Is the ex-husband a non-dependant?

A lady and her daughter have a joint tenancy on a property and both are separately claiming housing benefit.  The lady’s ex-husband had a massive stroke and needed to be cared for when he was discharged from hospital so he now lives in the same property as his daughter and ex-wife and is cared for by them. 

Is he a non-dependant?

The Housing Benefit department say that he is a non-dependant of his daughter but not of his ex-wife as he is not part of her household.  This means that the non-dependant deduction is taken wholly from the daughter’s HB rather than being shared by both women.  The HB dept have said this is under ‘benefit regulations’ but have not been able to say which ones.

What do you think?

Not sure off the top of my head, but isn’t it as broad as it is long anyway?

It is entirely possible for two family members to organize themselves as separate households within the one property even if they actually share some of the accommodation.  In this situation another person could be classed as a non-dep of only one of them but the two households must live at some degree of arms length of each other.  The fact of a joint tenancy might militate against this however.  It is all a question of fact.

Secondly, has it actually been established that he normally resides with either of them?  Does he have a home elsewhere to which he intends to return?  How long has he been there?  Again, it is a question of fact.

He has no home anywhere else and no intention of living anywhere else.  He lives in a bed in the living room. There is definitely tension between the ex-partners so no suggestion that they are actually a couple.

I ought to add that the ex-wife receives DLA which means that no non-dep deduction would be applied to her HB.

As a gut feeling I would have said that a carer and the person cared for do live in the same household - it’s one of the common scenarios that can get mistaken for LTAHAW.

Unless there is more to this than meet the eye, it may well be arguable the LA has got this wrong.  HBR 74(5) states:

(5)  Where a person is a non-dependant in respect of more than one joint occupier of a dwelling (except where the joint occupiers are a couple or members of a polygamous marriage), the deduction in respect of that non-dependant shall be apportioned between the joint occupiers (the amount so apportioned being rounded to the nearest penny) having regard to the number of joint occupiers and the proportion of the payments in respect of the dwelling payable by each of them.

Firstly, I would ask for a formal statement of reasons and, in the request, expressly request that the LA provides the legal basis for the manner in which it has attributed the non-dep to only one of the joint occupiers.  Bear in mind that an in-time appeal can be properly made within 14 days of a statement of reasons being provided - even if the appeal would otherwise be outside the normal one month time limit (see Rule 23(5) in conjunction with Schedule 1 of the The Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008).

If an appeal is then needed, I would argue that it is a matter of fact the ex-husband is a non-dep of each of the joint occupiers and, therefore, the non-dep charge must be apportioned accordingly.  Obviously, the proportion that would otherwise be apportioned to the person with the DLA (care) will simply be nil.  But, that doesn’t provide a basis for the LA to simply lump a full deduction to the person without DLA.

Finally, note the wording of HBR 74(5) allows for a “split” non-dep deduction on a basis other than 50/50.  In the event of a non 50/50 split, the LA *may* say that its benefits computer system can’t handle it.  Tough.  In R(H) 5/09 (@ para 26), Judge Jacobs made it crystal clear that the limitations of computer systems are irrelevant to the implementation of legislation.