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Neutral Citation Number: 2010 UKUT 208 AAC
Reported Number:
File Number: CH 1608 2009
Appellant: Wirral MBC
Respondent: AH
Judge/Commissioner: Judge C G Ward
Date Of Decision: 24/06/2010
Date Added: 03/08/2010
Main Category: Housing and council tax benefits
Main Subcategory: occupation of the home, two homes and temporary absence
Secondary Category: Housing and council tax benefits
Secondary Subcategory: rent restrictions
Notes: Reported as [2011] AACR 6. Housing benefit – maximum rent and occupation of the home – meaning of “occupier” for local housing allowance purposes – shared care of child – whether foster child occupier of home (Note: Regulation 21(3) of the Housing Benefit Regulations 2006 was amended with effect from 1 November 2011 by SI 2010/2449 to reverse the effect of this decision in relation to foster children.) The appeals in CH/1608/2009 and CH/3000/2009 concerned whether a child who is the subject of a fostering arrangement under section 23(2)(a) of the Children Act 1989 should be taken into account in determining the number of bedrooms to be reflected in the calculation of a claimant’s local housing allowance (LHA) for housing benefit purposes. The appeal in CH/247/2010 concerned the treatment for LHA purposes of a child who spent equal time with each of two separated parents. In all cases there was no dispute that under regulation 12A of the Housing Benefit Regulations 2006 the maximum rent was the local housing allowance determined by the rent officer. By regulation 13D (introduced from 7 April 2008) the level of the allowance fell to be calculated by reference to the number of bedrooms to which the claimant was entitled in accordance with regulation 13D(3). Regulation 20 of the 2006 Regulations provides that where a child or young person spends equal amounts of time in different households, or where there is a question as to which household he is living in, he shall be treated as normally living with the person who is receiving child benefit in respect of him. Regulation 21(3) provides that certain foster children placed with a claimant or his partner under Children Act 1989 or other relevant legislation shall not be treated as members of the claimant’s household. It was submitted for the claimants in all three cases that the LHA system introduced by regulations 13C and 13D contained a self contained provision, so that the question of who were “occupiers” within 13D(12) was a matter of fact. In CH/1608/2009 and CH/3000/2009 it was argued that if regulation 13D did not create a self-contained test, and one had to apply the regulation in the context of the 2006 Regulations as a whole, then regulation 7 on its true construction still meant that foster children were to be taken into account. Held, dismissing the appeal (by the local authority) in CH/1608/2009 and that in CH/247/2010 and allowing the appeal (by the claimant) in CH/3000/2009, that: 1. there was nothing in regulation 13D that suggests that it was intended to create a self-contained provision, and so it did not introduce a significantly different approach to when a person occupies a dwelling as his or her home from that taken by the Court of Appeal in R v Swale BC ex parte Marchant [2000] 1 FLR 246; (2000) 32 HLR 856, where it was held that the scope of regulation 5 (the predecessor to regulation 7) was not limited to considering a claimant’s benefit entitlement (paragraphs 22 and 23); 2. since Swale is binding authority on the Upper Tribunal, it followed that the appeal in CH/247/2010 must fail as regulation 20 fell to be applied and the child was to be treated for the purposes of regulation 13D as normally living not with the claimant, but with her father, who was in receipt of child benefit, and therefore within the “family” of her father; and so, by regulation 7, treated as occupying as her home the home normally occupied by that “family” (paragraph 24); 3. since, by virtue of regulation 21(3)(a), a child who is fostered is not to be treated as a member of the claimant’s household, he or she cannot fall within the core definition of “family” in section 137 of the Social Security Contributions and Benefits Act and consequently the words in regulation 7(1)(a), which address only where a person “is a member of a family”, have no applicability and a foster child must be treated in accordance with the remainder of regulation 7 as occupying as his or her home the dwelling he or she normally occupies (paragraphs 25 to 27); 4. the exclusion effected by regulation 21(3) from the “household” is a limited one, and must be taken to have been chosen advisedly and it could not be implied into the detailed drafting of regulation 13D that the word “child” in paragraph (3) referred in context to a child who was a member of the claimant’s household (which would exclude foster children) (paragraph 29).
Decision(s) to Download: [2011] AACR 6 ws amended.doc [2011] AACR 6 ws amended.doc