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SDP entitlement when Non dependent who is a Full time student,  is absent from home during term time

Welfare BU
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1) is there SDP entitlement of HB claimant during term time when non dependent who is a full time student is absent from home at university . There cannot be entitlement when student returns during vacation
2) Bedroom tax does not apply in this situation as f-t student treated as living there even when absent. is this correct?

Ruth Knox
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Yes, this is established that a student can be considered as living at home and requiring a bedroom.  I have always understood that SDP would apply as you have outlined, but not sure of any actual legislation or case law. Ruth

Dan_Manville
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I’d've thought, being as the HB regs treat the student as resident, but they’re not ordinarily resident for SDP purposes, that the SDP was payable irrespective of whether the student was back at their family home.

Charles
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Dan Manville - 04 April 2019 11:13 AM

I’d've thought, being as the HB regs treat the student as resident, but they’re not ordinarily resident for SDP purposes, that the SDP was payable irrespective of whether the student was back at their family home.

I agree with this.
The bedroom tax depends on who “occupies” the dwelling as their home. Reg. 7 of the HB Regs clearly allow a student to be treated as occupying the family home as long as s/he intends to return.
Non-dependant deductions, and loss of SDP, depend on a person “normally residing” there. This is a completely different test, which I’d have thought was easily failed by a student away most of the year. And that would include the periods they are back home.

[ Edited: 4 Apr 2019 at 01:42 pm by Charles ]
chacha
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Unfortunately you can’t “normally reside” in 2 different places, in this particular situation, unless specifically provided for in legislation and that’s not the case here.

So in this particular case you can either have the SDP and the bedroom tax, because the non-dep student does not reside with the claimant (Has flown the coop), or no SDP and no bedroom tax by virtue of the fact the non-dep student actually still “normally resides” at home.

Regulation 7 of the HB regs is a deeming provision so means he actually lives with the claimant.

Charles
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chacha - 05 April 2019 10:54 AM

Regulation 7 of the HB regs is a deeming provision so means he actually lives with the claimant.

Thanks for explaining, but I still don’t understand. Yes, it’s a deeming provision, but it is only for the purposes of deciding which dwelling a person is “occupying”. Why is that necessarily the same as the dwelling they normally reside in?

chacha
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I stole the phrase below from a supreme court case [2010] UKSC 58 (HMRC v DCC Holdings Commissioners for Her Majesty’s Revenue) which expands on deeming provisions.  https://www.supremecourt.uk/cases/docs/uksc-2009-0223-judgment.pdf

“When considering the extent to which a deeming provision should be applied, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. It will not always be clear what those purposes are. If the application of the provision would lead to an unjust, anomalous or absurd result then, unless its application would clearly be within the purposes of the fiction, it should not be applied. If, on the other hand, its application would not lead to any such result then, unless that would clearly be outside the purposes of the fiction, it should be applied.”

When applying this to reg 7, as agreed this is a deeming provision the logical approach would be that, in order for the student to live somewhere else but still be treated as living with the claimant and the property is not under-occupied it will be required to create the fiction he hasn’t left (So that’s where he normally resides and occupies as he never left because of the application of the deeming provision) and there will be no non-dep deduction because the non-dep is a student.

If we were not to apply reg 7 then there would be a bedroom tax but the claimant would have the SDP because the non-dep actually no longer lives there. The question of where someone normally resides a factual question, which means a deeming provision is required to protect and ensure that factual position so it’s impossible to have both, no under-occupancy charge and SDP, in this particular case.

See 44126 and 44135 of https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/789300/dmgch44.pdf

HB Anorak
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In the light of JP v Bournemouth Council [2018] UKUT 75 (AAC), I think it is very difficult to say that a person normally occupies the claimant’s dwelling as his/her home for the purpose of Reg 7 and the bedroom tax etc, yet does not normally reside with the claimant for the purpose of being or not being a non dependant.  I think the only possibility would be where the accommodation is used in such a way that the two people’s living rooms and kitchen do not overlap (so not residing with) but it is still the same dwelling for Reg 7 purposes. This will be difficult to achieve in most self contained homes.

HB Anorak
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Got more time today to expand on my quick post.

There are four terms in the HB Regs that clearly overlap to a large extent but are not exactly coterminous, or at least there is nothing in the Regs to guarantee that they are.

- “occupy”: the most heavily regulated (by Reg 7) of the terms, used to establish whether the claimant personally meets the threshold eligibility requirement to be occupying the dwelling as his/her home; also used to determine whether other people are included in the size criteria.  Depending where you are and why, it is possible to be no longer occupying the dwelling where the absence exceeds as little as four weeks, but can be up to 52 weeks.

-“normally resides with”: used in the definition of non-dependant.  There is no prescribed period of absence that does or does not break a person’s normal residence.  Complicated by the circularity of Reg 74(7)(a): there is no non-dependant deduction if the non-dep has his normal home elsewhere.  How can you normally reside with someone while also having your normal home elsewhere?  According to JP v Bournemouth Council [2018] UKUT 75 (AAC), you cannot really.  The UT concludes that Reg 74(7)(a) is leftover from the pre-1988 version of the HB Regs when the definition of non-dependant was differently worded.  Against the current definition of non-dependant, Reg 74(7)(a) is otiose.

-“normally living with”: used to determine whether a child or young person is aggregated into the family - again there are no prescribed limits on absence, but …

-“household”: undefined, but whatever it is it will survive absences of up to 52 weeks.  Used to determine whether a child or partner is aggregated into the family and also relied on by the “common household” LHA loophole.

The OP question is about “occupy” and “reside with”, in partcular does the student still have his/her normal home with the claimant (and thus continues to occupy for bedroom purposes) and does the student still normally reside with the claimant for the purpose of being a non-dep and blocking SDP entitlement.  I would have to agree with chacha that it cannot be a yes and a no or a no and a yes: it must be yes/yes or no/no.  As the UT observes in the Bournemouth case, “there is no real daylight between the respective meanings of normal residence and normal home”.

An interesting question to me is: what happens when absence from the normal home means the person is to be treated as no longer occupying it.  Say a non-dependant is absent from Great Britain for six weeks for leisure purposes.  This means that s/he is no longer counted in the size criteria ... but surely it is still the normal home in the grand scheme of things.  Does it follow that s/he has also ceased to reside in the home?  Could it be correct to remove the bedroom but leave the non-dep deduction in place and still not allow the SDP?  Because size criteria were not at stake in the Bournemouth case, that question did not need to be answered.  In the OP’s case, however, I am assuming that the non-dep is never away long enough to stop being treated as occupying the home (52 weeks being the limit for a student) so the bedroom is not under threat ... but that has to mean no SDP.  Cannot have it both ways.

[ Edited: 7 Apr 2019 at 10:04 am by HB Anorak ]
Charles
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Thanks both.
I think my mistake was in not realising that “main dwelling” in reg. 7(16) & (17) is defined as meaning the dwelling normally occupied.
In effect, therefore, a student can only be treated as occupying the family home if it is ANYWAY considered the dwelling s/he normally occupies.
This then brings us to the difficulty in differentiating between “normally occupies” and “normally resides”.

HarlowAC
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Apologies for raising this subject again.
I have a client in this position. Has son away at Uni. Local Authority gave him the choice of SDP or BT exemption. He chose SDP as more valuable.
I understand the logic that a person can’t simultaneously live at home for the purposes of the bedroom tax and away from home for the purposes of the SDP.
However, if the purpose of the BT exemption was to enable parents (generally) to keep a bedroom for their child at Uni and the purpose of the SDP is to provide additional support for those with no other adult living with them, then there is also logic to both provisions being applicable at the same time.
Also, for the BT exemption the student is TREATED as occupying rather than occupying the parents home. Does this make a difference?
Presumably the student still gets a CT student discount in their Uni digs so, for this purpose, despite living in two different properties, benefits from two different and opposing legal provisions?
I’m a bit torn!

HB Anorak
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I think the analogous terms are “dwelling normally occupied” and “normally resides with”.  Being absent from the dwelling normally occupied as the home for longer than as little as four weeks can bring about the end of HB - but it is still the underlying dwelling normally occupied.  If it were not the dwelling normally occupied to begin with as a threshold requirement, the claimant would not get as far as being treated as occupying it while absent.  As the UT said the in the Bournemouth case, it is extremely difficult to separate “normally occupied” and “normally resides”.

There is case law on the bedroom tax/LHA implications of a student being away from home and it is favourable to claimants - but normally nothing else is a stake as students don’t attract non-dep deductions during term time.  There has never been a case where the claimant needs the absent student to be still an occupier but not a non-dep anymore.  I doubt that it is possible to achieve that.

As for Council Tax, a dwelling can be exempt if it has residents who are all students or if it used by students purely for study purposes - this recognises that students will often still have their sole or main residence elsewhere.  They don’t need to be resident to get the exemption.  It could that the liability would fall to the student(s) as non-resident owner(s), or to the landlord if it’s an HMO, but having a house full of students makes it exempt one way or the other.

Finally, it gets really interesting if the student wants to claim HB (eg because s/he is disabled).  In [2010] AACR 40, Judge Mesher notes that Reg 7(3), which allows a student to be treated as occupying whichever dwelling s/he is liable to pay rent for, refers to a “claimant”, whereas the rest of Reg 7 refers to a “person”.  This means the student could be temporarily absent from, and still treated as occupying his/her parents’ home for the purpose of the parents’ own size criteria, but simultaneously occupying his/her own home for the purpose of his/her own HB claim.

But I don’t think it is possible to have this magical dual status as occupier but not non-dep in the parents’ home.

HarlowAC
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Thanks for reply.
Unsurprisingly, I would like to have my cake and eat it!
It’s interesting that this particular scenario has not been tested. I’m tempted to ask the local HB unit to explain it’s position and take it from there.