Foster children

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    The draft LHA guidance says of foster children (with Reg numbers updated from the 1987 Regs cited in the guidance):

    [i:bf3ce4c056]”Their family is defined in section 137 and includes those for whom the claimant is responsible. This term is defined in HB regulation [20], and HB Regulation [21] determines those for whom the claimant cannot be held as being responsible. Foster children are included in HB Regulation [21(3)] as it is the local social services who are responsible for the child they have placed in the claimant’s care. The foster child can not be a member of the claimant’s family and so does not ‘occupy’ the dwelling for the purposes of HB Regulation [7(1)]. Foster children should not be treated as being members of the claimants’ household, therefore not treated as an occupier and consequently not included under the size criteria.” [/i:bf3ce4c056]

    I wonder whether this is correct? The size criteria in the draft LHA Regs are structured as follows:

    – Reg 13D(2)(c) says the claimant is entitled to the number of bedrooms specified in para (3)
    – Reg 13D(3) allocates bedrooms to each “occupier”
    – Reg 13D(12) defines “occupier” as the people who ocupy the dwelling as their home, except joint tenants.

    The guidance assumes that a foster child cannot occupy the dwelling as its home because it is not part of the “family”, and Reg 7(1) says that a person may only be treated as occupying the dwelling where he and his “family” live, if he has a family. I don’t think this means anyone who does not belong to a “family” does not occupy anywhere as their home. What about non-dependants, for example? Or boarders and subtenants? They too do not fall within the s137 definition of a “family”, but they are supposed to be counted as occupiers according to the guidance.

    I think the guidance is relying too much on the case of Swale and Marchant, where a father with shared custody could not have his children included as occupiers on an RO referral because they were members of their mother’s “family”, so that was where they lived. The point about Marchant was that the children could only occupy one home, and family membership was the deciding factor in picking the right one. But foster children are different – some foster children stay with the same carer for years and they cannot conceivably be said to occupy any other home – there is clearly only one candidate for the normal home in such cases.

    In conclusion, if the term “occupier” in Reg 13D is limited to “family”, then it cannot cover non-deps and lodgers; on the other hand, if the term is wide enough to embrace non-deps and lodgers, it must also cover long term foster children as well in my view.

    Any strong views either way on this one? We have about two weeks before the Regs are released so there is not long to fix bugs. I think this is a bug.


    I think you have raised a very astute point there Peter.

    The point I don’t like in the guidance is the correct assertion that a foster child is not part of the claimant’s family, becoming the (unlikely) position that they therefore “should not be treated as being members of the claimant’s household”. There is a distinction between “family” and “household”.

    As you point out non-dependants are not defined as members of the family, but are classed as “occupiers” nonetheless, so why does the guidance make this apparent distinction?

    It would appear that DWP subject the definition of “occupier” in Draft Regulation 13D (12) to Regulation 7 (1) of the existing regulations, “Circumstances in which a person is or is not to be treated as occupying a dwelling as his home”, but Draft Regulation 13D (12) does not explicitly make reference to the earlier regulation.

    My opinion therefore follows –

    If Reg. 13D (12) is intended to be subject to Reg 7 (1) then there is “a bug” as this would not allow non-deps to be occupiers, and therefore DWP guidance is wrong, or if Reg 13D (12) is not intended to to be subject to Reg 7 (1) there is not a bug and the DWP guidance is still wrong, but this time only in respect of foster children.



    Thanks for that Richard.

    Coincidentally, the same point was made today on [url=]Rightsnet[/url] concerning the existing RO referral scheme. Glad to discover it’s not just me on this one!


    This issue has been quietly driving me mad!!

    The interesting debate on rightsnet with regard to the current scheme is centred on the fact that the HB regulations do not define the word “occupier”.

    For the current scheme the DWP Guidance Manual (Chapter 10.100) advises that although “occupiers” are not defined, the Rent Officer Function Order states an occupier is “a person….who is stated, in the application for determination, to occupy the dwelling as his home.”

    The GM then goes on to advise that these would be “all the people who occupy the dwelling covered by the tenancy” –

    • Joint tenants
    • Claimant, partner and family
    • Non deps as defined in Regulation 3
    • Persons making commercial payments to the tenant in order to occupy the home

    GM 10.116, advises not to include foster children as they are excluded from the claimant’s household by Reg 21 (3).

    However the claimant has no responsibility for non-dependants either but they are included (presumably because they normally reside with a claimant under Reg. 3) Sub tenants etc. are not part of the claimant’s family, and are not non deps either, but again they are included as “occupiers”.

    Of course the GM is only guidance, and without the definition of “occupier” it remains such, although this point from the Marchant decision (para.42) is worthy of consideration regarding foster children.

    “Foster children are provided for by a fostering allowance, in fixing the appropriate levels for such allowances, every consideration of the cost of such fostering can be taken into account including the fact that such a child may not count as occupiers for the size criteria and that housing benefit for the family may be less than otherwise would be considered necessary.”

    But – SI 2007/2868 is now with us and this does have a definition of “occupier”, at least for the purposes of Regulation 13D. The definition is unchanged from the draft regulations as meaning “the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant’s household.”

    So, if we apply this definition as it relates to Reg 7 it could be that only members of the claimant’s family can be occupiers, and no bedrooms are allowed to non deps, sub-tenants or anyone else.
    This is Peter’s bug, and I think it needs a re-think or at least a steer from the DWP on which persons a relevant authority can be satisfied are occupying the home.

    I note that the DWP LHA guidance that inspired this thread states “Reg 7 (1) requires the claimant and their family to occupy the dwelling as their home.” As Kevin D has kindly pointed out to me today (in a PM regarding the thread on non-dep soldiers) it doesn’t – In fact it refers to a person rather than a claimant.


    I have now taken this issue up with DWP and received the following reply –
    [i:c364e127c0]”The size criteria is defined for the purposes of reg 13D(2)( c ) as having the meaning specified in article 2 of the Rent Officers Order except that the word “occupier” is to be construed in accordance with the definition of “occupiers” construed in [this] paragraph (regulation 13D(12).

    The definition of “occupiers” is then defined in reg 13D( 12 ) as well as meaning “the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant’s household”.

    This means that the person that you are making the decision about has to satisfy two requirements:
    1) that they occupy the dwelling as their home; and
    2) that they are a member of the claimant’s household.

    Both are matters of fact which the authority need to make an assessment on themselves.

    In determining whether the person occupies the dwelling as his/her home the authority should refer to reg 7 , in particular reg 7 (2) – whether the person occupies any other dwelling as their home.

    The other question is whether the person is a person who is a member of the claimant’s household. This is not a phrase that is defined but and is a matter for the LA to decide.”[/i:c364e127c0]

    So this confirms that occupiers in Reg 13D (12) can include non members of the family and that Foster Children can remain a hotly contested issue!


    The DWP are as specific as ever in their advice!

    I recognise the counter-arguments, but my current thought is that foster children should not be taken into account in deciding the relevant LHA.

    Reg 13(12) refers to an occupier occupying the home to which the ‘claim or award relates’.
    Non dependants, sub-tenants etc are all taken into account in determining the benefit award.
    However, foster children are excluded from the claimant’s h/hold & payments in respect of them are disregarded. In which case, they don’t appear to me to effectively relate to the claim or award. Consequently, they are excluded from the defintion of occupier.

    Does anyone else agree?


    I must be missing something because I still cannot see where the second requirement mentioned by DWP comes from. The only reference to ‘household’ in the definition of ‘occupier’ excludes non-householder joint tenants from the calculation; it doesn’t exclude anybody else who isn’t included in the household.

    It seems quite straightforward – if the foster child/ non-dep/ whoever occupies the claim address as their home they are included in the bedroom calc. References to family and household, besides the narrow exclusion above, don’t appear relevant.(??)


    Agree exactly with cbuck. The reference to “household” is quite clearly part of the bit that excludes joint tenants.

    And as for the dwelling to which the “claim or award” relates: that part of the definition is identifying the dwelling, not the people who live in it. To exclude foster children for that reason, you would have to say that they are not in the dwelling – well where are they, then? Or to turn it around, what dwelling is the claimant claiming HB for if it does not include any bits that are frequented by foster children? No bathroom with foster-splashes? No carpet fibres besmirched by foster-crumbs or foster-jam? How exactly would you isolate the claimant’s dwelling from the entirely separate dwelling where foster children live? Can’t do it.

    As an appreciative recipient of lots of really good DWP advice, I do not wish to appear negative. But I really think they have got this one wrong. The definiton of occupier could easily be amended between now and April. If it is not amended, I would feel happier representing a claimant than an LA on this issue at Tribunal.

    Julian Hobson

    I agree and sorry to raise this again but the DWP’s advice is based on a very poor reading of the regs.

    It looks to me as the definition of occupier was drafted quite well, it recognises that a Joint Tenant might actually be a member of the claimants household (partner or anyone else for that matter including dependents) and recognises that by using the words “Joint tenant” alone might confuse matters, anticipating that it then refers to JT’s who are not otherwise part of the household.

    For all the reasons said by the others here, foster children are definitely included unless the regs change to specifically exclude them.

    I also think it strange to suggest that a foster childs “home” is not with the foster parent, where is it then?

    1. A local authority care home somewhere ?
    2. The empty house that deceased mum occupied before she killed herself?

    It doesn’t really help the child or perception of fostering if the temporary “home” that they without doubt “occupy” is considered to be so temporary or transient as to offer no security at all.

    This is really important stuff in terms of social policy and whilst I understand the concept that the foster carer gets a payment for accomodating the child for as long as they occupy the dwelling (and HB shouldn’t pay again), the wording of the regs doesn’t prevent it and I can’t be expected to make up my own rules. Neither should DWP be trying to make the regs fit, they don’t.

    lesley turton

    Does anyone know of any developments on this subject?

    Salford is a 2nd wave pathfinder and I’ve just received our first appeal against the non-inclusion of a foster child when deciding the appropriate LHA rate and I’m starting to go through the regs and wondered if this had been tested at all?


    No Lesley. Nearly every independent adviser disagrees with DWP guidance on this point so a test case would be good. It needs to go to Commissioners quickly I think.

    If it does I would suggest you ask the Secretary of State to join the case ( am sure you know this). However, whether the S of S lawyers will then change their mind ….


    Bumping this one again- does anybody know if there have now been any appeals about this yet?



    [i:f55031a664]*one last desperate try!!! Anybody??*[/i:f55031a664]


    Thought I’d bounce this up again to see if anyone is aware of any cases going to the Upper Tribunal on this.

    We’ve had a case where a claimant is not happy because we’ve not allowed a room under LHA for a foster child, and she’s argued that at least two other neighbouring LA’s are paying them.

    We had previously acted on the DWP guidance (which was included in the manual written up by our training staff to help staff with LHA), but looking through the regs and the above posts, I agree with the posts above, that the DWP’s guidance is wrong.

    Has anyone had any further advice on it, or refused to pay but ‘encouraged’ the claimant to appeal to get it challenged at a higher level for an outcome?

    Julian Hobson

    I don’t think this really needs any further debate. I have had a quick squint at the earlier replies (including mine) and they are all pretty silent on the obvious:

    Foster children are Non deps and so must be occupiers for LHA in the same way as any other non dep.

    Reg 3 defines non dep at 3(2)(c) as including any child or young person not a member of the household by virtue of reg 21.

    Reg 21 (3)(a) refers to foster children.

    I suggest you just erase the DWP guidance from your mind !

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