Bedroom tax- bereavement protection

HELP - I have a case where a son, who was previously a non-dep, now has a joint tenancy with his father following the death of his mum. The council are arguing that the mum was not a linked person to the son who is now the claimant because she had a separate right to occupy the property as a joint tenant with the dad.

i have read many cases on here where non-deps get the protection despite their deceased relatives obviously having had their right to occupy the property so am somewhat confused now.

I set off ready to challenge the council but am not so sure about it now - as a non dep he was obviously part of the household of the deceased person and was a linked person, but the legislation says:
(3) Where the claimant occupies a dwelling which is the same as that occupied by the claimant at the date of death of a linked person,
Is the ‘linking’ a two way process because they are saying the mother is not a linked person?

Any pointers would be gratefully received - back at work after 6 months sick and my brain is hurting with this!

A lot of councils completely fail to understand the concept of a separate right of occupation.  I think every HB officer should go on a basic law of property course because so much in the HB Regs depends on having some knowledge of it.

A separate right to occupy means that the person’s occupation of the dwelling was not dependant on the deceased person’s right to occupy (or vice versa) before they died.  If the branch would have fallen with the tree, it’s not a separate right.  The Council should ask itself: suppose the tenant was evicted, what would have happened to the linked person?  Would they have been evicted too, or would they have remained because of their separate right to occupy?

So:

- joint tenants: yes, linked person (branch falls with tree - only one tenancy, if it ends that’s curtains for both/all JTs)
- non-dep: yes, linked person (branch falls with tree - if tenant evicted, so is anyone the tenant had invited into the dwelling)
- house sharers with individual tenancy agreements: not a linked person (branch doesn’t fall with tree - if Johnny in Room 1 doesn’t pay his rent and gets himself evicted, that isn’t my problem).
- subtenant/lodger: no separate right of occupation, but not normally a “linked person” because Reg 2 definition limits it to relatives.

The Council in your case is applying an interpretation that renders it almost impossible for anyone to satisfy the 12 months’ protection rule except for the existing tenant.  It isn’t meant to be that restrictive.

Thanks very much for that clarification. All makes perfect sense now. The point about her interpretation meaning virtually no one would qualify was the fact that kept me going with this.

Just a wee word of warning regarding the protection - it’s only the eligible rent which applied on the day before the death occurred that is protected for 12 months - in other words any annual increase in April for example will not be protected. See 12BA (5) of the HB (Amendment) Regs 2012