London Borough of Waltham Forest v PO

For housing benefit purposes, an approved foster carer is entitled to the additional-bedroom protection in regulation B13 while a child or qualifying young person is placed with her. During a gap between placements, the 52-week protection runs from the earliest applicable statutory event. Reapproval does not restart that period.

Where a young person remains in the home after turning 18, the tribunal must consider whether she is a qualifying young person or a non-dependant and whether any deduction applies. Entitlement and overpayment questions require investigation of the relevant dates and circumstances, rather than proof merely of continuing foster-carer approval.

The Council appealed against a First-tier Tribunal decision concerning the respondent’s housing benefit. The First-tier Tribunal had treated her as an active foster carer and concluded that no overpayment arose from the bedroom-related deduction.

The Upper Tribunal considered the effect of the Housing Benefit Regulations 2006, the placement provisions of the Children Act 1989, foster-carer approval provisions and the rules governing qualifying young persons, non-dependants, information requests and recoverable overpayments. The central issue was whether the First-tier Tribunal had addressed the dates and legal status relevant to each placement and any intervening period.

1. Appeal allowed. The First-tier Tribunal’s decision of 12 March 2019 was set aside for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The case was remitted to a fresh tribunal for an oral rehearing.
2. The tribunal had wrongly treated continuing approval as a foster carer as sufficient to determine the bedroom deduction and overpayment issues. It had to establish the dates of each placement, the dates of birth of the young women concerned, whether each was a qualifying young person, whether any gap exceeded 52 weeks, and whether a non-dependant deduction applied after a young woman turned 18.
3. For periods when a young woman was living with the respondent, including periods after her eighteenth birthday, the respondent was entitled to an additional bedroom in respect of that person. The applicable deduction under regulation B13 was therefore 14%, subject to the statutory classification of the person occupying the home.
4. For periods without a placement, the 25% deduction could begin only from the earliest of 52 weeks after the previous placement ended, 52 weeks after the young woman ceased to be a qualifying young person, or 52 weeks after her eighteenth birthday. The 52-week period could not be restarted by an ordinary reapproval process. The period relating to a previous placement could not begin before the young woman moved out.
5. The respondent’s original approval under regulation 28 of the 2002 Regulations did not prevent her from satisfying the definition of qualifying parent or carer. The approval was treated as continuing under the 2011 Regulations after repeal and replacement.
6. Information requests had to be assessed within the cooperative process of investigating benefit entitlement described in Kerr v Department for Social Development [2004] UKHL 23. Relevant information could properly be requested, but confidentiality concerns, particularly concerning minors, required proportionate handling. The respondent was directed to provide specified information, with an option to seek approval before disclosing VA’s full name.

• Upper Tribunal (Administrative Appeals Chamber): allowed the Council’s appeal and set aside the First-tier Tribunal decision under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. The matter was remitted to a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 12 March 2019 allowed the respondent’s appeal against the Council’s housing benefit decision and concluded that no overpayment arose.