I've never been asked this question before and although I've checked the reference books, I can't find the answer.

This is a person who currently is not entitled to IS as their income is too high. However, they have made a claim at their current address so that s/he can start the clock ticking for the 39 weeks waiting period for help with mortgage payments.

The issue is: Even though a person is responsible for the mortgage payments but s/he is not resident there, will the qualification for the 39 week period still tick the waiting period clock during her absense. S/he intends living in the property in question at or about the end of the 39 weeks and hopes to get Housing Costs at that time assuming that the clock has remained ticking. Simply put, do you have to be present in a property for which you would like help with housing costs for throughout the 39 weeks waiting period? Thank you.

Simply put my slightly rotund Bolton type person - yes.

As far as I'm aware, one can only claim housing costs for one's main residence - ie, the one you reside in at the time of the initial claim. In addition of course the other property may be a bar to claiming I/S anyway if there is equity in it, and/or it's producing a rental income, which I assume it must be if the mortgage is being paid. There is also the question of liability for council tax on one or both residences....

What little can of worms have you taken the lid off of ........

So you don't know the answer then Michael? The property was being rented out by the way. I should remind anyone reading this that the issue of Housing Costs is not the issue. The matter purely relates to the waiting period before the housing cost become in payment. Do you have to be resident in the place that you are waiting for the the qualification period?

I'm having just a little problem getting my head around claiming housing costs from one address for another address that one intends to move into (or back to?) at some point in the next 39 weeks...of have I got the picture slightly aschew..?

I'm afraid you have michael. The Actual paymenty isn't issue, it's the question as to whther you have to be resident at a property to satisfy the 39week waiting not to get the payment.

My view is as follows. Paragraph 1 of schedule 3 of the IS Regs says “subject to the following provisions of this schedule, the housing costs applicable to a claimant are those costs…….which he…..is……liable to meet in respect of the dwelling occupied as his home”.

Paragraph 9 says”subject to the provisions of this schedule, the new housing costs to be met are……”

Thus, in my view, paragraph 9 is subject to paragraph 1. This is because for the housing costs to be met they have to be applicable in the first place and under paragraph 1 no housing costs are applicable to the claimant in the first place so the clock doesn’t start running at all.

.......I think that's what I was saying (wasn't I?) but not in quite such a precise and eloquent manner -

Quite disappointing - I thought the Little & Large show was going to run for some time Patrick......

I thank you both for your input. However, and I accept that I may not properly have understood you, the schedule speaks only of 'housing costs applicable' and by that I think it means those housing costs to be met via income support; it does not not speak of the pre-qualification period before payments are actually put in payment: in this case 39 weeks, when no housing costs are 'applicable' (payable); certainly not payable while not in residence.

If of course 'housing costs applicable' encompasses the pre-qualification period then you are both correct. But it does not say that.

I'm really not trying to be bloody over this but I'm struggling to overcome my feeling that when a person claims Income Support to get the clock ticking for help with mortgage payments then it does not matter where they make the claim. In this case the person concerned is still liable to pay the morgage and is doing so with the rental income she gets. That rental income will stop when she moves back to the property and she contends that the fact that she claimed Income Support earlier then the clock began to tick despite living elsewhere.

I think I'll have a cup of tea now and try to find the right gear for my thoughts. Thank you both for your help, it is much appreciated. And please tell me if you think I'm wrong. Thank you.

Patrick

In any event, would not the rental income preclude the claimant from successfully claiming I/S? It also sounds as if the claimant can gain possession reasonably easily: if that is the case and there's no shorthold tenancy agreement in the way, then JCP can say that she has a disposable asset (if there's equity in it): which all makes the subject of Housing Costs a tad redundant......

Paddy

I wouldn't dream of telling you that you were wrong but I still stand by my interpretation.

However, I thing I understand what you are getting at but correct me if I am wrong.

Are you saying that a claim for IS starts the clock running even though the housing costs are not applicable at that point. If so that is a bold interpretation and, I admit, I can see the logic in it.

I am not convinced that the reg can bear that interptretation though. In my view waiting periods are applicable to the housing costs specifically and not the claim as a whole. Thus it is not until the housing costs become applicable that the clock starts running.

I'd love to be wrong though.

Regards
Paul

I take your point that is well made. You may be correct and all of the team here have a different view of the possible answer. Some agree with you and some agree with me. This was a question asked of me our telephone advice line yesterday. I said I will get back to her today with an answer. I think the advice is simply 'suck it and see'. We will of course offer representation at appeal should it be needed. Fingers crossed I suppose. Thank you again and if anyone else has any ideas, please let me know.

There is no question of any title to Income Support at the moment. With regard to the asset of the house, this will be ignored as it will be the place were this person lives and she will not have any asset or capital to prevent a claim. Although her income (INCAP) will still remain in excess of her applicable amount; excluding housing costs, when she takes up residence in her home she will get help with her mortgage payments. The question still remains and that is; when will she actually get them? Will it be 39 weeks after her original claim at her current address, or, will it be 39 weeks after returning to her property. Thus, the original original question is still alive - though the same can't be said for my head. Thank you.

Interestingly our local office says that you may well be right Patrick - Gentleman there said that under the deeming provisions, even if an income support claim was nilled, it would still start the 39 week clock ticking - however, he also raised the point that a DM could say that the property could be a realisable asset, even with a tenant in it on a shorthold tenancy.......and that two DM's will probably come to two different decisions ....

Thank you for that. However, we are not worried about the tenant issue or capital assests as the period we are interested in is when the tenant has gone and she takes up residence in her property. It is taken as read that she will be nilled for IS now for many reasons but that all of the those reasons will disappear as the smoke in a bar on 12th July will do when she returns to her home. Thank you.

Paddy,

If your client is not entitled to IS/JSA by reason only that her income exceeds her requirements and throughout this period she was entitled to IB then the clock is ticking from the date she made her claim. She satisfies the linking rules in para's 14(4) and (5) of Schedule 3.

The question then becomes whether or not the housing costs are eligible. It could be argued that they are not because they were taken out in a relevant period, (para 4(4) of Schedule 3). This is because she is treated as entitled to income support from the date of her initial claim by virtue of para 14(5). However, the relevant period refers to the claimant being entitled to income support, not treated as entitled. So, if your client takes out her mortgage in the period prior to making her reclaim, it is possible that her housing costs will be met 39 weeks after her initial claim, providing the conditions in para's 14(4) and (5) are met.

The pereson in this case would satisfy paragraphs 14(4), (5), and 4(4). In that she has been getting incap since October 2006 and the loan was taken out after 1995. This has turned into a bit of a tangled web as I have just spoken to the cleint and she tells me that she is renting and paying rent as this is half of the mortgage payments. She is paying rent on her credit card as no HB payable as property is being taken into account as capital. O dear, what a mess. She tells me now that she is giving serious thought to putting the house on the market, staying where she is and claiming housing benefit to meet the cost of her current rent obligation; at least for the 26week disregard of the asset of the mortgaged property. My head is starting to spin again.

Paddy,

I think this looks more complicated than it really is. The only issue here is whether or not she satisfies the conditions in para's 14(4) and (5) of Sch 3 from the date of the original claim to the date of reclaim.

If there are reasons other than those in (4) and (5) as to why she was not entitled to IS during the qualifying period then she won't satisfy the provisions. If not, she satisfies them.

Tony

Thank you. As she does so satisfy those requirements, then she should qualify. I will keep people posted as to the eventual outcome. Again thank you everyone.

Tony makes a good point and I agree with him that if the linking periods apply then because a person is treated as being entitled to IS then the clock starts running from the date that a person is so treated. So well and good for your client.

But the question still remains (albeit in a now hypothetical sense) what about the case of a person who cannot be so treated and is not entitled when she makes the claim as income is too high and the housing costs are not applicable as they live elsewhere. Does the clock start running from the date of claim or the date that the housing costs later become applicable thus requiring a new claim?