At least two rearlier long threads about this here:
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_mesg&forum=102&topic_id=7007&mesg_id=7007&listing_type=search
and here:
http://www.rightsnet.org.uk/dc/dcboard.php?az=show_mesg&forum=102&topic_id=5562&mesg_id=5562&listing_type=search
(sorry, don't know how to shorten links).

Issue is whether foster children count as 'occupiers' for the purposes of establishing eligible rent for LHA. R -v- Swale BC ex p Marchant is a unhelpful 1999 case on related question of whether child in shared care arrangement between parents counted as an occupier for the old RO size criteria.

I now have a case going to tribunal under LHA rules using all the arguments rehearsed in the threads above.

My problem is that I have a copy (from BAILII) of R-v- Swale BC at High Court level but I have been quite unable to locate a copy on line of the 2000 Court of Appeal judgment in the same case - <2000> 1 FLR 246, CA is the citation in CPAG which includes a quote from the decision in the notes at p.522.

Does anyone have a copy or know where it is to be found?

Richard Atkinson

I have emailed a copy of the CA version to Sean for publication

Thankyou very much

Richard Atkinson

thanks to stainsby, here'es the CA judgment ...

http://www.rightsnet.org.uk/pdfs/R_v_Swale_ex_p_Marchant.pdf

Hello
I just wondered if your appeal had been heard and the outcome.
I have a similar case it the moment. We submitted an appeal to the local authority and in their response stated that the appeal was misconceived. As a result of this the Tribunal Service have written to me asking for comments to support my appeal before they decide whether to admit it or not. The argument of the local authority is that as the foster child is not treated as member of a household under Reg 21, he cannot be classed as an occupier. My appeal relied on Reg 13D(12) definition of occupier.

Cheers

Appeal was succesful at hearing last week. Our Finance Dept. may appeal to UT to get further clarification since national LHA guidance is quite explicit (and quite wrong) in saying that foster children cannot count towards the number of occupiers for LHA.

We used 13D(12) but also, as an alternative, an argument under Reg.7 to the effect that if foster children were not members of a family, Reg.7 required them to be treated as occuying which ever accommodation they normally occupied.

13D(12) is interesting because it appears to give a quite separate definition of occupier, without reference to membership of a family, thereby getting round the decisions in Marchant on shared care.

However I think foster chldren can be occupiers under either Reg.7 or Reg.13D.

The LA have a cheek saying your argument is misconceived; it is clearly a very live issue.

Richard Atkinson

Hi Richard

I just wondered if the finance dept had appealled to upper tribunal re your case on LHA and foster children. The lower tribunal chair admitted our appeal after the housing benefit section said it was misconceived and we are waiting for a date from the tribunal service.

Would you mind keeping me informed of the progress of this case as mine relates to the same issue.

Cheers
Pam

They have e-mailed us to say that they will be applying for leave (but happily not suspending payment of the enhanced LHA) this week. The Tribunal decision is not very well written so difficult to defend but it won't really matter; the UT Judge is likely to effectively remake the decision whichever way it goes.

I am fairly confident about the result but have an ominous feeling that if we win they will just amend the regs.

Anyway, yes, I will let you know how it is going.

Richard Atkinson

Fri 29-May-09 02:08 PM by Kevin D

I'm not sure how relevant, if at all, it may be, but CH/2337/2008 *may* be of interest (on the UT/Cmmrs site).

Frankly, I'm not convinced it was correctly decided. But then again, I'm not a Judge.... .

Well, yes, interesting. Not only does Judge Williams follow Rightsnet he references this very thread! Is he out there now I wonder? A pre-LHA case on quite different facts but nonetheless a neighbouring part of the continuous, but not seamless, fabric that constitutes the legal system which we all serve. Thanks for the reference.

Richard Atkinson

Okay - if I were the LA appeals person - this is what I would advance - notwithstanding the other points poisted...

All payments made to foster carers are disregared as per Sch 5 - para 26

If the child is to also feature in the LHA - Why would the government disregard the payments made by the LA to the foster carers? My arguement would be to ask the Tribunal (upper or lower) to observe a purposive approach to the law - ie. the foster carers are being givn two bites of the cherry, and if the child was to count in the LHA - then what is the purpose behind the disregard?

Not saying I am right of course, but I could make an arguement (not to sure how much water it would hold, but that would be my thrust!)...

Hope this assists in preparing arguement either way though!!

We have already argued this point using the Guidance on the national minimum fosteribng allowance, available here:
www.portsmouth.gov.uk/media/cyps20061113r4b.pdf
(doesn't seem to be on the DCSF site any more).

This is less than completely clear about housing costs but para.1.9 certainly makes it arguable that additional housing costs aren't covered in fostering allowances, so no double payment.


Richard Atkinson