Dilemma - claim UC or not?

Same client as in an earlier query.  Local Authority has now given a formal decision that he is not entitled to Housing Benefit and we are appealing it.  But in the meantime, his arrears are racking up.  He is currrently on ESA with SDP (I think possibly an EDP as well but have not established that yet.) Am I correct in saying that if he claims UC including Housing Costs on the basis of the Local Authority decision he will have Transitional Protection.  However, if he claims Universal Credit and our appeal is successful, then he has his Living Costs paid by UC and his Housing Costs paid by Housing Benefit.  But he will have lost his ESA and I am not clear whether or not he will benefit from Transitional Protection in his UC payments.

Sorry I should have made clear that this is an issue about specified accommodation.  We are saying ihe is entitled to HB because it is exempt accommodation, LA are saying it is not and therefore he should claim UC.

Having thought about it, as I see it, client would get Transitional Protection when he initially claimed UC.  However, if there’s a wait before the decision on the nature of his accommodation is made, and it is actually decided that it is not exempt accommodation, then his rent costs will be added to his Maximum Universal Credit entitlement and will immediately erode his TP in full (and this might happen even if the Housing Costs were backdated to the start of his claim). If he is paid Housing Costs and then later it is decided he should have HB, then that shouldn’t affect his Transitional Protection - he will just lose the Help with Housing Costs element.  But I would really like confirmation or the opposite from someone as I feel this is such a complicated area.

If your client gets the SDP and claims UC otherwise than as part of managed migration, they will get the flat rate SDP compo.

In terms of UC, there should be no question of the introduction of the HCE causing erosion because it will apply from the first AP (whether it is paid immediately or subsequently following a revision). It is only where the entitlement arises in the second or subsequent AP that erosion will apply.

Looking at this post and your previous one, I am a bit curious as to what the goal of this appeal is. If its social housing, UC will presumably pay the full rent anyway? If the objective is to keep him off UC, that is only going to be achievable if he is prepared to forgo the UC HCE entirely whilst waiting for the appeal to resolve and ending up in massive rent arrears if ultimately unsuccessful. Is there some other aspect to it?

Thanks Elliot. The main problem is that he initially claimed HB around a year ago, and was signposted to UC, which, because of his health problems he did nothing about. So we already have about a year’s rent arrears. The LA have agreed that they should have made a proper appealable decision. They have now made it - not specified accommodation - and we have the right to appeal it. A successful appeal would mean arrears paid back to original claim. But an unsuccessful appeal might, after the wait for a hearing, result in much increased arrears. 

If we simply accept the LA decision then we can take the UC going forward and accept the flat rate Transitional protection but I cant really find an argument for backdating the UC claim.

In terms of the merits of the case, despite having completely overlooked sorting out his benefits, I think the Housing Association did provide a level of support which could meet the criteria.

So, ideally I would like to make the claim for UC now and still pursue the appeal, but am trying to make sure there are no traps I haven’t thought of. The point you made about Transitional Protection not being eroded if the decision that they should be covered by Housing Costs came later but was backdated reassures me on one point at least, but all further comments welcome!

Just one other thing to factor in when weighing up the risks and deciding the strategy.  Is the landlord definitely a registered HA?  If so, chances are that HB or a UC housing element would be near enough the same (leaving aside some differences in the rules on service charges).  If not a registered HA, then the amount of benefit will be different if it’s exempt accommodation.

Yes, the landlord is a Registered Social Landlord, so there won’t be a huge difference between payments.  My concern is trying to balance recovering nearly a year’s HB payments, making sure someone is paying for his Housing Costs on going, and ensuring that his TP is not jeopardised.  Now Elliot has confirmed that a late decision on his being entitled to UC Housing Costs wouldn’t wipe out his Transitional Protection I think we will go for the strategy of appealing the HB decision and helping client make a claim for UC with Transitional Protection.  In relation to the question on UC about sheltered accommodation, we will say yes, and then add a note on his journal to say that the Local Authority has decided it is not “specified accommodation”,.  Hopefully that means that his Housing Costs will come into payment (or even if temporarily held up by our appeal we can assure his landlord that they will be in the future, and we can still have a chance of HB being paid for last year.  Can you see any snags with this approach?

That seems fair enough: in effect saying “I don’t want a housing element now because I think I occupy specified accommodation, but if the Tribunal in my HB appeal says otherwise then I am relying on this communication here to stake a claim for UC housing costs from Day 1 - I reserve the right to revisit this matter without being penalised for delay”.

The alternative would be to claim UC and declare general needs housing costs so that at least the rent account is ticking over in the meantime, while accepting that a successful HB appeal would logically result in a UC overpayment, which could of course be repaid from the HB arrears.

The UC claim form creates a false dilemma, because its not the claimant’s job to decide what type of accommodation they are living in.

I think if you tick that you live in supported housing, that is just the end of it. Whereas if you tick that you live in ordinary social housing, the information required to put the HCE in payment is requested.

So I would tick the box saying that you live in ordinary social housing and then add the contextual information in a journal note.

Thanks Elliot and Peter for those last two posts - they are both really helpful and summarize the dilemma.  So we’ll go for the UC claim and probably tick NO to the question about sheltered accommodation and then put an explanatory note on the journal.  I agree Elliot that the UC claim form causes problems - I have had clients moving into ordinary over-55 accommodation with perhaps a part-time manager naturally enough ticking YES in response to that question and then triggering delays and anxiety as both UC and HB refuse to pay Housing Costs.