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Exempt Supported Accommodation - HB Refused from start of Tenancy
We submitted new HB claims for residents in ‘‘exempt accommodation’’ of which we were the newly appointed landlord
Two queries
First LA
From the outset we made it clear on the HB applications that the accommodation was to be considered exempt as all the relevant criteria had been met under Cat 1 Specified Accommodation.
LHA rent was put into payment.
Eventually, when the local authority accepted that our residents accommodation was ‘‘exempt’’ they awarded the full HB costs from the date they made that decision. They have refused to backdate the decision to award full rent from the start of claims, regardless of the fact that non of the tenants circumstances had changed in any way. A point we have argued. This has left the tenants in 6 months arrears for the shortfall between LHA and actual rent.
Can we, or our residents appeal this ? and if so, can anyone help provide any useful legislation, case law or argument we can put forward.
Second
The second concerns a local authority who, despite our submitting new HB claims for another property we took over,where we submitted the accommodation was exempt, refuse to recognise this status. The LA Referred our case to the local Valuation Officer to establish a fair rent. We submitted formal exempt accommodation questionnaires. Exempt accommodation status has been refused (both residents lack mental capacity and require 24/7 care due to substantial disability). The LA argue that as the LA provide support via their social services department, the rent having been established, their is no need for third party involvement. Effectively we are not being paid our intensive management fee, or eligible service charges for maintenance and repairs, dep. and sinking, window cleaning, gardening, depreciation etc. Again any ideas?
On the first point - that just seems wrong to me. They are presumably revising a decision due to error, so I don’t see why that would not go back to the date of the original decision. They seem to be applying the regs for supercession due to an advantageous change, but as you say, that isn’t what this is.
You are a non-profit registered provider according to the Homes England spreadsheet. That means there are three possible ways your eligible rent is calculated for HB purposes and non of them, ever ever ever, is LHA. So the first decision is wrong for that reason as well. HB Reg 13C could not be clearer: the LHA does not apply where the landlord is a registered non-profit provider.
So what are the three possible correct options?
Choosing the correct option depends on whether the tenancy is referred to the Rent Officer. The Council must do this in the case of a registered provider if it considers the rent payable for the dwelling to be unreasonably high. Otherwise, RP tenancies are not referred to the RO. Therefore the second Council must have decided that the rent is unreasonably high.
Option 1. If the rent is not referred to the RO then there is no particular restriction in an HA case other than benefit cap or bedroom tax, neither of which is likely to apply in a supported living setting with an RP landlord because there won’t be spare bedrooms according to the size criteria and the accommodation will fall within the “specified accommodation” definition that for all practical purposes exempts it from the benefit cap. So the first option is: vanilla RP case, pay full rent less usual ineligible service charges. Option 1 does not require any narrowing down of the specified accommodation categories - it is immaterial whether the tenancy is Cat 1 exempt or Cat 2 (non-profit landlord and claimant admitted in order to receive support).
Options 2 and 3. The other two options follow on from RO referral. The consequences of RO referral then depend whether it is exempt accommodation. Exempt accommodation requires that the landlord is a non-profit body and that it also provides the claimant with more than minimal support, or someone directly answerable to the landlord does so on the landlord’s behalf. Council 2 has clearly decided that you are not providing support. HB is then based on the Local Reference Rent or Claim Related Rent, whichever is less. There is normally no further adjustment for service charges. Whereas if you were providing exempt accommodation there is a very high threshold for the Council to justify any kind of restriction and you would usually end up with a vanilla calculation as in Option 1.
So the key to it all is whether BTL is providing support. There are wheelbarrowloads of UT cases on the question whether a landlord in supported living has a meaningful support role alongside the commissioned provider. The decisions usually go against the claimant - the evidence does not normally show that the very extensive commissioned service has left enough of a niche for the landlord. The only exceptions I am aware of were three cases issued on the same day on 2009 where Judge Turnbull found that intensive management and especially supportive repairs amounted to support on the particular facts of those cases. No other claimant has ever succeeded at UT level on the “IHM = support” point - so you cannot take that for granted.
Now, the Council has only referred your rent to the RO in the first place because in its opinion the rent is unreasonably high. I don’t know why they take that view, but one issue mihgt be the manner in which you procure your accommodation: does BTL own it or lease it from third parties? Local authorities all over the country are starting to get tougher on greedy lease charges, don’t know whether that might be an issue in your case. There are investors and middlemen who target this sector because for some years they have been able to get away with utterly preposterous lease charges out of all proportion to any kind of sensible market rent. It’s a microcosm of the whole PFI scandal (MoD aircraft in the news this week etc). The head landlord in these cases is doing nothing more than provide the accommodation - all of the higher costs associated with the client group fall on the tenant (i.e. the claimant’s immediate landlord), and yet they are charging double, treble or more the market rent for the accommodation. That could explain the Council’s decision in your case, but I would need to know more about how the rent breaks down before being able to say for sure.
Thanks Anorak - I am going to have to go away to process this.
Where will I find copies of the UT decisions - is there any particular website or book etc. which deals with this area of benefit -otherwise I shall have to do a few general searches.
I will get back to you when I have thought this through. Thank you for your in depth reply - very helpful.
Thanks Andy also. Great to know an LA is in agreement with us.
Where will I find copies of the UT decisions - is there any particular website or book etc. which deals with this area of benefit -otherwise I shall have to do a few general searches.
Here’s the result of a search on rightsnet for “exempt accommodation” under HB decisions - will get you started at least…
This one from Daphne’s list is a good one to start with because it contains links to a few of the others. The ones where the claimant won are CH/150/2007, CH/4432/2006 and CH/200/2009 so you will want to seek out parallels with your tenancies in those three. The more detailed the evidence, the better the chances - record every intervention that you consider to be support: date, duration, action taken etc. But sometimes, there just isn’t enough input from the landlord irrespective of how good the evidence is.
Thank you. All Noted and I have taken your advice on-board.
can I piggy back onto this with another issue - it is exempt accommodation but a slightly different angle - the problem in my case is that HB have refused to award anything including backdate because the claim has been deemed ineffective due to failure to supply all relevant info
the manager at the scheme has held her hands up with the LA and said its our fault - we let the young person down and failed to provide the information
however HB are categorically refusing to award or backdate from February despite numerous attempts / conversations between the management and HB
are there any avenues that could be pursued as these tenants are now over 6 months in arrears
thanks
Three questions for you:
1. Do they have formal decisions refusing HB, and if so could you upload a copy?
2. Is the landlord acting as appointee or did they sign their own HB claims?
3. Is the establishment a hostel?
Answers to these are relevant to time limits, merits of appeal and grounds for appeal. Thanks.