Case No. UKUT-58-(AAC)

Housing benefit generally10.Since the case turns on the respondent’s entitlement to housing benefit, it is convenient to begin with the relevant housing benefit legislation. It is common ground that the social sector scheme rules (that is, the rules commonly known as “the bedroom tax”, but also referred to as the “removal of the spare room subsidy” or the ”under-occupation charge”) apply.11. It follows that under reg. B13(1) of the Housing Benefit Regulations 2006, S.I. 2006 No.213, as amended, a maximum rent must be determined in accordance with paragraphs (2) to (4). Under reg. B13(2):“The relevant authority must determine a limited rent by –…(b) where the number of bedrooms in the dwelling exceeds the number of bedrooms to which the claimant is entitled in accordance with paragraphs (5) to (7), reducing that amount by the appropriate percentage set out in paragraph (3) …”.12.The appropriate percentage in reg. B13(3) is 14% if the number of bedrooms in the property exceeds the number of bedrooms to which the claimant is entitled by one and 25% if the excess number of bedrooms is two or more.13.Reg.B13(5) concerns people who occupy the property as their home. The claimant is entitled to one bedroom, in addition to his or her own bedroom, in respect of various categories of such people, including “a person who is not a child”.14.The claimant is also entitled under reg. B13(6) to one additional bedroom in specified circumstances, including the case where “a relevant person is a qualifying parent or carer”. The definition of “relevant person” in reg. B13(9) includes the claimant.15.Other relevant definitions are found in reg.2. ”Qualifying parent or carer” is defined to mean:“… a person who has a bedroom in the dwelling they occupy as their home additional to those used by the persons who occupy the dwelling as their home and who –(a)has a child or qualifying young person placed with them as mentioned in regulation 21(3) who by virtue of that provision is not treated as occupying their dwelling; or(b)has been approved as a foster parent under regulation 27 of the Fostering Services (England) Regulations 2011 … but does not have a child or qualifying young person placed with them and has not had a child or qualifying young person placed with them for a period which does not exceed 52 weeks.”“Child” is defined as a person under the age of 16, while “young person” has the meaning prescribed in reg. 19.16.At this point the outlines of the dispute between the Council and the respondent begin to emerge. She is occupying a three bedroom house. At first sight, she is entitled to one bedroom only and so a reduction of 25% falls to be made in her maximum rent. That reduction will be limited to 14%, however, if she is fostering a child or qualifying young person or has done so within the previous 52 weeks. An alternative way of limiting the reduction to 14% is if a person who is not a child occupies the property as her home, but the respondent did not contend before the First-tier Tribunal that that was the position. In broad terms, the respondent’s case was that she was a qualifying parent or carer at all material times, either because she was fostering a qualifying young person placed with her by the Council or because she was entitled to the benefit of the 52 weeks provision.17.It is therefore necessary to look at regs. 19 and 21 to see the definition of “young person” and the circumstances in which a young person placed with the claimant is not treated as occupying the claimant’s dwelling under reg. 21(3). Those provisions in turn take the reader to the Social Security Contributions and Benefits Act 1992 for the definition of “qualifying young person” and to the Children Act 1989 for the placement provisions relevant for these purposes. It is also necessary to look at the Fostering Services (England) Regulations.Qualifying young person18. Reg. 19 of the Housing Benefit Regulations cross-refers the reader to s.142 of the Social Security Contributions and Benefits Act for the definition of “qualifying young person. Under that provision, a qualifying young person is:“… a person, other than a child [i.e., a person under 16] who – (a)has not attained such age (greater than 16) as is prescribed by regulations made by the Treasury, and(b)satisfies conditions so prescribed.”19.The prescribed age and conditions relevant for this purpose are prescribed by the Treasury in Part 2 (Regulations 2 to 8) of the Child Benefit (General) Regulations 2006, S.I. 2006/223. The provisions are complex and I gratefully adopt Mr. Stagg’s summary of their broad effect, which is sufficient for present purposes. Qualifying young persons are:(1)those aged up to 20 in full-time education (but not those studying for a degree or equivalent): reg. 3;(2)16 year olds who have left relevant education or training: reg. 4;(3) 16 and 17 year olds who have registered for work, education or training: reg. 5;(4)Those aged up to 20 who would qualify but for a relevant interruption: reg. 6.Reg. 7 sets out how the date at which a person ceases to be a qualifying young person is to be identified and reg. 8 imposes a condition that the person should not be in receipt of specified social security benefits.Placement provisions in the Children Act20.As it currently stands, reg.21(3) of the Housing Benefit Regulations provides, so far as material, that a young person shall not be treated as a member of the claimant’s household nor as occupying the claimant’s dwelling where he or she is placed with the claimant by a local authority under section 22C(2) of the Children Act 1989. Section 22C was added by the Children and Young Persons Act 2008 with effect from 1st April 2011 (with the exception of subs. (11), giving the Secretary of State power to make regulations, which came into force on 1st September 2009) and currently reads:“(1) This section applies where a local authority are looking after a child (“C”). (2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)). (3) A person (“P”) falls within this subsection if – (a) P is a parent of C;(b) P is not a parent of C, but has parental responsibility for C; or(c) in a case where C is in the care of the local authority and there was a child arrangements order in force with respect to C immediately before the care order was made, P was a person named in the child arrangements order as a person which whom C was to live.(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so –(a) would not be consistent with C’s welfare; or(b) would not be reasonably practicable.(5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.(6) In subsection (5) “placement” means – (a) placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;(b) placement with a local authority foster parent who does not fall within paragraph (a);…”21.“Local authority foster parent” is defined in section 105(1) as a person authorised as such in accordance, in England, with regulations made by virtue of paragraph 12F of Schedule 2 to the Act. “Child” is defined as a person under the age of 18, subject to an exception not material for present purposes.22.The current regulations are the Fostering Services (England) Regulations 2011, S.I. 2011 No. 581. They provide a process for approval of an individual as a foster parent in reg. 27 and require by reg. 28 that the approval must be reviewed whenever the fostering service provider considers it necessary but in any case at intervals of not more than a year. Under reg. 30 a case record must be kept in respect of each foster parent which will include reports, recommendations and the foster care agreement and in addition will include a record of each placement with the foster parent, including the name, age and sex of each child placed and the dates of the placement.23. In practice, therefore, if a local authority is unable to make arrangements for the placement of a looked after child in accordance with section 22C(2) of the Children Act, the child will be placed with a foster parent approved under reg. 27 of the 2011 Regulations.24.S.22C is part of a group of sections, ss.22A to 22F, which were substituted for s.23, which was itself repealed. Although those provisions came into force in relation to England on 1st April 2011, reg. 21(3) of the Housing Benefit Regulations continued to refer, not to s.22C(2), but to s.23(2)(a) of the Children Act until 3rd November 2017. S.23(2)(a) differed from s.22C(2) in that it covered placement with all of “a family”, “a relative” and “any other suitable person”, so that (for present purposes) it extended to an unrelated local authority foster parent, whereas s.22C(2) does not at first sight do so.25.The difficulty to which this gives rise is resolved, for periods prior to 3rd November 2017, by s.17(2) of the Interpretation Act 1978, which provides:“Where an Act repeals and re-enacts, with or without modification, a previous enactment then, unless the contrary intention appears, -(a) any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted;”S.23 of the 1978 Act makes clear that “enactment” includes subordinate legislation. It follows that the reference in reg. 21 to s.23(2)(a) of the Children Act 1989 must be construed as a reference to that part of s.22C which re-enacts the previous provisions, albeit with modification. Mr. Stagg submits, and Mr. Rutledge agrees, that s.22C as a whole re-enacted s.23(2)(a). I have not attempted to analyse all the elements of s.23(2)(a) to work through that submission in its entirety, but, as I have said in the previous paragraph, s.23(2)(a) did envisage placements with a wider group of persons than those specified in s.22C(3), to which s.22C(2) expressly refers. I therefore accept the submission so far as is relevant for present purposes: that is to say, I accept that persons specified in s.22C(6), a group which potentially includes the respondent, are included as persons with whom a relevant placement may be made.26.As will appear later, no placement relevant for the purposes of this appeal was made with the respondent after 3rd November 2017, so I need not go beyond the conclusion expressed above. Mr. Stagg further submits that in any event the provisions of s.22C must be read as a whole, and the requirement in subs. (2) to make a placement in accordance with subs. (3) is expressly subject to subs. (4), which leads on to the alternative arrangements identified in subss. (5) and (6). I see the practical force of this argument, particularly given the context of housing benefit and the view I have taken of the effect of the relevant provisions up to 2nd November 2017. It would be surprising if the consequence of updating the statutory reference were to be to effect a substantive change in reg. 21. Nevertheless, as the point does not arise on this appeal, I do not express a concluded view on it.Fostering provisions27.I have identified in paragraph 22 above the current Fostering Regulations for the purposes of s.22C and it will be seen that those are also the regulations referred to in reg. 2 of the Housing Benefit Regulations. It will be recalled from paragraph 6, however, that the respondent’s original approval was under reg. 28 of the Fostering Services Regulations 2002. This gives rise to the question whether the respondent fell outside the definition of “qualifying parent or carer” because her approval was not under reg. 27.28.Paragraph 12F of Schedule 2 to the Children Act, under which the 2011 Fostering Regulations were made, authorises regulations under s.22C and unsurprisingly the Regulations themselves came into force at the same time as most of s.22C. The 2002 Regulations were made under, among other provisions, s.23 and paragraph 12 of Schedule 2. This brings us back to s.17 of the Interpretation Act, which provides in (2)(b):“in so far as any subordinate legislation made or other thing done under the enactment so repealed, or having effect as if so made or done, could have been made or done under the provision re-enacted, it shall have effect as if made or done under that provision.”Mr. Stagg submits, and Mr. Rutledge agrees, that s.22C and paragraph 12F were, for these purposes, effectively a re-enactment with modification of s.23 and paragraph 12. 29.Mr. Stagg and Mr. Rutledge were in part addressing a different point designed to establish that the respondent’s approval was validly given under reg. 28 of the 2002 Regulations, which seems to me clearly to have been the case, since those Regulations were not revoked until 1st April 2011. As I understand the submission, however, and certainly this seems to me to be its logic, a further part of the argument is that an approval given under reg. 28 did not lapse on revocation but fell to be treated as given under reg. 27 of the 2011 Regulations. The review provisions of reg. 28 would accordingly apply, as Mr. Stagg and Mr. Rutledge agree was the case. I accept that submission and it follows that the respondent was not prevented from satisfying the definition of “qualifying parent or carer” because her approval was originally given under the 2002 Regulations.