Regulation 21 (3) (b) and (c) 

Help!  I have been looking at this regulation in connection with shared care and the bedroom tax (although I am more and more feeling that membership of the household as opposed to occupant is not the relevant issue in relation to the bedroom tax).  However, I really cannot make sense of the regulation quite apart from the bedroom tax.  As we have discussed before, (b) seems to imply that a foster child is never a member of the household, nor, since 2010 an occupant.  Well there are some difficulties with this but given that Reg 21 seems to be mainly in relation to Applicable Amount and that foster parents are supported in a different way, fair enough.

But what about 21 (3) (c)?  It says that a child ” placed for adoption” - and it looks like a permanent placement since 21 (3 ) (b) deals with children placed prior to adoption - is also not a member of the household nor, since 2011, an occupant.  I have always assumed that once a permanent adoptions is made, that child is quite simply a member of the family for CTC, ChB, and all benefit purposes, exactly as a birth child would be.  Is this not the case?  There must be someone out there who deals with adoptions and is able to explain this to me
Ruth

“placed for adoption” is not “adopted”  - the child isn’t adopted until after the court order is made, is with the family with a view to being adopted by them but without, as yet, the legal bit of paper saying that’s done.

but quite why a child placed for adoption wouldn’t count for this purpose is beyond me

Re adoption: is it because Childrens Services still make some kind of payment to the family until the paperwork is complete?

More generally, the link between this Reg and the size criteria was set out in the original Swale and Marchant case.  The starting point with the size criteria (and bedroom tax is no different from private sector size criteria in this respect) is that the Council has to include anyone who occupies the dwelling.  To do this it applies Reg 7 from the perspective of the potential occupier.  Reg 7(1) tells us that a person occupies the dwelling s/he normally occupies with his/her “family”.  In the case of a child, membership of the family depends on someone being “responsible” for him/her and that in turn requires the child to be a member of the person’s “household”.

The amendment for foster children was to close a loophole: a foster child does not belong to any “family2 for HB purposes and could therefore be counted as a single “occupier”.  So Reg 21 was amended to prevent that from happening.

Thanks for both replies - I think this can be the only explanation.  Possibly the process of adoption is more long-winded than I thought. So there is “placing with the claimant and his partner prior to adoption” which is 21(3) (b) and ” placed for adoption with the claimant or his partner” which is 21 (3) (c) and then at some point in the future there is actual adoption where I presume they become a family member!

On the Swale issue and foster children, yes, I stumbled across this when trying to make sense of Swale.  The history of this amendment relating to foster children is very interesting.  They were always excluded from the member of the household but the addition ” nor as occupying the claimant’s dwelling” was added in 2010 following a case Wirral MBC v AH and SSWP [2010] UKUT 208 (AAC).  In that case Judge Ward came to a resounding yes on foster children, but unfortunately No on shared residence. ( I think there was a Rightsnet thread on this at the time). In this case, foster children, (but not children with separated parents), were found to be occupiers, and therefore entitled to a bedroom under LHA rules, but an amendment was then made to Reg 21(3)(a).

However, I have been spending all weekend looking at Swale and the more I look at it the more I think it is plumb wrong! As far as I can see it takes Reg 7 and Regs 19 to 21 together to say that only a child who is a family member can be an occupier. But if by definition no-one who was not a member of the household could be an occupier there would have been no need at all to amend the regulation.  In fact, when you look at Regulation 3, which distinguishes non-dependants from other people who ” live with” the claimant but are not family members, it makes reference to children in this situation.  As ” live with” is enough to make a non-dependant an occupier then it must be enough to make a child an occupier.  Apart from foster children I can imagine that it includes children who are supported by an absent parent (perhaps working away from home) but living with a grandparent or other relative.  I would argue that we can include children of separated parents in this category. 

But whether we do or not, it seems to me to make nonsense of the Swale decision that a child has to be a family member to occupy a dwelling.  We know that foster children have been taken care of by B 13 (6) but what does happen to the child placed for adoption?  Is s/he treated as an honorary foster child?  And what does happen to the grandchild in the situation I have outlined above? 

Ruth

I think we need to look at occupiers as two groups.  The smaller, inner group is the “family” which means the claimant, partner and dependent children/YPs.  Here the household membership issue is crucial because a child can only be one person’s responsibility at one time, can therefore only be a member of one “family” and can therefore only occupy one dwelling (except where Reg 7(6) applies).  The definition of “family” in s137 of the Conts & Bens Act is where the requirement that a child belongs to the “household” appears.

The wider group of occupiers includes people who are not family members (either in this household or any other household).  It doesn’t really matter what other label is attached to them.  The test is whether they occupy this dwelling as their home.  They are mostly (but do not have to be) non-deps.  Before the amendment in the wake of the Wirral case, foster children fell into this wider group of occupiers but now they don’t because Reg 21 says they cannot.

The problem in the Swale case was not merely that the child didn’t belong to the claimant’s family, the real problem was that the child did belong to someone else’s family and therefore occupied that other family’s dwelling instead of the claimant’s dwelling.  That problem doesn’t arise with people who are not part of another family elsewhere (like foster children, hence the amendment).

But the Article 8 argument remains: even though cases like Humphreys and TD v Richmond have certainly set the bar very high, there hasn’t yet been a case that recognises the different nature of HB from cash subsistence benefits and focusses purely on Article 8, with or without indirect gender discrimination.  That presumably is what the Lioberty JR will look at.

Yes, HB Anorak, I see what you mean.  I had misunderstood the basis of the Swale decision. (Shucks, spent all weekend composing a submission on the wrong basis). I still think it is perverse to marry Reg 7 which is all about physically living somewhere with Regs 19 to 21, which (imho) are all about the family as an economic unit for the purposes of establishing Applicable Amount. Still, as it’s binding case law, there’s not much we can do about it.  I agree that, as Swale did not deal with ECHR at all (although TD v SSWP did) we can still look at Article 8 standing alone and/or along with Article 14 and justification arguments. I am wondering whether the stronger argument about discrimination is not that it is indirectly against men,  but that it is directly against children of separated parents (failure to treat people in different circumstances differently), given that there are strong national policy reasons for the interests of children to be paramount. 

On the other issue, I wonder what is actually happening where children are placed prior to adoption? The children are not occupiers nor are they fostered so it doesn’t look to me as if they are entitled to a room.  Does anyone dealing in this area of work know?  Ruth  

Ruth

I don’t understand the difference between Reg 21(3)(b) & (c) either.  However, a claimant is entitled to an extra bedroom where they are a ‘relevant .. qualfying parent or carer’ - see Reg B13(6)(b).  The definition of ‘qualifying parent or carer’ in Reg 2 includes someone who has a child placed with them ‘as mentioned in Reg 21(3)’.  Therefore,  people with children placed with them prior to adoption are allowed an extra bedroom.

I’m not clear what happens if someone was to have a group of children placed with them as the extra bedroom seems to go with the ‘parent’ rather than the child.  I’m sure I’ve looked into this before but I can’t remember what I thought.  They might have to rely on DHPs until the adoption order.

Tony

Yes, we did discuss this before Tony and we came to the conclusion that the regs only allowed one room.  This has been confirmed for me by the most recent guidance on DHPs where one group given priority for DHPS are foster parents caring for more than one foster child.