Manchester City Council v NG

Child-care charges may be disregarded in calculating housing benefit only where they are paid for care that is actually provided. Payments made solely to reserve child-care places while the provider is closed do not meet that requirement. The pandemic does not give a tribunal power to deem care to have been provided when it was not.

The claimant continued to pay a child-care provider during the Covid-19 lockdown in order to retain places for his children, although the provider was closed. The local authority decided that the payments could not be disregarded as relevant child-care charges and found an overpayment of housing benefit for the period from 23 March to 13 July 2020.

The First-tier Tribunal allowed the claimant’s appeal, treating the payments as child care provided in the exceptional circumstances of the pandemic. The local authority appealed. The issue was whether payments made to reserve places during a closure were charges for care provided within regulation 28 of the Housing Benefit Regulations 2006.

1. Appeal allowed. The First-tier Tribunal erred in law. Its decision was set aside and remade so as to confirm the local authority’s decision of 9 December 2020.
2. Regulation 28(1) permits deduction from income only of relevant child-care charges. Under regulation 28(5), charges qualify only if they meet the requirements in regulations 28(6) and 28(7).
3. Both regulations 28(6) and 28(7) require payment for care which is provided. This is an actual requirement, not one which may be satisfied by treating unavailable care as provided because of the pandemic.
4. The provider was closed during lockdown and the First-tier Tribunal found that no care was provided. The claimant’s payments preserved the children’s places but were not payments for care provided. They were therefore not relevant child-care charges under the Housing Benefit Regulations 2006.
5. The resulting housing-benefit overpayment decision was correct in fact and law.

• Upper Tribunal (Administrative Appeals Chamber): allowed the local authority’s appeal, set aside the First-tier Tribunal’s decision under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, and remade it in favour of the local authority.
• First-tier Tribunal (Social Entitlement Chamber): allowed the claimant’s appeal, holding that the payments constituted child care provided in the particular circumstances of the pandemic.