Good morning everyone - need your help with a small query.

Can anyone point me to the statutory authority which permits a council to increase the standard £9.75 deduction from ongoing benefit to take account of "rent free" weeks. The council and landlord are the same organisation.
I'm used to HB being calculated, in this case, over a 49 week year but the council also does the same for deductions, so £9.75 ends up as £10.35 per week.
There are no complications such as fraud or disregards in this case.

Many thanks.

PS. OK, so I've missed something pretty obvious but why is it £9.75 anyway? Using the method of calculation set out in Reg 102 (2) (b) I get £9.65.

Well its £9.75 cos it says so in A27/2008:
Recovery of overpayments from ongoing HB
52 The standard maximum rate of recovery from continuing benefit is increasing from £9.15 to £9.75 from 1 April 2009. Similarly, the maximum rate of recovery from continuing benefit, when the overpayment has arisen as a result of fraud as defined in Reg 102(3) of HB Regulations 2006 and Reg 83(3) of HB (SPC) Regulations 2006 has increased from £12.00 to £12.80.


As for converting it for rent free weeks, I can't see anything that says we should do this, (reg 81just covers entitlement and ND dedns), but I'd think that the OP deduction is automatically factored by the computer system (it is on ours anyway) and that would mean changes to the software, with the attendant cost. To be honest, it seems logical that where rent free weeks are involved that everything; income, applicable amount, non dep deductions and op deductions should all be worked out the same way.

Never mind A27/2008, that's not law, only guidance (ie soembody's opinion, not necessarily right). Where is the regulatory provision that works out at that figure?

It does get me down when people cite things like the decision maker's guide and HB circulars as if they had some sort of legal standing. All part of the general unwillingness to accept what the law actually says (see some other forums on this issue).

For non-"fraud" cases, the MAXIMUM ongoing deduction is set by HBR 102(2)(b). It "works" like this:

5% of the single person's personal allowance (25+): £3.215 (5% of £64.30)

rounded up to the next 5p: £3.25.

multiply by 3: £9.75

Interestingly, I can see nothing in HBR 81 (rent free weeks) that authorises an apportioning adjustment for deductions under HBR 102. BUT, the wording in HBR 102(2)(b) is quite ambiguous. It starts of by referring to "...deductions...from housing benefit it <i.e. the LA> is paying to a claimant...". Obviously, in rent-free weeks, no HB is being paid. But, the next part makes reference to "...the deduction in respect of a benefit week...".

I think it is difficult to argue that rent free weeks are not benefit weeks. If that is correct, the crux is whether HBR 80 has the effect of making HB payable for the rent free weeks. My view is that it doesn't have that effect. The point of HBR 80 is not to make HB payable for the rent free weeks, but to "compensate" in the rent chargeable weeks. But, there may well be room for argument.

As an aside, does the wording of HBR 102(2) mean ongoing deductions can only be made under this provision where payment is physically being made to the clmt? I can't immediately see any reference to "landlord", nor any "deeming" provision. I can't see that this is addressed in the CPAG; anyone got any thoughts on this? The only possible override I can see is the opening in para (1): "Without prejudice to any other method of recovery....".

Unusually, I'm not going to join in the chorus of "ignore circulars" (as I have freely done in one or two other recent threads). In fairness, A27 was the uprating circular and these are normally distinguishable from the growing number of "we think / ignore the law" variety. So, true it isn't law, but the uprating circular is NORMALLY more reliable than most as it tends to deal with stark figures and facts without straying into interpretation.

For examples of circulars that are of the worst kind, see A19/2009 and A20/2009 (referred to yesterday - 23/11). Awful.

Tue 24-Nov-09 07:19 AM by Kevin D

Er, for "HBR 80", read HBR 81..... (I knew I shouldn't have posted at midnight).

The authority to make deductions is in Reg 102.

There is nothing in Reg 102 giving authority to apportion the decustion over 52 or 53 weeks when HB is paid over fewer weeks on account of rent free periods. The authority to apportion income in Reg 81 is not mirrored in Reg 102 to enable appotionment of deductions.

Reg 102(2) provides that:

"(2) Subject to paragraphs (1A) (4) and (5), where a relevant authority makes deductions permitted by paragraph (1) or (1ZA) from the housing benefit it is paying to a claimant or a claimant’s partner (other than deductions from arrears of entitlement), the deduction in respect of a benefit week shall be.....(calculated as explained by Kevin D)"

Benefit week is defined in Reg 2 as
"a period of 7 consecutive days commencing upon a Monday and ending on a Sunday;"

A benefit week is not necessarily a week when benefit is paid, but a deduction under Reg 102 cannot be made from benefit that is not paid or from benefit that the council is not paying.

Therfore there is no authority for the Council to increase the deductions above £9.75.

This looks to me as if the Council are making the rules up in a similar way to those Councils who have tried to take newly disregarded child benefit into account as discussed in other threads here

Reg 102 (2) will aply as much to rent rabates as it does to rent allowances because the primary legislation (S134(2)(c) of the Administration Act) deems "pay" to include discharge of any forms of awarding HB to a claimant

Twice in recent years I've been caught out by accepting the figures in uprating circulars. Now I always double check!

Belated thanks (I've been on leave) for your comments, esp Kevin D and stainsby.

I rather suspected that deductions were conveniently adjusted along with everything else for the sake of "convenience", without there being express legal authority. Will now have to work out what to do about it!

Regarding the £9.75, I rounded up at the end rather than after stage one, hence my error.

Just to report a positive outcome. I wrote seeking justification for their action and received a reply to the effect that the council (newly-formed last April) will be applying the standard deduction to all its tenants "in due course".