Upper Tribunal judge remits case on foster carer, housing benefits and under-occupation for fresh hearing

The Upper Tribunal Administrative Appeals Chamber has handed a set of detailed directions to both sides for a further hearing by the First-Tier Tribunal (FTT) (Social Entitlement Chamber) of a case described by a judge as including “a complex legislative thicket”.

This concerned the London Borough of Waltham Forest, resident PO and the entitlement of PO to housing benefit while she fostered young women, some of whom passed the age of 18 while living in her home.

In Waltham Forest LBC v PO (HB) (Housing and council tax benefits) [2022] UKUT 58 (AAC) Upper Tribunal judge Elizabeth Ovey said the FTT made an error of law and a fresh tribunal should reconsider the matter, which should not include members of the previous tribunal.

She concluded: “The tribunal’s error was, in broad terms, proceeding on the basis that the finding that the respondent was an approved foster parent throughout was sufficient to dispose of the question whether there had been an overpayment and failing to address the other issues which arose in the light of the information in the list of placements.”

The new tribunal must consider whether the appropriate deduction applicable to the PO’s housing benefit pursuant to regulation B13 of the Housing Benefits Regulations 2006 was 25%, whether there was any over-payment, whether any non-dependant deductions were applicable to her housing benefit and whether overpayment is recoverable

Judge Ovey said the new tribunal must ascertain the dates on which each young woman was resident in PO’s home and ascertain the periods for which a 14% or 25% deduction was appropriate.

She said that while any of the young women were living with PO - whether or not they had reached 18 - PO had been entitled to an additional bedroom and so the relevant deduction was only 14%.

For all periods when there was no placement PO was subject to a 25% deduction.

Judge Ovey said PO must tell the council the names, dates of birth and various other information about the women who lived at her home.

It was common ground that the council’s fostering service placed a number of young women with PO but this led to “a lengthy and complicated dispute as to whether the respondent is subject to a 25% deduction in respect of the eligible rent or whether the deduction is limited to 14% only”, the judge said.

Mark Smulian