LHA for foster carers decision

Hi Damian

Am just getting used to the new site. You said you had attached the decision- i am probably not being too sharp- where do i find the attachment?

Rich

No its me not being too sharp - I blame the warm weather. Apparently its too big to attach. I can email it if you let me have your email address.

Ah thank you

.(JavaScript must be enabled to view this email address)

Alternatively just post a link to UT website ro wherever it was heard?

Rich

Here is the decision

A smaller version…. :-)

But the bad news is (especially for ourselves and Salford Welfare Rights Unit who were at the Upper Tribunal hearing), the DWP has announced that amending legislation will be introduced as soon as possible.

This is unnecessarily vindictive - the belief that Fostering Allowances (particularly, as in our cases, where there are no skills additions) are “generous” and cater for the extra costs of housing foster children was , after some discussion, jettisoned by the solcitor acting for the DWP at the hearing.

It is patently ridiculous that a foster parent (or parents) who then obtain a Special Guardianship order and Special Guardianship Allowance for the child(ren) will then not only have the child(ren) counted as occupiers, but would still have substantial amounts of the allowance ignored.

Similarly, in those cases where an absent parent actually stumps up maintenance, that is ignored in full, as is child benefit, so the “generosity” of the fostering allowances diminishes.

hi

here a link to today’s rightsnet news story -

Treatment of foster children in housing benefit assessment

cheers ros

The guidance as to the effective date of any superseding decision following the ruling is in my opinion wrong.  The guidance ignores Reg 8(8) of the D&A Regs which provides that:

“A superseding decision made as a consequence of a determination which is a relevant determination for the purposes of paragraph 18 of Schedule 7 to the Act(restrictions on entitlement to benefit in certain cases of error) shall take effect from the date of the relevant determination”

The equivalent provision in the Social Security and Child Support (D&A) Regs was considered in CDLA/2803/2009

The effective date of the supersession should in all cases involving a determination as to whether or not foster children are occupiers should therefore be 24 June 2010

Just received an email from the DWP Housing Benefit Strategy Division

“....Thank you for you email querying the recent article in G11 and the recent ruling on foster children.  We have looked into this again and agree with you that Reg 8(8) of the D &A Regs applies and so the date of the relevant decision applies (i.e. the date of the ruling).  We shall be sending out revised guidance in the next bulletin…..”

How about requesting a statement of reasons to open up appeal rights again? Or has this been amended without me noticing?

It hasnt been amended, but you still have to get round all the anti test case provisions in paragraph 18 of Sch 7 of the Child Support Pensions and Social Security Act

Sorry, getting late and I’m not explaining myself properly. The anti test case rule only affects decisions on claims, supersession and revisions. This was looked at in a HB case CH 532/2006, especially see para 15. It doesn’t apply to appeals so asking for a statement of reasons and appealing could dodge the “invidious and capricious” anti test case rule, as Findlay et al refer to it.

I agree with you, and a closer reading of CH/0532/2006 gives you the means to get around the anti test case rule.  The Commisioner said at paragraph 15

“15.  However, the paragraph only applies when a decision falls to be made by a local authority in accordance with the relevant determination. Those words refer to the future, to the time after the determination has been made. It obviously does not apply to a decision taken before the relevant determination was made. It applies if the claimant asks for the decision to be revised or superseded; that is expressly caught by paragraph 18(1)(b)(ii) and (iii). But it does not apply to an appeal against the decision. An appeal is a separate process from revision and supersession and there is nothing in paragraph 18 to prevent the normal operation of an appeal (described in paragraph 14) and the retrospective doctrine of precedent (described in paragraphs 6 and 7) applying to the decision of the tribunal.”

I would just add that this is not just about LHA. The reasoning is persuasive for other private tenancies (LRR/CRR) and claims involving special guardianships. I dont know enough about stranger foster carers etc to comment on others who could benefit from this decision.

The guidance issued by DWP was, rather, um, disappointing.