HB entitlement when child in temporary LA Care

Clients children where fostered temporarily for 5 mths and have now been returned to family household. Placement was always intended or hoped to be temporary. CB + CTC + IS + HB all stopped. HB state that throughout this period mum now only entitled to shared room rate (under 35 4 bed property) as children where ‘looked after children’  HB Regs 21(4) (a), and fact temp absence is irrelevent. Initially I thought they where wrong ...now need further opinion any way forward?

Apply for Discretionary Housing Payment with backup of children’s services

These are really the situations that DHP’s were intended for

Thanks. Was trying to keep that as last resort, but she will have a reasonable case as she has accrued so many overpayments with these various changes in circs, that the growing financial pressures is a concern in what is already a delicate situation. Do not understand why this situation is not just classed same as any other temporary absence.

For aggregation/means testing purposes it has always been the case that a child who spends the whole of a week in care is not included in the HB assessment for that week.

But the size criteria rely on Reg 7 - occupation of the dwelling.  Reg 21(3) was amended from June 2013 to reverse the effect of a UT decision on children fostered by the claimant so that they no longer count as occupiers for LHA, bedroom tax etc.  But there was no corresponding amendment of Reg 21(4) which deals with the reverse situation where the claimant’s own child is being looked after elsewhere.  So in such cases Reg 7 still applies.

Your next task is to get the children into one of the categories for whom 52 weeks’ absence is allowed.  Were they fostered because the claimant was ill?  If so perhaps “medically approved care” could be stretched to cover it: Reg 7(16)(c)(vii), or maybe even fear of violence if that was the reason for their being fostered.  Otherwise, as soon as it was known that the children were likely to be absent for more than 13 weeks they would have to drop out of the size criteria assessment.  Then a DHP would be the only solution, but it ought to be a slam-dunk.

If the Council are saying that Reg 21(4) prevents the children from having bedrooms, they are wrong and they are misunderstanding the Marchant principle (analysed here http://www.hbanorak.co.uk/downloads/shared_custody_analysis.pdf): as long as the children do not belong to another person’s “family” (which as fostered children they would not) then subject to the time limits on temporary absence they remain occupiers of the claimant’s dwelling.