Burnip, Foster Carers & Service Persons

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    John Boxall

    I've been asked about this by my manager & I'm trying to get my head around it.

    Now, as far as I can see the DWP/Ministers have said that they will be amending the rules to include Service Personnell as part of the household & allow an extra bedroom for foster carers

    U2 however tells LA's to allow an extra bedroom for LHA/Bedroom Tax BUT under the LHA rules, there isnt a mechanism to permit this and they havnt said they will be changing the regulations.

    So, how are we supposed to do it – is the DWP in effect telling us how to spend our DHP fund or do they want us to make an 'ultra vires' HB award??

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    Julian Hobson

    John – I’m seeking some legal advice from our own legal folk right now. My view is they are telling us to make an Ultra vires payment in both LHA and Bedroom Tax cases. Unfortunately U2 doesn’t really help at all either because of the fact it uses terms like severe disability and links the sever disability to an inability to share a room with another. I don’t think the Gorry case says that at all. The Gorry case clearly relates to the Gorry family and I don’t think there was any doubt that the children in that case had severe disabilities but the decision in Gorry was that they had a prima face case of discrimination under article 14.
    U2 asks authorities to discriminate on the basis of disability by referrence to some criteria that do not actually exist.
    I don’t like U2 not only because of the fact I think the SoS is ducking it and asking us to do something we ought not to be doing, it also attempts to make a link between the severity of a disability and the inability to share a room.
    I think Gorry says that the problem arises because of the lack of positive discrimination on the grounds of disability in that the criteria do not recognise the difficulty sharing might present. There is no requirement in Gorry that those that might benefit from such positive discrimination might also be described as severely disabled.
    The only link in my mind that needs to be established is the need for the additional room arising out of a disability.
    I also have a problem with the categorising of disabled people by the severity of the disability without reference to any criteria. It would appear to be less discriminatory to accept that any disability regardless of how “severe” it might be could lead to the need for an additional room. To some extent that would help but even then we would be still trying to establish whether any one condition amounted to a disability, even though we would be able to drop any need to assess the severity.

    I don’t suppose this is going to be an easy nut to crack, it would have much easier to make DHP awards than it will be to assess those that have an identified need.

    nick dearnley

    And what would we do with any subsequent overpayment? The portion paid over the size criteria will be outside the HB scheme surely, and therefore not subject to the overpayment rules. How do we get it back?


    Julian says “There is no requirement in Gorry that those that might benefit from such positive discrimination might also be described as severely disabled.”

    I suspect the DWP are reading para 64 as linking the severety of disability to the need for an extra room –

    “The exception is sought for only a very limited category of claimants, namely those whose disability is so severe that an extra bedroom is needed for a carer to sleep in (or, in cases like that of Mr Gorry, where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room).”…..”Thirdly, such cases are by their very nature likely to be relatively few in number, easy to recognise, not open to abuse, and unlikely to undergo change or need regular monitoring”.

    Julian Hobson

    I think you are right but if you remove the bit in brackets it makes perfect sense.

    Easy to recognise – they have an extra room and a non resident carer that uses it.
    few in number – yes the number of folk with a disability that also have a non resident carer that needs a bedroom available, will be few in number.

    Those bits do not make sense when referring to Disabled children as in Gorry and I don’t think the judge was referring to those particularly.


    Hi Julian
    Although I see your point, I find it difficult to read para 64 as not applying to Gorry.

    In fact, it appears to me that it is important that it does apply to Gorry as the judge is explaining here why these appeals are distinguished from AM (Somalia).

    Julian Hobson

    I’d want to draw a distinction between the “disablity is so severe that” bit of the statement that clearly refers to the adults needing non resident carers, from “where separate bedrooms are needed for children who, in the absence of disability, could reasonably be expected to share a single room”.

    The “severe disability” must be distinguished from (my words) “Any disability where children could not be expected to share a single room”. In the absence of any definition as to what amounts to be a severe disability I don’t think its use here is helpful.

    I also have a problem with the idea that we look very closely at the needs of the child BUT there is no suggestion that we look at the property. When I was a child I shared a room with 3 sometimes 4 others (it was a big room). Whether a disabled child can practically share a room with a sibling might be more down to the size of the room we expect them to share than it is the severity of the disability. But what room do we look at ? We can’t look at the room(s ) in the house they currently occupy, this is about looking at whether the room(s ) would be large enough in any given alternative property that might come available.

    Decision making here is fraught with danger and I still think it easier to award a DHP than it will be to allow the room, that should never be the case, an entitlement decision should always be easier to decide than a discretionary decision.

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