I have a client who has 8 foster children two with quite severe disabilities(all 8 are permanent placements). Obviously they live in a very large property, however the LA are restricting her rent as if she were single- causing a shortfall over £900 per month!
I think that the children can be treated as occupiers and therefore taken into account when considering the question of rent restriction. The LA say not, as they are not members of the assessment unit.
Am I right? Are there any decisions that support my argument? Has anyone else come across this?
I'd be grateful for any thoughts.

Most non-dependents can be taken into account as "occupiers" of a property and therefore included when referrals are made to the Rent Officer.

However, foster children are excluded from the definition of non-dependents under HB regulations (HB Regs 3(2)(c) and 15(3)).

Paragraphs 10.98 and 10.99 of the Housing Benefit Guidance Manual follow this by specifying that foster children cannot be included as occupiers when making rent officer referrals (see http://www.hbinfo.org/menu3/gm2003/a10_2003.shtml).

Although I've never come across this problem before, I would imagine that it could be quite "common", although the rent shortfall is very dramatic in your clients case due to the number of foster children/size of the property.

On the face of it, I can't think of anything in the HB Regs to solve this.

The alternative would be a request for a Discretionary Housing Payment and/or requesting social services make payments to make up the shortfall.

Does anyone know whether there may arguably be a statutory obligation on social services to do this?

Thanks for this Ken - very helpful.
At the moment Social Care are meeting the top up on top of the fostering allowances but are reluctant to continue.
I have spoken to our fostering team, and got the breakdown of what percentage of fostering/residence order allowances are supposed to cover the housing costs. The Fostering Network guidelines have an amount for household, which would also include utilities etc.
These are:
27% 5-10years old
21% 11-15 years old
18% 16+ years old.

It looks like all I can do is argue for DHPs to make up the shortfall between what is paid in that % of fostering allowances (less a notional utility figure) and the balance of the rent!

The guidance states that foster children should not be included as to do otherwise would amount to double subsidy. This is a policy rather than a legal issue. (Guidance of course does not have the force of law.)

I dont think the legality has been fully tested as yet because Marchant and Swale dealt only with the speicifc case of visiting children.

The issue of occupiers is not necessarily congruent with the issue of members of a household.

If the amount for housing costs is less than the actual amount your client has to pay, then I think it might be worth bringing a case to Tribunal and then on to the Commissioners if necesary. (You will of course have to make a good stab at distinguishing Marchant and Swale on the facts)

Thanks for this. I was going to appeal anyway to try to get to Commissioners to run the argument. I am really surprised that this has not come up before in relation to fostering/residence order cases.

Hi Claire, just noticed your query whilst looking for something else.

i had exactly the same problem last year - anyway took it to appeal and won. Case details and authority's i used are at my other office. I'll be working from there tomorrow so i'll reply in detail then.

Cheers, Brian.

further to yesterday's e-mail.
the argue is as follows:
clearly a foster child is not a menber of the family for benefit purposes but Article 2<1>ROO and Schedule 2<1>make it clear that the referral to the RO can include persons who are not part of the family for benefit puprposes. The order simply defines a child as a person under 16. A distinction is therefore to be made between including the child for actual HB calculations and referrals to the RO for an eligible rent.

The LA relied on reg 15<3> but the Chair accepted that this related only to who shall be classed as a member of a claimant's household for benefit calculation purposes, it does not deal with who is an occupier. He accepted that it was the case that a person can occupy the house without being a member of the claimants household eg. as a sub-tenant. The LA backed up their argument by trying to rely on their own guidance <10.98/10.99> which does state that a foster child should not be included to avoid double provisdion. The Chair accepted however that this was not law, merely guidance, and in this instance the guidance is wrong because it seeks to rely on 15<3>which does not deal with who is an occupier. He concluded that it would be illogical to ignore the presence of a foster child in the referral to the RO.

2 further points - a] I did have confirmation from the local social services that that their foster/boarding out payments did not inclusde a specific amount for housing costs
b]the Swale case can easily be distinguished as this concerned a child who spent alternate weeks at mum and dad's separate homes aith mum getting CB, child therfore viewed as occupier with mum.

Hope this helps, let me know if you need more info. and how you get on.
Cheers, Brian.

ref is actually Article 2<1> RO0 - page 601/2 in 2001/02 legislation
cheers,B.