (normally) residing with the claimant.

I entirely agree with Richard. I have wanted to take a case to challenge the interpretation in Marchant ever since the Human Rights Act came in - Marchant was before 2000. It seems to me that to give 'occupiers' a meaning limited to people within the HB definition of family is both wrong as a matter of construction, but also results in a breach of Art 8 - right to develop family life. Not had the chance to test that argument yet.....

Simon

For some reason the post has come up with my old details - not with French & Co since 2005!

Article 8 might provide some relief, but perhaps not for foster carers! The children are not part of "their" family, therefore any Article 8 challenge is debatable! Even if the children are in foster care on a legal order, Parental Responsibility remains shared with the children's birth parents, and I would suspect that the birth parents would have something to say about any person seeking to bring actions seeking to assert Article 8 rights over their children, in any sense.

In addition, and in the public law arena, Foster carers have NO legal rights over the children. Legal rights over the children rest with the local authority (whether by court order or 'voluntary' care), and never, ever, the foster carers. Foster carers have to request local authority approval for any issue affecting the child. If I knew that a foster carer was asserting Article 8 rights over a foster child, I would be speaking with my foster team with a view to having them removed as approved foster carers.

The welfare of the children placed in public care rests with the allocated social worker and their line management structure, and the allocated social worker is legally responsible for the welfare of the child, not the foster carers! Foster carers do not have any rights over the children, and the children they look after can be moved from them without notice if that is the decision made by the social worker. Foster carers have NO legal rights over the children in their day-to-day care!

none of which can prevent a foster child being an occupier of the house in which s/he has been placed by social services....

Within the meaning of social security law as I understand it, and in response to any Article 8 challenge, I consider it does! How can you assert that the child makes up part of your family, if the law regarding that child, clearly says that child is not any part of your family at all... The Article 8 Challenge discussed above, is in my opinion, a non-starter!

There is also the policy argument too, and granted this issue will take a test case to argue if 'occupier' is different to 'family member' for the purposes of the applicable amount calculation.

Its all about statutory interpretation until a case decides the issue... On a strict reading of the law, there is a point to be made, on an purposeful reading of the law, it is clear that foster carers can not have children included in the calculation of social security benefits.

I would prefer the view of Devon County Council at 5.5 and 5.6 (below). The HRA is a living instrument and its applications will develop over time to reflect the realities of modern life rather than strict and narrow conventions. In my view the argument is there to be made and let the courts decide.

http://www.devon.gov.uk/index/cyps/child-protection/child-protection-procedures/cp-sec-6/cp-sec-6-6.htm

Well spotted Paul.

Having tried and failed to take a size criteria case forward on HRA arguments relating to a room avaialble in a disabled person's home for a rota of overnight carers, I would love to see a suitable case found for a challenge to Marchant, and the over-rigid interpretation of it by some that "occupier" can only mean "family member as defined for applicable amount".

And if HB rules aren't supposed to recognise the existence of non-family members in claimants' households, can we expect to see the end of non-dependant deductions?

There is no alternate view! The web page on DCC's website does not say anything I haven’t! That web page (not that it has any effect in law, at all or whatsoever!), should not be given the interpretation that the HRA extends to foster carers - when considering members of a household! Indeed as I have said above, foster carers have absolutely NO legal authority to speak for a child in their care, let alone bring actions in relation to the HRA!

Only the social worker has PR (which remains shared with the birth parents!). Foster parents can have a say, and that is all the web page says. This is usually around issues about what time the children go to bed, what/when they eat, when they should do their homework etc. as that might impact on the private and family life of their own children, as being a foster carer is a 24 hour a day job – and so will impact on the private and family life of the foster carers, and social workers have to be mindful of that fact, nothing more, nothing less!

A foster carers voice under the HRA is in relation to their own children and family, whilst also being foster carers! But as the social worker has overriding PR (when in proceedings) and under the HRA should seek and elicit the views of foster carers, but that doesn’t mean acting on those views, just making decisions taking their views into account. And that might well mean overriding those views, to removing the children from them!!!

Case in point; I have this week to 'undo' what a foster carer has done by way of enrolling a child in nursery. I am going to remove that child from that nursery place. The foster carer had no power to make that decision. They have no idea (and nor should they under the DPA) what my plans are in relation to the private and family life of the child and birth parents concerned. It is I consider a very dangerous step to even begin to consider that foster carers should have any degree of overriding HRA rights over a child in their day-to-day care. What about the birth parents? What happens in areas of conflict where say the foster carer and birth parents disagree? Should we act on the wishes of the foster carer in preference to that of the birth parent? I feel this thread has lost sight of the child at the end of this and the end of getting a foster child onto the ROR is the be-all-and-end all outcome, and clearly it is not.

For reasons I have given in this post and above, a child can not, and should not, be a part of the foster carers household, with the foster carer having HRA rights. What starts out as a challenge to HB ROR’s, if decided by a court which can set binding precedent, would open up these issues, (and would then be challenged and I am confident shut down by a higher court (on the issue of HRA, though not necessarily on the definition of occupier) on children’s social services dept. as we can not allow foster carers to have HRA rights over the children in their care. Those rights must remain with the birth parents!)

Foster carers have asked me if they can begin religious instruction for a foster child, and I have had to go to the birth parents to ask their permission and seek their views before I make a final decision. You see, foster carers can't even take a child to church (mosque, synagogue or any other place of worship!) without permission, as those children are not part of their household – they have no legal rights for that child. The rights and responsibilities for that child rest with the allocated social worker and their manager(s), and no one else!!

Foster carers have a common law duty of care, and are subject to regulations (Children Act 1989) regarding the standard of the care they provide, nothing more, nothing less. They are professionals and receive a payment from the public purse for their work. Nothing more, nothing less! The children are no more a part of their household than a friend of their own child staying overnight or at weekends. They have no right to claim benefit for someone else’s child - whether you agree with that position or not, that is the position.

I consider that in any event, even if an ‘occupier’ challenge were successful, (and having made submissions on this topic and been successful when representing LA’s – I know that this is an emotive topic, especially in relation to adult carers, and some of that emotion is possibly coming out in this thread, but that is not at issue here as the question posed what about foster children, not other arrears of ‘occupier’ that might warrant a revision of the HB regs, such as full time adult carers, who stay one, two, or more night a week with a HB claimant, but are not on the ROR) all the children’s services would do is lower the amount paid to foster carers. This is rightsnet, and perhaps rather than considering HRA challenges, which might have unforeseen consequences, the advice I posted in my first post would probably get you what you want.

There is a previous thread that relates to this discussion, and I was the appeals and presenting officer in the case that Tony referred to in July/August 2005, but left that LA before it was heard at Tribunal. Not sure what the outcome was, but am confident that my submissions should have been upheld (perhaps Tony can say if they were not, what the Tribunal turned on?)…

http://www.rightsnet.org.uk/dc/dcboard.php?az=show_topic&forum=102&topic_id=798&mode=full

Here endith the rant!

I'm solely looking at the definition of the word "occupier" , which is different from "family member" clearly.

a foster child can still be an occupier without being a family member, and to say otherwise is surely (to slightly misquote a famous quote) to do serious injustice to the english language....

unless you say a foster child occupies no space whatsoever... which can't be right...

would be interesting to know what one of the regular contributors from the Bar have to say on this point....

I seem to have opened a can of worms here.......

Anyway, rent officer determination has come back and the foster children (all long term by the way)have not been included in the size requirement. The LA listed the foster children as occupants, but the rent officer removed them apparently. Does the RO have the power to do that, even if the LA was wrong to include them? The Rent Officers (Housing Benefit Functions) Order 1997 says an occupier is
"a person (whether or not identified by name) who is stated, in the application for determination, to occupy the dwelling as his home," i.e. as previously stated in the thread, the LA decides who the occupants are.

Incidentally the HB Guuidance manual has the following

4.1540 Under regulation 21(3), a foster child is not treated as being a member of the claimant’s household.

4.1541 As a result, do not count a foster child as an occupier. To do otherwise would create double provision, ie foster parents are paid to accommodate foster children.

Only guidance and not the law of course, and the reference to membership of the household is spurious. the point about double provision is worthy of consideration though.

Brian

I dont think the rent officer has any power to say who the occupiers are, only the LA has the power to do that, but if they accept the reent officers determination,I would think your only option would be a JR against tthe rent officer service

In my view the point about double provision is only relevant to the appliicable amount and that is clear..foster children are not included.

If the claimant lives in an LA or RSL property, the rent is not referred to the rent officer and so the foster parent gets the full value of the fostering allowance.

If the foster child remains in the accommodation after reaching 18 (s)he could become a non dependant, but if I was the foster parent I on HB I would rent the room out to the ex foster child on a B&B basis.

What happens to double provision then?

Its all very well talking about policy intention, but there have been many instances where the Regs have not succeeeded in achieving the policy intention and the Commissioners and the Courts will ignore the supposed intention unless and until the law makes it clear.

On double provision, as well as the points above, see the Good Practice Guidance on National Minimum Fostering Allowances:
http://www.everychildmatters.gov.uk/_files/42CDA3303EA5C2317BBC4741906ECD39.doc
in particular para. 1.7-9:

"1.7 The methodology for calculating these rates took account of the regular costs incurred by all foster carers. However, there are significant elements which are not covered in the national minimum allowance, but which will apply to the majority of foster carers...

... 1.9 There are a number of other costs which may not be incurred by all foster carers, but support with the expense may enable some carers to look after more children, or a child with particular needs that they would not otherwise be able to care for. These include:

 housing costs such as the cost of an extension or adaptation to the home;
 the cost of acquiring a larger car."

I don't read that as implying anything more that a minimal average element for housing costs in fostering allowances - certainly not full provision.

Richard Atkinson

I express no opinion about whether a foster child should or should not be counted as a member of a claimant’s family for any purpose under domestic law. The point I am trying to make since it was a point legitimately raised by others is that a claimant does have a right to raise in argument a submission on right to family life under the HRA and it is the duty of his adviser to tell him so.

Whether that argument is accepted or dismissed is a matter for a tribunal or the higher courts which have the power to make a declaration of incompatibility regarding domestic law. Domestic courts have a wide margin of appreciation regarding qualified HRA rights and must apply the doctrine of proportionality. Threatening noises from LA’s about removing foster children, particularly those in long term stable placements, from people who consider bringing human rights challenges might not go down too well with the court.

Of course the welfare of the child is paramount and LA’s have wide ranging powers to remove children from placements if it is in the child’s best interest (not the LA’s best interest or birth parent’s best interest – whose views should be sought under article 8). However, absent any other risk to the child’s welfare, these powers should only be used if a solid case can be made that the mere raising of HRA arguments in legal proceedings itself is not in the child’s best interest (in a given case and not in general) and that question may be fundamentally so important in a general sense that the answer should be given by an impartial court.

In R v Manchester Council, ex parte L & Others and ex parte R and Others 2001 three looked after children under sections 22 and 23 of the Children Act 1989 were placed by the LA with their grandmother and other looked after children were placed with their older half sister. All children were subject to care orders.

The cases were brought by the foster carers on the grounds that payments to them at a lower rate than those made to foster carers who were not related by blood were discriminatory under article 14 of the HRA and breached their right to private and family life under article 8.

Munby LJ found not only that article 8 was engaged but also that the LA’s actions were actually in breach of article 8 and found in the foster carers favour.

This was not an isolated case either and although this was a case where the foster carers were blood related it nevertheless highlights the fact that a court has upheld an argument that for the purposes of article 8 of the HRA the foster carers and the foster children can be in a relationship which can be called ‘family life’.

Update.......

I've spoken to the rent officer concerned who now agrees that the Rent Service has no powers to amend the list of occupiers sent to them by the LA. She is doing a re-determination to include the foster children in the size requirements. I supect this will just move the debate about whether the children should have been on the list of occupiers back to the LA.

Brian

Nevip,

Just to let you know, the case you refer to does not say what you have posted, and it would be a tragedy if it were to be relied upon to say that Article 8 of the HRA applies to foster carers, they don't...

The judgement you refer to is more commonly known as the Munby judgement, (as you stated it was L J Munby’s ruling. The litigants were not in fact foster carers at all. The litigant’s were the grandparents of the child concerned, as so in law, could not by definition be classed as foster carers. They are kinship relatives, (this is a totally separate legal classification) and in fact the case turned on the very fact that there were not foster carers! The case was that as the children’s grandparents, they received less favourable financial treatment than if they were foster carers.
As advisors it is important to get the terminology correct, as otherwise incorrect advice could be given that might lead to disappointment, and a lot of wasted time. The HRA does not apply to foster carers, and to rely on Munby to say that it does is not correct.

Hope this helps to clarify matters. Kind regards,