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Housing benefit on two properties

Marion Edge
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We have a client whose claim for housing benefit on two properties for a 4 week period has been rejected.

The Council accepts that the dual rent liability was unavoidable but has rejected the claim for housing benefit on the second property and asserted that overlapping payments can only be made where an individual moves to the new property and leaves the old property empty but not vice versa. Housing Benefit Regulations 2006 Reg 7 (6) (d) expressly covers the situation where the individual moves into the new property but is silent in relation to the opposite situation.

The council also accepts that under Reg 7 (8) (c) (ii)  housing benefit can be paid before moving in where there are children aged 5 and under, pending an application for local welfare provision (which was the case here - the client was unable to move to the new unfurnished property until she received a grant to cover the cost of furniture). 

Our argument is that the legislation is intended to cover the situation when an individual has an unavoidable liability to pay rent at two properties for up to 4 weeks.  Whilst there is no express provision in relation to a person who remains at the original property rather than moving to the new property during the four week period it is a common sense reading of the legislation that this scenario would be covered in the same way as a person who moves to the new property and leaves the old property empty (which is expressly covered).  We have referred the Council to Housing Benefit Guidance Manual 3.684 and sent the Council a General Information Bulletin HB/CTB G4/2006. The Guidance in the bulletin is helpful since it refers to the need for both properties to remain at the disposal of the tenant. 

Does anyone have experience of this situation?

past caring
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G4/2006 refers to the regulations that were in force at the time - the 1987 regulations - and we’re now dealing with the 2006 regulations, so I am not sure it assists greatly. In any event, I don’t read it as suggesting any policy intent that HB on two homes should be generally available where the claimant has yet to move to the new property.

[ Edited: 12 Apr 2018 at 04:55 pm by past caring ]
past caring
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Also, I’m not really sure what the problem is?

It is only in those categories of case set out in reg. 7 (6)(a) to (e) that permit payment of HB on two homes. But reg. 7 (6)(e) is no good for you because it requires not only that paragraph (8) is met, but specifically paragraph (8)(c)(i) - that the delay was caused by disability adaptations. A delay caused by a need to wait for social welfare provision - (8)(c)(ii) - or because of hospital admission (8)(c)(iii) - does not suffice.

However, what you do have is reg. 7 (6)(d) - your client could not reasonably have avoided liability in respect of the two dwellings. She had to accept the new tenancy and the date from which it commenced in order to meet her housing needs. The furniture in her former home belonged to her landlord so she could not take it with her. Presumably the former landlord (the HA) was expecting her to surrender her tenancy on the date she was due to move into the new home - but then agreed she could stay 4 weeks longer because she would otherwise be homeless or would have to move into accommodation that contained no furniture, no beds, no cooking facilities and no refrigerator? I don’t think you will find it too difficult to get a tribunal to accept that she could not reasonably have avoided liability in those circumstances…...

[ Edited: 13 Apr 2018 at 10:12 am by past caring ]
Elliot Kent
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past caring - 12 April 2018 05:01 PM

However, what you do have is reg. 7 (6)(d) - your client could not reasonably have avoided liability in respect of the two dwellings. She had to accept the new tenancy and the date from which it commenced in order to meet her housing needs. The furniture in her former home belonged to her landlord so she could not take it with her. Presumably the former landlord (the HA) was expecting her to surrender her tenancy on the date she was due to move into the new home - but then agreed she could stay 4 weeks longer because she would otherwise be homeless or would have to move into accommodation that contained no furniture, no beds, no cooking facilities and no refrigerator? I don’t think you will find it too difficult to get a tribunal to accept that she could not reasonably have avoided liability in those circumstances…...

OP’s issue is that reg 7(6)(d) appears to only cover the situation where the claimant has moved out of the old home and into the new home. It doesn’t assist a claimant who has secured a new home but hasn’t yet moved in - even where the overlapping liability was unavoidable.

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Hi Elliot - you’re right - but as I read the regs, none of the various permutations provide for HB to be paid on the new dwelling before the claimant actually moves in. The regs provide for a claimant to be treated as having been in occupation so that HB can be paid for a past period when they weren’t - but only once the tenant has actually moved in.

Daphne
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I think you do have to have moved in. We always used to advise the person to do what they could to move in - get gas and electric connected, notify change of address to relevant people - doctors etc, register for council tax, get on electoral roll. Even if they couldn’t stay there if no furniture, the more time they spent there the easier it was to show they had moved in. However, if the person has already said they hadn’t moved in it is very difficult to backtrack

HB Anorak
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The problem with paying HB for the new dwelling in arrears after the person moves in is that HB has already been paid on the old home for that same period, so you are still stuck with the claimant not being treated as occupying two homes unless the move was delayed by a wait for adaptations.

There is a history of UT/Commissioners’ decisions on this, the most recent of which is quite interesting.  Here is a summary of how these cases have developed down the years:

CH/2201/2002, CH/3296/2003 and CH/2048/2003: all rejecting claims for HB on two homes where the claimant satisfies Reg 7(8) (HB before moving in) but not Reg 7(6) (occupying two home at the same time)

CSHB/385/2005 and CSHB/873/2005: both concerned with whether the four week overlap referred to in Reg 7(6)(d) can occur before the date of the move.  One of the decisions (by Judge Agnew) says it can, the other (by Judge May) says it cannot.  The decision that says the overlap can fall before the date of the move was based on a misreading of the regulation, possibly due to a printing error in the way the different levels of the reg were indented. The Judge read the words “for a period not exceeding 4 benefit weeks immediately preceding the date on which he moved” as applying to the whole of Reg 7(6), when in fact they are part of subparagraph (e) (disability adaptations).  He seems to have been unaware of 385/2005 - if he had known about it I doubt he would have dared to defy Douglas May - I know I wouldn’t <trembles>.  In the wake of these decisions, the Regulation was amended from 8/1/2007 as follows:

Before

in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period not exceeding 4 benefit weeks if he could not reasonably have avoided liability in respect of two dwellings

After

in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period not exceeding 4 benefit weeks from the date on which he moved if he could not reasonably have avoided liability in respect of two dwellings;

So that pretty much nailed it: you cannot get overlapping HB for a period falling before the date of the move unless Reg 7(6)(e) (adaptations) applies.  And the settled assumption was, until very recently, that in any other Reg 7(8) case HB can only be paid for the dwelling you are currently physically occupying - not the empty one you are waiting to move into after your social fund/local welfare award comes through.  But then along came the most recent and most interesting of the cases on this subject: 2014 UKUT 3 AAC.  The received wisdom that you only get HB on the home you are physically occupying is rejected in this case: Reg 7(8) displaces the default rule that HB is for the dwelling currently occupied as the home: where the conditions for being treated as occupying a dwelling before moving in are satisfied, it is that home for which HB is payable instead of the old one that you were waiting to move out of.  You don’t get HB on two homes, but at least you get paid for the new one.

Now there is a further difficulty in that, until the claimant has moved in, it is not known precisely where those four weeks fall so HB can only be paid retrospectively after the move takes place.  What if HB has already been paid for the old home during those four weeks?  The Judge says that will be an overpayment, which might or might not be recoverable under normal rules.  To avoid such an overpayment, it is suggested in the final paragraph of the decision that the Council could suspend HB pending the move - one of the conditions for Reg 7(8) to apply is that the Council is notified in advance of the move so there should be an opportunity to avoid the overpayment on the old dwelling.

For completeness, it seems to me that there could then follow a Reg 7(6)(d) overlap after the move, provided the claimant could not reasonably avoid remaining liable on the old dwelling.

 

Marion Edge
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Thank you so much to everyone who has responded.  I am very grateful for your views and advice.

Marion