The Ultimate HB/UC TA housing costs debate

Over the past few months we have seen a pattern of problems relating to housing costs on our temporary accommodation properties. We have residents who are placed in temporary accommodation; we advise them to make a claim for housing benefits for their rent. However once the claim has been considered by the local authority tenants are being advised they have no entitlement to housing benefits and must apply for Universal Credits housing costs.

Residents then complete a universal credit application – including housing costs – which are then being rejected by the DWP as they advise they cannot cover housings costs under temporary accommodation.
As a housing association we might be unusual as we provide Temporary Accommodation (TA) tenants AST’s rather than licences for TA, which maybe a cause of confusion for Housing Benefit departments.

Universal Credit Regulation 2013
We are applying and interpreting our advice in line with the UC regulations below - which means that the accommodation is temporary accommodation by the UC definition.

21. Meaning of ‘Temporary Accommodation’…
…3B (1) The accommodation referred to in paragraph (3)(i) is accommodation which falls within Case 1 or Case 2.
...
(3) Case 2 is where—
(a)rent payments are payable to a provider of social housing other than a local authority;
(b)that provider makes the accommodation available to the renter in pursuance of arrangements made with it by a local authority—
(i)to discharge any of the local authority’s functions under Part II of the Housing (Scotland) Act 1987, Part VII of the Housing Act 1996 or Part 2 of the Housing (Wales) Act 2014, or
(ii)to prevent the person being or becoming homeless within the meaning of Part 7 of the Housing Act 1996 or Part 2 of the Housing (Scotland) Act 1987; and
(c)the accommodation is not exempt accommodation.

The regulations do not state the type of tenancy as relevant. In light of these regulations, where a local authority makes a property run by a social registered landlord available to the Claimant, pursuant of its functions under Part VII of the Housing Act 1996 and/or to prevent homelessness within the meaning of Part VII of the Housing Act 1996, the property will be ‘Temporary Accommodation’ for the purposes of Universal Credit. 

However, it’s often the case that the particular Local Authority will then refuse to accept the tenant’s application stating that our accommodation is not considered as temporary accommodation and misadvising them to make claims for Universal Credit.  They often comment that any tenancy agreement over 12 months cannot be classed as temporary accommodation.

We also do not believe the accommodation we provide is a Private Rent 12 month AST, as it is managed by our temporary accommodation department and not our private renting company, so this isn’t an issue either.
In our opinion, as long as the property we allocate to our residents is provided to assist a Local Authority to discharge its Part VII duty ( homelessness duty) by preventing homelessness the property is temporary housing, regardless of whether the Part VII duty to accommodate continues or not. We make the particular accommodation available to the renter in pursuance of arrangements made with it by the LA both to discharge the functions under part 7 of the housing act 1996 or alternatively to prevent the renter from being or becoming homeless within the meaning of part 7 of the housing act.

Would anyone be able to confirm the interpretation above is reasonable? Also, what is the best route to challenge any erroneous decision… Appealing or Judicial Review? Finally, has anyone else come across this problem?

I have discussed this with your colleague Alice, and also with HB officers in some of the areas where you operate.  It’s a really interesting point (for me, as an outsider) - probably of more than academic interest to you trying to get the rent paid!

I believe this turns on the interpretation of the terminology used in heads (i) and (ii) of para 3B(3)(b).

In head (i), the word “discharge” is used.  In homelessness practice, this is generally understood to mean the moment when the Council closes its file: having discharged its duty, the Council is no longer providing temporary accommodation.  That clearly cannot be the intended meaning of head (i) - the intention is the exact opposite, it is meant to cover accommodation provided while there is an ongoing duty to accommodate and before that duty is finally discharged.

In head (ii), I believe the intention is to cover temporary accommodation provided to a person who is threatened with homelessness up to the point when the duty is finally discharged, so that they never actually become homeless.  But it could be read as including the accommodation provided at the point when the duty is finally discharged.

It would perhaps have been better to nail this down by referring to specific sections of the Housing Act 1996 (and its Scottish and Welsh equivalents) - eg accommodation made available under s188 of HA 1996.  Part VII is too general.

I don’t know that Part VII is too general. I think head (i) is intended to cover interim accommodation provided under s188, 199A, 200 or 204, temporary accommodation provided as part of the s190 duty to the “intentionally homeless” and then accommodation provided in furtherance of the s193 main housing duty. Possibly it might also cover cases where referrals to providers are made as part of a personalised housing plan under a prevention or relief duty. I think head (ii) covers situations where duties have ended but the applicant needs to run out a notice period, or where councils accommodate outside of any statutory duty from Part VII - e.g. emergency weather provision. It is really probably designed as a catchall so that HB decision makers don’t need to worry about analysing too closely exactly which Part VII duties are being used.

I think the point about s193 is that this is a continuing duty which is only brought to an end in the events described in s193(5)-(8). The distinction to be drawn is then between accommodation provided as part of the duty and an offer of accommodation which - when accepted - ends the duty entirely. It seems to me that if the accommodation is being provided in circumstances where the fact of acceptance brings the duty to an end, it cannot be described as discharging a Part VII function. That seems to me to be the logical point to draw a line in order to avoid the nonsense position where all kinds of permanent accommodation would fall into the “temporary accommodation” definition.

But otherwise, it seems to me that if the Council has accepted that it owes you a s193 duty, it has not brought that duty to an end and you are occupying accommodation which it has organised - then it must be head (i) accommodation.

Really, there ought to be a paper trail for all of this which the Council should have access to. Its homeless department ought to have issued decision letters explaining exactly what it has done in terms of Part VII. If it is expressly interim or temp, then that answers the question. If they have accepted a s193 duty, then if acceptance of your accommodation is proposed to bring that duty to an end, there will be clear evidence of that available. That should really make this very easy for them.

And yes, the “you have an AST so its not temp” seems a complete red herring. No part of the definition under the heading relates to the security of tenure - it is not a part of the definition of temporary accommodation that the accommodation must actually be temporary.

I would totally agree with most of what Elliott has said. I would agree with HB Anorak that there is sometimes some confusion in homelessness circles about the use of the term “discharge” in relation to Part VII duties, but I don’t think there’s any need for confusion. As Elliott points out, if “discharge” was the same as “end” then Part VII wouldn’t make any sense at all - for example, there is no sense in which a s188 duty is ended by providing interim accommodation. For clarification of this, you only need to look at s206 - it talks about providing accommodation in discharge of duties, and the authority’s power to charge the applicant while they are discharging the duty.

Where I’d disagree with Elliott is on the head (ii) accommodation. But to be honest I’m not sure what head (ii) does mean. SWEP does not prevent homelessness - it just mitigates against the effects of homelessness by providing homeless people with somewhere warm and dry to stay; but they are still homeless within Part VII. But homelessness prevention in Part VII means ensuring that the accommodation which is threatened continues to be available to the applicant - so I’m not sure how a housing association can help with this unless they are the landlord in the first place?

So in answer to the original question, I would strongly agree that HB ought to be paying while you are providing temporary accommodation, but I don’t think it’s so clear cut what happens when the accommodation duty ends. The accommodation is no longer being provided in discharge of a Part VII duty. So then perhaps the tenure becomes more significant - if it’s a fixed term AST you made it available under Part VII - a one off event, head (ii) satisfied. But if it’s a weekly periodic AST (from the start, or by virtue of s5 HA 1988), perhaps the act of making it available recurs every week (subject to notice)? It’s a really interesting question.

Assuming you do have a case, then I can’t see any reason why your tenants’ remedy wouldn’t be an appeal. Having said that, if they’ve claimed UC because they thought they needed to do it to get housing costs, and they lose their other legacy benefits as a result, there’s not a lot you can do about that. You’d only be challenging the housing costs and HB decisions.

I’ve just reread your question and realise you’re asking about challenging the HB authority over its decision not to even accept an application. They can’t do that, so the first thing I’d do is point out that they need to make a decision on the application, and if they refuse, then you could complain &/or threaten JR. I feel sure there’s a thread about refusing to accept applications somewhere…

Thanks everyone for your input.

I will let you know how we get on…

Hello all

Do you have a client who would be willing to be part of CPAG’s strategic litigation?

CPAG is looking for a Universal Credit claimant in temporary accommodation who is struggling to get their housing costs covered through either Universal Credit or Housing Benefit.  In particular, CPAG is looking for claimants where UC and HB both claim that they are not responsible for paying housing costs.

This situation arises where there is a dispute over whether the claimant is classed as being in temporary accommodation after having been provided with their housing association tenancy as a result of a local authority homelessness department referring the individual to the housing association in order to discharge the local authority’s homelessness duty.

To refer a client living in England or Wales please send me a Rightsnet message or email .(JavaScript must be enabled to view this email address) with any questions.

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