LHA rate for care leavers

Hopefully a quick and simple query! I’ve been looking at shared room rate exceptions for LHA and have confused myself over the exception for care leavers. The relevant bit of legislation refers to being a care leaver “before reaching the age of 18”, so my pea brain is thinking what if they leave care after reaching the age of 18,as is the case with a young person we are working with? They are still a “care leaver” but don’t appear to qualify for the exception…
Can someone please confirm if my logic is sound or whether I have got the wrong end of the stick on this one.
Many thanks.

I’m not sure what legislation you’re referring to? The legislation isn’t quite as readable as your example seems to suggest - the definition of a “young individual” is in Reg 2 of the HB Regs and you need to have some understanding of the provisions of the Children Act to make sense of it.

The simplest and probably most common route is that they won’t be a “young individual” for the purposes of Reg 13D if they were “formerly provided with accommodation” under s20 - it doesn’t matter when it stopped or how long it lasted. If your young person continued to be provided with accommodation beyond 18 then one of the other exemptions might also apply, but mostly it’s likely to be s20. If in doubt, speak to Children’s Services (although there’s no guarantee they will understand the legal framework behind the accommodation). And you could always check it with your HB department.

Edit: Sorry, I hit submit too soon - I was going to say that care leavers just have to have been subject to a care order. The only issue there is whether they continued in care beyond the age of 16 (for at least one night). If they didn’t then there is still a very strong possibility that they will have been accommodated under s20 at some point.

Second edit: I don’t know why I went for the HB Regs there - I think I need a break.

I think we are talking about para 29(2), sch 4 of the UC Regs.

It’s a bit of definition soup. Para 29 cross references reg 8 for the definition of a “care leaver”. Reg 8 then defines a care leaver by reference to the definition of a relevant child or an eligible child within the Children Act. These are both categories of 16-17 year old who is subject to the care of the local authority.

So where the Regs use the term ‘care leaver’, it means it in a bit of a counter intuitive way. It means someone who has been within the care system at age 16 or 17. So if your client was in care at that age and they are now under 22, they should qualify for the exemption.

Thank you Elliot and Timothy. Elliot, you are quite right we are talking para 29 sched 4, which as you rightly state refers back to reg 8 for a definition of care leaver. We have two separate concepts here the physical reality of having left care and the label “care leaver”. I’m guessing that if we are playing strict definition tennis, the concept of “leaving” care is irrelevant, it is the concept of them being in care up to the age of 18 that matters. The one thing that troubles me about this is the statement in the ADM which reads (E1027)
“Note: The definition of ‘care leaver’ includes a person who did not leave care until their eighteenth birthday, provided that they fell within E1026 when aged 16 or 17.”
Which appears to put a more literal spin on leaving care…
Timothy I had picked up on the importance of s20 through Shelter’s commentary, so would that only apply to HB rather than UC HCE?
Many thanks.

I think the main point is that ‘care leaver’ was a really bad choice of words to frame the definition. The concept which the regs are trying to define has nothing to do with whether or not the person has left care in the conversational sense. You could conceive of a situation where somebody becomes an eligible child at the age of 17, having never previously been involved in the care system. They are then immediately a “care leaver” for the purposes of the regs despite never having ‘left’ anything.

The broader point is probably that this is one of those cases where digging into the regs will get you nothing but a headache and if you can get a letter from the social work team confirming that the client was under their wing at some point during ages 16-17, that is probably going to get the job done.

Many thanks. A headache is just what I have got!

Chrissum - 03 December 2020 02:53 PM

Timothy I had picked up on the importance of s20 through Shelter’s commentary, so would that only apply to HB rather than UC HCE?

Yes, I’m afraid this is another of those cases where UC is less generous than HB.

I would echo Elliot’s point that “care leaver” is unhelpful. The definition includes eligible children (who are still looked after) and relevant children (who were eligible children but are not looked after any more).

It’s made more confusing by tautology in Para 29 Sch 4 - somebody who was an eligible or relevant child before they were 18 is an excepted person for shared room rate. Eligible and relevant children are still 16/17. I don’t think you can be an 18 year old relevant child - you become a former relevant child.

So a 16/17 year old can be a UC “care leaver” if they are still in care (eligible child) or if they have left care (relevant child). And then they will be an excepted person from 18 to 21.

I think it’s worth noting that all of these categories of young people would be entitled to have a personal adviser, pathway plan, etc. and there might well be a budget allotted to them - definitely worth speaking to Children’s Services to find out what they’re doing to help (especially if the young person has education plans).

We used to deal with quite a few of these enquiries from our social workers (looking for advice as to whether these young people could claim benefits or not) when the 2000 Care Act came out and it took a while for us to get our heads around.  As Eliot says the term “care leaver” can be misleading as it has different, although often overlapping, implications for the purposes of LA obligations under the Children Act 1989 and for claimants’ rights under benefit statutes. 

And, as Eliot also rightly says, fitting within the statutory definition of “care leaver” (to be found in s23A and para’ 19B of schedule 2 of the Act) does not involve “leaving” anything.  So, echoing Eliot’s advice, “if you can get a letter from the social work team confirming that the client was under their wing at some point during ages 16-17, that is probably going to get the job done”.

A care leaver is one of the following.

Eligible children
• aged between 16 and 17.
• between your 14th birthday and after your 16th birthday, you were looked after for at least 13 weeks, or periods adding up to 13 weeks unless this was planned respite care;
• you are still looked after.

Relevant children
• aged 16 or 17;
• you have left care (i.e. no longer being looked after);
• but before leaving care you were an eligible child (see above);
• also includes you if you are detained in the criminal justice system, or in hospital;
• also includes you if you returned home but that has broken down and you return to the local authority for help before your 18th birthday.

Apart from the counter-intuitive labels, confusion also stems from the fact that there are two completely different reasons why you would want to know whether somebody is/was a care leaver.

The first issue only affects 16/17 year olds, and it is whether they are eligible to claim UC at all.  Certain categories of 16/17 year old are eligible for UC generally, but not if they are a “care leaver”.  This applies to 16/17 year olds who care for a severely disabled person, who are without parental care or who are pregnant with <=11 weeks to go.  In simple terms, some 16/17 year olds cannot get UC while they are still eligible for support under the Children Act

Once you get over that hurdle, there is then the question of how much UC you are entitled to and in particular whether you are an “excepted person” for the purpose of the LHA rate.  This applies to someone who is “at least 18 but under 22” and who was a care leaver at any time time before they reached 18.  The focus of para 29 is not really people who are still 16/17, it is more in the way of a parachute provision for those who have left the care system but not that long ago and are still finding their feet.

This appears at first sight to leave a lacuna for 16/17 year olds who are able to claim UC in the first place and who would, if they were 18, qualify for exemption from the shared LHA rate.  These are 16/17 year old care leavers in the Reg 8 categories who are not excluded from UC: those with LCW or awaiting an LWC determination; and those with a child or whose partner has a child.  For those with a partner or a child, the shared accommodation LHA rate is irrelevant, but it seems you could be 16/17, still a care leaver, entitled to UC because you have LCW, but not exempt from the shared accommodation LHA.  Presumably Children’s Services would have to pick up the tab if such an eventuality ever arose for real.  It must be incredibly rare.