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BRIEFING PAPER

Number 4887, 9 June 2017

Housing Benefit: under-occupying tenants in the private rented sector

By Wendy Wilson

Contents: 1. Entitlement to Housing

Benefit 2. Claimants’ age 3. Disabled claimants:

amendments to the size criteria

4. The families of armed forces personnel

5. Foster carers 6. Discretionary Housing

Payments (DHPs)

2 Housing Benefit: under-occupying tenants in the private rented sector

Contents Summary 3

1. Entitlement to Housing Benefit 4 The application of size criteria 4 The policy rationale 5

2. Claimants’ age 6

3. Disabled claimants: amendments to the size criteria 6 3.1 Disabled children sharing a room 6 3.2 Disabled adults unable to share a bedroom 10 3.3 Non-resident carers 11 3.4 Spare rooms and storage of disability related equipment 12

4. The families of armed forces personnel 13

5. Foster carers 15

6. Discretionary Housing Payments (DHPs) 17

Cover page image copyright Wendy Wilson

3 Commons Library Briefing, 9 June 2017

Summary Restrictions on entitlement to Housing Benefit based on the size of accommodation occupied have applied to claimants living in privately rented housing since 1989 under Schedule 3 to the Rent Officers (Additional Function) Order 1989. The Conservative Government at that time introduced these restrictions alongside the deregulation of private sector rents in recognition of the upward pressure that this policy was likely to have on Housing Benefit expenditure. Size criteria in the private rented sector applied only to new Housing Benefit claimants in 1989 – there was no retrospective application.

With effect from 7 April 2008 the Labour Government changed the way in which the rent element of Housing Benefit is calculated for tenants living in the private rented sector – other aspects of the Housing Benefit eligibility assessment process, including size criteria, remained in place. The Labour Government renamed Housing Benefit for new private sector claimants after 7 April 2008 - it is now called the Local Housing Allowance (LHA). On introduction, the LHA was not retrospective, the changes it introduced only applied to new claimants after 7 April 2008.

The extension of the size criteria to apply to Housing Benefit claimants living in social rented housing from 1 April 2013 proved highly controversial (see Library paper 6272) and focused attention on the position of severely disabled children and adults who are unable to share a bedroom, foster carers and the families of armed forces personnel. Several legal challenges to the application of the size criteria in the social rented and private rented sector have been successful. As a result, changes have been made to the size criteria for certain groups which also apply to private tenants.

This briefing paper explains how the application of size criteria operates in regard to Housing Benefit for private rented accommodation, and provides information on Discretionary Housing Payments (DHPs).

4 Housing Benefit: under-occupying tenants in the private rented sector

1. Entitlement to Housing Benefit The application of size criteria In determining the maximum Housing Benefit entitlement for tenants in the private rented sector, local authorities take account of the size of the household. For claims assessed under the Local Housing Allowance arrangements (applies to new claims after 7 April 2008), the number of bedrooms a household requires is specified in regulations. For claims assessed under the pre-Local Housing Allowance scheme, rent officers apply size criteria contained in the Rent Officers (Housing Benefit Functions) Order 1997.1

Bedroom allowance used for claims made under the Local Housing Allowance arrangements

One bedroom is allowed for each of the following:

• a couple

• a person who is not a child (age 16 and over)

• two children of the same sex

• two children who are under ten

• any other child

The number of living rooms is ignored for the purpose of the Local Housing Allowance as it is assumed all tenants are entitled to these and properties tend to be advertised according to the number of bedrooms they contain.

Size criteria for pre-April 2008 Housing Benefit claims

One bedroom is allowed for each of the following:

• a couple

• a person who is not a child (age 16 and over)

• two children of the same sex

• two children who are under ten

• any other child

Plus rooms for living:

• less than four occupiers; one

• four to six occupiers; two

• any other case;

• three.

Section 3 (below) provides information on amendments to size criteria rules affecting the entitlement of certain disabled residents. Sections 4

1 As amended by the Rent Officers (Additional Functions) Order 2013 and The Rent

Officers (Housing Benefit Functions) Amendment (No. 2) Order 2013.

5 Commons Library Briefing, 9 June 2017

and 5 provide information on exemptions relating to the families of armed forces personnel and foster carers.

The policy rationale The rationale behind the size criterion is that Housing Benefit should not fund claimants to live in properties that are larger than they need based on the number of occupants in the household. This was explained by the then Parliamentary Under-Secretary of State at Work and Pensions during an adjournment debate in 2002. Rent officers have no discretion over the application of size criteria:

Let me begin by explaining our policy on the benefit in relation to private sector tenants, and explaining why we have rules such as the size criteria.

Unlike social housing, the deregulated private rented sector is not subject to any internal rent controls. It is essential that we exercise control over housing benefit expenditure, so that the needs of people receiving benefit are balanced against those of taxpayers—indeed, those of the wider community. Surely it is a fundamental principle that people receiving housing benefit should not have their rent met in full if the level exceeds the broadly average rent level for an appropriately sized property in the area where they live.

Rent officers play an important part in the administration of housing benefit in the deregulated private rented sector. In carrying out his or her functions, the rent officer will make a determination based on certain criteria. He or she may make two or more determinations on a particular decision if those criteria apply to the same property. One is the size-related rent, which is the main subject of this debate.

The size criterion works like this. If a claimant lives in a property that exceeds the defined size criteria for his household, the rent officer must determine a rent for a similar tenancy of the appropriate size for that household in the vicinity. By "vicinity" we mean the immediate surrounding area. The defined criteria provide for one bedroom per couple and one for each single person over 16. The rules also state that two children—under 16—of the same sex should share a bedroom, as should two children of different sexes under 10. Any child who does not come into those categories is allowed his or her own bedroom. We also allow the household to have up to three living rooms, depending on how many people live in it. A one, two, or three-person household can have one living room, four people can have two, and three are allowed when there are more than four people in the household. We pay some attention to household circumstances.

The rules are set out in the Rent Officers (Housing Benefit Functions) Order 1997, which covers England and Wales, and the Rent Officers (Housing Benefit Functions) (Scotland) Order 1997.

The rent officer has no discretion to alter the size criteria for any particular case—for example, where, due to health reasons, a husband and wife would find it difficult to share the same bedroom.2

2 HC Deb 24 June 2002 c717

6 Housing Benefit: under-occupying tenants in the private rented sector

These criteria were not affected by the introduction of the Local Housing Allowance.

2. Claimants’ age Size criteria for claimants in the social rented sector only apply to claimants of working-age. This is not the case in the private rented sector. The size restrictions apply irrespective of the claimant’s age and have done since size criteria were introduced in 1989.

3. Disabled claimants: amendments to the size criteria

There is no general exemption from the size criteria for disabled applicants.

The application of size criteria has particular implications for disabled people and people with medical conditions who require an additional bedroom as a result of those conditions. When introduced in 1989, a couple could only receive Housing Benefit based on one-bedroom accommodation even if they had to sleep in separate rooms. These people experienced a shortfall in their Housing Benefit compared with their rent level. The impact of size criteria on people in private rented housing with medical conditions was raised in the House, at the time the Government made a commitment to consider the issue.3

The Work and Pensions Select Committee considered the issue as part of its inquiry into the Local Housing Allowance over 2009-10. The Committee concluded:

There is clear evidence that the current LHA rules constitute a real barrier to independent living for disabled people who require an extra bedroom and we believe this requires urgent action from the Department. As a result of the continuing failure to conduct an equality impact assessment and demonstrate compliance with the Disability Equality Duty, the Committee remains very concerned about this aspect of Local Housing Allowance. We strongly disagree with the way in which the consultation on Housing Benefits has put the initial question about this policy and recommend that the Department changes LHA rules as a matter of urgency to allow for reasonable adjustments for disabled people.4

Several court cases have resulted in changes to the application of the criteria in certain circumstances.

3.1 Disabled children sharing a room In a unanimous ruling on 15 May 2012 the Court of Appeal held that the size criteria in the Housing Benefit regulations (which at that time applied only to claimants living in private rented housing) discriminated

3 HC Deb 24 June 2002 c718 4 Work and Pensions Select Committee, Fifth Report of 2009-10, Local Housing

Allowance, HC 235, March 2010, para 167

7 Commons Library Briefing, 9 June 2017

against disabled people by not allowing an additional room where the disabled person has a carer,5 or where two children cannot share a room because of disability.

Lord Justice Maurice Kay said:

The case for the appellants is not that the statutory criteria amount to indirect discrimination against the disabled. It is that, in one way or another, they have a disparate adverse impact on the disabled or fail to take account of the differences between the disabled and the able-bodied. In their skeleton argument and oral submissions, counsel for the appellants describe these ways of putting their case as 'complementary and overlapping' rather than mutually exclusive. (paragraph 10)6

He went on to hold that the claimants had established a 'prima facie' case of discrimination for the purposes of Article 14 of the European Convention on Human Rights, and agreed with Mr Justice Henderson that the Secretary of State had failed to establish objective and reasonable justification for the discriminatory effect of the statutory criteria.

Subsequently, the draft Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 were prepared to give effect to the Gorry/Burnip judgement. The explanatory memorandum issued with the draft regulations explains the impact of the changes:

1. Housing Benefit Regulations 2006 (SI 2006/2013)

Regulation 2(2) - We propose to insert a definition of “child who requires their own bedroom” into regulation 2(1) of the housing benefit regulations. This applies to a child who is entitled to the care component of Disability Living Allowance at the higher or middle rate, by reason of their disability is unable to share a bedroom with another child and for whom there is a bedroom additional to those a claimant would be entitled to were the child able to share a bedroom.

We also propose to amend the definition of “young individual” so that a person who is a qualifying parent or carer (person who is an approved foster parent or in Scotland an approved foster carer or kinship carer) will not be subject to the shared accommodation rate when calculating the amount of rent eligible to be met by Housing Benefit in the private sector.

Regulation 2(3) - This amends regulation B13 which makes provision for the determination of the amount of rent eligible to be met by way of Housing Benefit for claimants renting in the social sector.

We propose to amend regulations to include an additional room for an overnight carer and / or foster child in the overall size criteria calculation for a joint tenant in the property. This is intended to ensure that when determining whether a dwelling is under occupied for purposes of applying a reduction in a room is included where a joint tenant or their partner require overnight care or are a qualifying parent or carer. The amendment also

5 The rules were amended from April 2011 to allow a room for a non-resident

overnight carer. The Burnip and Trengrove cases concerned this issue. 6 [2012] EWCA Civ 629

8 Housing Benefit: under-occupying tenants in the private rented sector

ensures that where one of the occupiers of the dwelling is a child who requires their own bedroom one is allowed under the size criteria rules.

Regulation 2(4) - This amends regulation 13D which makes provision for the determination of the amount of rent eligible to be met by way of Housing Benefit for claimants renting in the private sector to whom the LHA applies. The amendment ensures that where one of the occupiers of the dwelling is a child who requires their own bedroom one is allowed under the size criteria rules subject to a maximum of four bedrooms.

Regulation 2(5) and 2(6) - These amend regulation 14 of the Housing Benefit Regulations, which applies to private sector claimants not covered by the LHA and to some social sector claimants where the relevant Local authority considers the rent to be unreasonably high. This amendment ensures that a referral to a rent officer will be made if a child becomes or ceases to be a child who requires their own bedroom.

Housing Benefit (Persons who have attained the qualifying age for State Pension Credit) Regulations 2006 (SI 2006/214)

We propose to make equivalent amendments to Regulations 2, 13D and 14 of Schedule 2 to the Housing Benefit (Persons who have attained the qualifying age for State Pension Credit) (Size Criteria) Regulations 2006 in respect of a child who requires their own bedroom. These Regulations have no equivalent to Regulation B13 of the Housing Benefit Regulations 2006 as B13 refers to the social sector size criteria which only apply to claimants of working age. 7

The regulations were submitted to the Social Security Advisory Committee (SSAC); the Committee decided to call for evidence and views on:

the definition of the proposed benefit gateway which requires a disabled child to be eligible for the middle or higher rate care component of Disability Living Allowance in order to be considered for an additional bedroom under the Housing Benefit and Universal Credit size criteria.8

The SSAC’s report, along with the Government response, was published in November 2013.9 The SSAC expressed concerns over the potential to exclude a proportion of cases where a child is disabled and has a genuine need for an additional bedroom but does not receive DLA at the highest or middle rate. The committee recommended:

• the benefit gateway be extended to include children entitled to the lower rate of the care component of DLA; and

• the legislation be amended to include an ‘exceptions process’ for those who do not satisfy the gateway but who nevertheless are able to satisfy the authority that it would

7 DWP, Explanatory Memorandum for the Social Security Advisory Committee, 4

October 2013 8 SSAC Press Release, 4 October 2013 9 SSAC Report and Government response, The Housing Benefit and Universal Credit

(Size Criteria) (Miscellaneous Amendments) Regulations 2013 (SI 2013/2828), November 2013

9 Commons Library Briefing, 9 June 2017

be inappropriate for the disabled child to share a bedroom.10

The Committee also declared that Discretionary Housing Payments “are an inappropriate way of addressing this issue.”

The Government rejected the SSAC’s recommendations:

The Department has considered the recommendation put forward by the Committee and recognises their concerns. However, the Department is looking to cover a discrete group of severely disabled children, and not to open up a broader exemption for children with disabilities. The Government view is that a DLA gateway based on entitlement to either the middle or highest rate of the DLA care component is a clear and consistent test of severe disability.

As previously mentioned, the decision to set the gateway at the entitlement to either middle or highest rate of the DLA care component was made being mindful that the highest rate applies in those cases where the disabled individual has both day and night needs whilst middle rate applies to those with either day or night needs. We discounted using lower rate care as an identifier as those in receipt of this level of DLA have been assessed as not having significant night needs. The mobility element of DLA has also been discounted as it is not directly connected with carer intervention or supervision.

We accept and acknowledge that we are unable to legislate for every possible scenario, and thus accept that there will be some disabled (and non-disabled) children who may not qualify for the relevant award of DLA but may still not be reasonably able to share a bedroom. However, we believe that in these (rare) circumstances Discretionary Housing Payments – with appropriate guidance to local authorities - are a proportionate mitigation. Equally, it is very unlikely that any gateway would cover all possible circumstances, but a gateway of some kind is needed in order to guide decision-makers and keep administrative burden at a reasonable level. In the circumstances, and given analysis of the data available we are confident that the chosen gateway, based on entitlement to the middle or highest rate of the DLA care component is a sensible and reasonable one.11

The introduction of an ‘exceptions process’ was similarly rejected:

The Department introduced a DLA gateway as this option can be clearly set out in legislation and is administratively simple. It also provides a clear bright line that is transparent to staff and claimants alike. Were we to introduce a separate exceptions process over and above this it would have the same effect as removing the gateway entirely.

The Department also believes that were the allocation of an additional room to be on the basis of a Local Authority decision, decision makers would be unlikely to have sufficient medical expertise to be able to confidently arrive at a diagnosis of disability. In many cases it would be difficult for a lay person to differentiate between different types of disruptive childhood behaviour, some of which are not driven by disability. This could

10 Ibid. 11 ibid

10 Housing Benefit: under-occupying tenants in the private rented sector

lead to unintentional inequalities. It would also be particularly difficult to operate in Universal Credit.12

The Regulations came into force on 4 December 2013. HB Circular A21/2013 provides guidance for local authorities on the factors to take into account when assessing whether a child entitled to the middle or higher rate of DLA should be treated as unable to share a bedroom.13

The DWP published an Equality Analysis for The Size Criteria and children with disabilities.

Welfare rights advisors believe that there may be scope for challenging the amended rules in relation to disabled children. There is a view that the regulations are more restrictive than the law established by Gorry; thus disabled children who do not fulfil the DLA gateway criteria could argue that they are entitled to an additional bedroom.14

3.2 Disabled adults unable to share a bedroom

Ten cases concerning the under-occupation deduction were heard in the High Court over three days from 15 May 2013. These cases included disabled adults who claimed they were unable to share a bedroom:

The cases lodged by disabled adults include one relating to Charlotte Carmichael and her husband Jayson. She sleeps on a hospital mattress to ease bed sores caused by her spina bifida, while he uses a single bed in their smaller second room. But from April the new regulations would mean that they are under-occupying their specially adapted flat in Southport, Merseyside.15

Judgement on the cases was handed down on 30 July 2013: MA and Ors -v- Secretary of State for Work and Pensions - final judgment.16 The Court ruled that the under-occupation deduction was lawful.

Permission to appeal was granted and the Court of Appeal hearing was held in January 2014. On 21 January the judges upheld the High Court’s ruling.17 Permission was then granted to take an appeal to the Supreme Court.18 The hearing took place in March 2016 and judgment was handed down on 9 November 2016.

The Supreme Court held that where there is a clear medical need for an ‘extra’ room, it is not enough that Discretionary Housing Payments may be awarded. The Court held that the Carmichaels’ circumstances represented a sufficiently clear class of case such that the regulations should have made an exemption. The Court referred to the “inexplicable inconsistency” in the Secretary of State’s different

12 ibid 13 DWP, HB Circular A21/2013, paras 10-12 14 CPAG Welfare Rights Bulletin 237, December 2013, p4 15 Guardian, “Children’s rights cited in legal challenge launched against ‘bedroom

tax’”, 5 March 2013 16 [2013] EWHC (2213) 17 Inside Housing, “Campaigners fail to overturn bedroom tax court ruling,”

21 February 2014 18 Guardian, “Disabled tenants to challenge bedroom tax in supreme court”,

10 January 2015

The Supreme Court held that the under-occupation deduction unlawfully discriminates against disabled adults who are unable to share a bedroom because of their disabilities.

11 Commons Library Briefing, 9 June 2017

treatment of adults and children needing separate rooms as a result of disability.19

In response, the Government introduced the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017, which came into force on 1 April 2017. These Regulations provide that where a local authority is satisfied that a couple cannot reasonably share a bedroom as a result of a member of the couple’s disability, and that member is in receipt of a specified disability benefit, an additional bedroom should be allowed. DWP Circular A3/2017 provides guidance on the Regulations.

3.3 Non-resident carers As part of the June 2010 Budget, the Coalition Government said that from April 2011 an additional bedroom would be allowed within the size criteria used to assess Housing Benefit claims in the private rented sector where a disabled person, or someone with a long term health condition, has a proven need for overnight care and it is provided by a non-resident carer. This change affected all private sector claimants (where applicable) and not just those in receipt of the Local Housing Allowance.

The amendments to provide for these changes are contained in the Housing Benefit Amendment Regulations 2010 and the Rent Officers (Housing Benefit Functions) Amendment Order 2010.20 The Social Security Advisory Committee (SSAC) was consulted on these Regulations – information provided by the DWP to the Committee contained an explanation of how the amendment in respect of disabled people and carers would operate:

The size criteria at Regulation 13D (3) only take account of those who live in the customer’s dwelling as their home. Therefore where the carer lives elsewhere or care is provided by a team of carers a sleepover bedroom is not included.

The amendment regulations will allow funding for an additional bedroom where the customer or their partner has an established need for overnight care, that care is provided by someone outside of the household and where they occupy a property with an additional bedroom. Although the numbers are likely to be very small it is possible that there will be some who live in a four bedroom or larger property that meet the criteria but will not benefit from this change.

This is achieved by the insertion of a definition of “a person who requires overnight care” at Regulation 2 and an insertion to Regulation 13D to allow for an additional bedroom where the customer and / or their partner satisfies this definition. A corresponding change has been made to the size criteria in the Rent Officers Order for private rented sector cases that are not subject to the Local Housing Allowance (see below).

Amendments have also been made to Regulation 14(8) (requirement to refer to rent officers) paragraph 2(3) of Schedule

19 MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions

[2016] UKSC 58 20 These Regulations came into force on 1 April 2011.

12 Housing Benefit: under-occupying tenants in the private rented sector

2 (excluded tenancies) and Regulation 114A (9), (and 95A (9) in the Persons who have attained Pensions Age regulations) which sets out the information that is required to be sent to the rent officer. These changes ensure that the relevant information is passed onto the rent officer in order for them to take a non-resident carer into account where appropriate in their determination.21

The DWP’s Equality Impact Assessment on the measure said:

We estimate that the additional room for non-resident carers will benefit around 10,000 disabled customers. This assumption is based on analysis of the Family Resources Survey 2006-07, 2007-08 and 2008-09.22

The exemption described above did not apply where overnight care was provided for a child by a non-resident carer. Following the Supreme Court decision in November 2016 the Government introduced the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017. These Regulations, which came into force on 1 April 2017, provide an exemption where a disabled child or disabled non-dependant adult reasonably requires and has overnight care from a non-resident carer (or group of carers). DWP Circular A3/2017 provides guidance on the Regulations.

3.4 Spare rooms and storage of disability related equipment

The Supreme Court considered the issue of storing disability equipment alongside that of MA & Ors in March 2016:

Richard Rourke and his step-daughter live in a three-bedroom property. One of the bedrooms is used for the storage of equipment. It is another example of a case where it is not unreasonable for Mr Rourke’s claim for benefit sufficient to cover the whole of the rent to be considered on an individual basis under the DHP scheme.23

Judgment was handed down on 9 November 2016. The Court held that there was no direct medical need for an ‘extra’ room and instead identified a ‘social need’. The Court said that these cases could not be considered to be a class subject to an exemption and that each case should be given individual consideration.24

21 SSAC on the Housing Benefit Amendment Regulations 2010 [now archived] 22 ibid 23 With and Without Foundation [accessed on 4 May 2017] 24 MA & Ors, R (on the application of) v The Secretary of State for Work and Pensions

[2016] UKSC 58

13 Commons Library Briefing, 9 June 2017

4. The families of armed forces personnel

The potential impact of the introduction of size criteria in the social rented sector on the families of service personnel attracted significant attention, for example where a member of the services who normally lives with his/her parents is absent while training for a period of time, or is posted abroad. The length of training courses for the three services varies but some take longer than 13 weeks (the period allowed for a temporary absence). The standard tour length is six months for Army and Royal Navy personnel and four months for Royal Air Force personnel (within all theatres).25 The impact on the Housing Benefit entitlement of families with children in the armed forces who normally live at home was raised several times in the House.26

On 12 March 2013 the Secretary of State made the following announcement in respect of armed forces personnel:

Adult children who are in the Armed Forces but who continue to live with parents will be treated as continuing to live at home, even when deployed on operations. This means that the size criteria rules will not be applied to the room normally occupied by the member of the Armed Forces if they intend to return home. In addition Housing Benefit recipients will not be subject to a non-dependent deduction, i.e. the amount that those who are working are expected to contribute to the household expenses, until an adult child returns home.

The intent of the policy was that by using Discretionary Housing Payments, the estimated 5,000 foster carers and rather fewer Armed Forces personnel groups would be protected. We have agreed with local authority organisations improved arrangements through these regulations that puts these protections beyond doubt.

The changes will apply to tenants in both the social and private rented sectors.27

The Housing Benefit (Amendment) Regulations 2013 (SI 2013/665) provide for these changes in the treatment of families of armed forces personnel. Housing/Council Tax Benefit Circular A10/2013 provides the following guidance for local authorities:

Adult children who are in the armed forces but who continue to live with parents, will be treated as continuing to live at home (for the purposes of applying the size criteria), when deployed on operations. In addition, the non-dependant deduction should be removed and only reinstated when they return home.

Member of the Armed Services means a member of the Naval Service, British Army or Royal Air Force of the Crown or members of the Reserve Forces.

An adult child means sons, daughters, step-sons or step-daughters of the claimant or partner.

25 HC Deb 30 October 2006 c100W 26 HC Deb 21 November 2012 cc653–654 27 HC Deb 12 March 2013 cc9-10WS

14 Housing Benefit: under-occupying tenants in the private rented sector

For claimants in the private rented sector, this means that the applicable LHA rate or LRR will remain the same. This change comes into effect form 1 April 2013.

The adult son or daughter must have been a non-dependant before deployment on operations (although a deduction may not have been applied, for example where the claimant is blind) and there must be an intention to return to live with their parents.

On ‘operations’ does not necessarily mean away from the United Kingdom, just away from the home they normally occupy. It will also cover pre-deployment training and post operation leave (which is described as "normalisation"). For example, Royal Air Force personnel with immediate response duties who are based away from home for four months or where members of the armed forces were deployed to assist with the Olympics.

The LA should be satisfied that the adult son or daughter has been deployed on operations. If the adult son or daughter is already away on deployment when a new claim for HB is made, the claimant will be able to obtain a letter from the son or daughter’s chain of command in the armed forces, confirming the deployment.28

28 Housing/Council Tax Benefit Circular A10/2013

15 Commons Library Briefing, 9 June 2017

5. Foster carers In a Written Ministerial Statement on 12 March 2013, Iain Duncan Smith announced that the Housing Benefit regulations would be amended to allow an additional room for approved foster carers:

The Secretary of State for Work and Pensions (Rt. Hon. Iain Duncan Smith MP): I am pleased to announce that we intend to lay amending regulations to clarify the size criteria rules for two specific groups of Housing Benefit recipient, Foster Carers and Armed Forces personnel

People who are approved foster carers will be allowed an additional room, whether or not a child has been placed with them or they are between placements, so long as they have fostered a child, or become an approved foster carer in the last 12 months.29

The Housing Benefit (Amendment) Regulations 2013 (SI 2013/665) came into force on 1 April 2013. In addition, the Rent Officers (Housing Benefit Functions) Amendment Order 2013 amended the Rent Officers (Housing Benefit Functions) Order 1997 and the Officers (Housing Benefit Functions) (Scotland) Order 1997 to allow an extra bedroom for a foster child, or children of an approved foster carer, to be included in the size criteria applied by rent officers when making determinations for some cases within the private rented sector.

Housing/Council Tax Benefit Circular A10/2013 provides the following guidance on circumstances in which foster carers in private and social rented housing are exempt from an under-occupation deduction:

Where a claimant or partner who is an approved foster carer (or a formal kinship carer in Scotland) one extra bedroom will be allowed under the size criteria rules for use by a foster child or children, in both the private and social rented sectors.

One extra bedroom will apply to:

Approved foster carers (or kinship carers in Scotland) who have a child placed with them

Approved foster carers who are between placements but only for a period of up to 52 consecutive weeks from the date of the last placement

Newly approved foster carers but only for a period of up to 52 consecutive weeks from the date of the approval, if no child is placed with them during that period.

For approved foster carers in the social rented sector, a reduction for under-occupation will not be made in respect of the one additional bedroom for the foster child or children.

The claimant must have a bedroom in their home which is in addition to those occupied by their household, for the additional room to be allowed in the size criteria

If the claimant requires more than one additional room for foster children, they can apply for additional support with their housing costs through Discretionary Housing Payments (DHP).

29 HC Deb 12 March 2013 cc9-10WS

16 Housing Benefit: under-occupying tenants in the private rented sector

An extra bedroom will not be provided for prospective foster carers until they are approved; however people going through the approval process will need to show that they have a spare room available. DHPs can be used to provide support in the interim period.

The claimant or partner will receive a letter confirming their approval from the social worker responsible for their assessment. Local authorities (LAs) must be satisfied that all appropriate evidence is in place before allowing the additional room.

If the claimant or partner ceases to be an approved foster carer or their approval is revoked, the additional room will cease to apply to the size criteria.

Foster children will continue to be excluded from the HB assessment which means that a personal allowance is not awarded in respect of them and fostering allowance will still be fully disregarded as income.

It does not apply to special guardianships, as these children are currently treated as a member of the household and are therefore already included in the size criteria assessment.30

In England, foster parents are ‘approved’ under regulation 27 of the Fostering Services (England) Regulations 2011 and in Wales under regulation 28 of the Fostering Services (Wales) Regulations 2003. In Scotland the relevant legislation is regulation 10 (kinship carers) or regulation 22 (foster carers) of the Looked After Children (Scotland) Regulations 2009.

Housing/Council Tax Benefit Circular A10/2013 also provides guidance on the treatment of approved or prospective adoptive parents:

People going through the approval process to become adoptive parents will need to show that they have a spare room to be approved. Until the child forms part of the household, the additional room will not apply to the size criteria. DHPs can be used to provide support in the interim period.

Where a child is placed with a claimant prior to an adoption order being made, that child is not treated as a member of the household until the adoption is approved. For the period that the child is not a member of the household, one extra bedroom will be allowed in the same way as it is for foster children.

30 Housing/Council Tax Benefit Circular A10/2013

17 Commons Library Briefing, 9 June 2017

6. Discretionary Housing Payments (DHPs)

Claimants who experience a shortfall between their Housing Benefit entitlement and their rent can apply for a Discretionary Housing Payment (DHP). To qualify, there must be an underlying entitlement to Housing Benefit.

Each Housing Benefit department is given an allocation of funding for DHPs. Decisions over how the funding is allocated are left to the authority. Local authorities are permitted to contribute two and a half times the Government contribution to DHPs.

The Discretionary Housing Payments Guidance Manual and good practice guide for local authorities was updated and reissued in December 2016.

Additional information on DHPs can be found in Library paper 6899, Discretionary Housing Payments.

BRIEFING PAPER Number 4887 9 June 2017

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