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Forum Home  →  Discussion  →  Housing costs  →  Thread

No HB even though in temporary accommodation?

Kelly @ NHHG
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Notting Hill Housing

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Joined: 20 November 2017

We’ve had a number of cases of tenants who have been moved into “temporary accommodation” provided by our housing association.  For these tenancies, we act as an intermediary for private landlords and therefore the rents are at least market rate - not affordable at all.

Unfortunately, once placed in our temporary accommodation, the local authorities have been discharging duty. 
This means that UC claimants can’t claim HB and are subject to the LHA and benefit caps on their rent.  This results in insurmountable rent arrears due to the massive shortfall.

Claimants subject to the benefit cap are finding that when an APA is in place, the full rent is being taken out of their UC - leaving them with little or no personal allowance, and no eligibility for DHP.

1. Housing issue
Is the local authority right to discharge duty in this way?  Surely, there must be some regard to affordability.  (I note that the majority of tenants experiencing this have been in TA for many years and are only encountering this problem now that UC is being rolled out).

Many of the tenants appear to be oblivious that the LA has even discharged duty at all - definitely a housing issue.

2. Benefit cap & DHP
Is there an easy way to address this?  LAs are reluctant to pay DHP towards a “shortfall” when UC appears to be covering the rent.  UC appear to be applying the benefit cap to the award as a whole, rather than cutting through the housing costs, as with legacy benefits and HB.

Tom B (WRAMAS)
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WRAMAS - Bristol City Council

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Where you refer to temporary accommodation; are these households being offered ASTs?

Under HRA, I believe the LA can discharge relief duties with a 6mth+ AST and can discharge full duties with a 12mth+ AST

The LA must consider affordability when determining whether an accommodation offer is ‘suitable’. See chapter 17 of the MHCLG guidance (https://www.gov.uk/guidance/homelessness-code-of-guidance-for-local-authorities/chapter-17-suitability-of-accommodation).

The pre-HRA guidance linked affordability directly to applicable amounts but 2 child limit, benefit cap, UC have moved the goalposts somewhat. The Supreme Court has granted permission to appeal against the decision in Samuels v Birmingham City Council which touches on the issue of affordability (https://nearlylegal.co.uk/2015/11/affordability-and-intentionality-adding-it-up/)

Sally63
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Generalist Adviser, Southwark Citizens Advice Bureau

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OTOH if the tenants have been in Temp Accom for many years they will have been placed there under the HA 1988 ie on grounds of priority need. They should have been assessed and either granted the main housing duty or not a long time ago.

If, as it sounds like, they were granted the main housing duty that doesn’t go away with a 6-mth AST and if it has been discharged like that there should be a reviewable decision that the tenant is no longer owed the MHD etc.

Maybe try and establish their homelessness history and find out what decisions have been taken, when and by whom and if they have been properly discharged rather than just abandoned

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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On the DHP point, this issue blew up towards the end of 2016 and then died down again after DWP withdrew some misconceived guidance.

On a very strict reading of the DHP Regs, a person whose rent is paid in full does not require further assistance to meet their housing costs, even if meeting their housing costs in full has simply displaced the problem to their living costs.  DWP no longer supports that strict reading, and concedes that a DHP may be paid where a person required further assistance to meet their housing costs without starving

The benefit cap is being applied correctly in these cases: the benefit cap determines the amount of the UC award, the question whether some or all of that award should then be paid to the landlord comes afterwards and is separate from the cap.  The idea that the cap is in some way related to rent is the old way of thinking.  But there is no reason why a DHP cannot be paid, subject to normal policy/discretion.

I am concerned about the reference to LHA though.  If you are a registered provider, the only way that either HB or UC should be assessed by reference to LHA is where UC contains a housing element for temporary accommodation provided under a continuing 1996 Act duty, and that housing element has been in place since before 11 April 2018.  In every other scenario, LHA is never the correct option.

Kelly @ NHHG
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Notting Hill Housing

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Thank you all for these replies - it’s given me food for thought.  I’ll be discussing this further with my colleagues and posting again once we’ve done a bit of investigation!