Statutory Instrument 2008/3157

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    Graham Keys

    Someone has just pointed out a problem with this one that I’m hoping someone can help with.

    We have various customers who have had children placed with them by Social Work. They are all relatives who have been taken away from their parents e.g. grandparents looking after grandchildren. It is not a fostering or adoption arrangement, all the children are intended to go back to their parents at an undetermined date in the future.

    The Social Work department pays allowance usually called Link Carers Allowance or Kinship Carers Allowance to the customer for looking after the children. This is paid using Section 50 of the Children Act 1975. This was apparently revoked by the 1989 Act in England and Wales but certain sections are still in effect in Scotland, including Section 50.

    Social Work wanted these payments disregarded in full. After a lot of discussion we decided the best we could do was use para 25 of schedule 5 to disregard the amount over the dependant’s allowance.

    However, reg 5(6)(d)(i) of this instrument deletes the provision we used as part of a tidying up exercise. I’ve been shown an email from CPAG which suggest the DWP did not realise Section 50 was still in use and did not mean this to happen.


    a) Am I correct in thinking this means we now need to count these payments in full?
    b) If so, does anyone know a way around this?


    I raised this very issue from a Scottish perspective directly with DWP in June last year and got the following brief, to the point response from a senior DWP/HB Strategy Division official

    ‘Kinship Allowance is treated in exactly the same way as Foster Allowance ie these children are ignored for HB/LHA purposes and so the income is ignored and they are not included within the size criteria for LHA purposes’

    All very well for DWP to take this approach but where is the legislation which underpins this specific guidance? Also, I am aware from previous threads (last year I think) that some doubt exists as to whether foster children should be excluded from the household for HB and latterly LHA size criteria purposes.Don’t suppose these doubts have been pursued through the appeals system otherwise we probably would have heard.

    Graham Keys

    Thanks for that.

    Not counting them in the household was the way we initially leaned but the thing that was throwing a spanner, screwdriver and 14lb lump hammer in the works for us was all the customers have claimed and get paid Child Benefit and Child Tax Credit for the kids, which is not something you expect in a fostering arrangement and Social Work have been quite clear they are not foster carers.

    Everyone seems to consider them dependants for the purpose’s of benefit, including us.

    If we follow the DWP’s advice then taking the kids out but leaving CB and CTC in will blow the claim out the water.

    Leaving the kids in but fully counting the allowance will also blow the claim out the water.

    Social Work want the kids left in but the allowance taken out.

    No option seems right to me but like you say, finding legislation is tricky.

    Julian Hobson

    Q1 – Are the children part of the claimants household ? I think reg 20 says yes if only for the fact that if there is a doubt 20(2)(a) clears it up. I would include them.

    Q2 – How is the allowance treated ? DWP’s advice to Peem is wrong. Sched 5, 25 recognised that such payments were only made to people where the person was a member of the claimants family. They are not (and never were) treated in the same way as fostering allowances. They were and should be treated in the same way as “adoption” allowances.

    This link courtesy of rights net demonstrates that the payment of CTC and CB is right and proper in these cases (but not in others).

    I wonder if you could “push it” and argue that the DWP’s amending regs are wrong and continue to apply them as writtwen before ? Perhaps the best way of doing this is to get your local Welfare rights to push the case through tribunal on that point and get the UT to rule ?

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