Search rightsnet
Search options

Where

Benefit

Jurisdiction

Jurisdiction

From

to

Forum Home  →  Discussion  →  Housing costs  →  Thread

UC non dep charge for temporary absence

LauraGSLC
forum member

MMAS - South Lanarkshire Council

Send message

Total Posts: 11

Joined: 7 November 2012

Client on UC and is shielding - non dep daughter temporarily moved out and is living elsewhere as a result (not expected to be more than 6 months).  She is not liable for housing costs anywhere else.
Is she still treated as living there for UC purposes or is there any way to try and ask for the non dep charge to be cancelled during this period?
Thanks in advance.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 383

Joined: 24 November 2017

LauraGSLC - 12 May 2020 01:26 PM

Client on UC and is shielding - non dep daughter temporarily moved out and is living elsewhere as a result (not expected to be more than 6 months).  She is not liable for housing costs anywhere else.
Is she still treated as living there for UC purposes or is there any way to try and ask for the non dep charge to be cancelled during this period?
Thanks in advance.

Consider that if daughter has moved out there may be a spare bedroom deduction if social housing or a reduction in the applicable LHA if number of occupants has dropped. This might actually cost more than the non dependant deduction.

LauraGSLC
forum member

MMAS - South Lanarkshire Council

Send message

Total Posts: 11

Joined: 7 November 2012

Our council have said they would pay a DHP for his extra room if UC accept the daughter is not living there.

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 383

Joined: 24 November 2017

Returning to your original question then the question comes back to where is the daughter currently considered to be ‘normally’ living. I can’t see any guidance on timescales in respect of temporary absence for non-dependants. My instinct is that if most of her belongings are still in the house she is still normally resident there.

Mairi
forum member

Welfare rights officer - Dunedin Canmore Housing Association

Send message

Total Posts: 203

Joined: 25 June 2010

Would it be worth making an application for an ‘ordinary’ DHP request to cover the non dep deduction while the non dep is out of the house on the grounds of household hardship and exceptional circumstances?  Not guaranteed but maybe worth a try.

(For those who don’t know, the Scottish Government is committed to covering the under occupancy deductions for claimants here.)

Prisca
forum member

benefits section (training & accuracy) Bristol city council

Send message

Total Posts: 42

Joined: 20 August 2015

id try a double pronged attach - explain to UC the situation and see what they say and in the mean time also apply for a DHP for the non dep charge , explaining that daughter is currently away from home due to shielding and therefore not contributing , and explain that the DHP will be needed either to cover the non dep charge, or to cover the size restriction. Do not delay in applying for the DHP! 
Once DWP have made a decision, then you can advise the local authority accordingly. If shielding, its likely the DHP will only be for a short period - think 12 weeks is the recommended shielding time.
of course, once daughter moved=s back, the idea is that they would self isolate for a further 2 weeks - if daughter is working that might not be able to happen , which would extend the time away, but we get into the area of where the daighters “normal” residence is.
Lots of kids move out and fly the nest but leave an awful lot of their possessions at their parents home…. sometimes for years - its what attics were made for!

Ianb
forum member

Macmillan benefits team, Citizens Advice Bristol

Send message

Total Posts: 383

Joined: 24 November 2017

Prisca - 14 May 2020 12:45 PM

Lots of kids move out and fly the nest but leave an awful lot of their possessions at their parents home…. sometimes for years - its what attics were made for!

I don’t think my kids would find any space in my attic for their stuff!

Stainsby
forum member

Welfare rights adviser - Plumstead Community Law Centre

Send message

Total Posts: 343

Joined: 17 June 2010

She could not be “normally residing” anywhere at the moment depending on her intentions

I represented in CH/3935/2007 and got short shrift over some of my arguments from Mr Commissioner Jacobs as he then was.  Judge Jacobs had this to say at [29]

” 29. The claimant’s representative has cited cases to me, but as he accepts this is a matter of fact. It is not proper to argue by analogy from the time taken in other cases to become normally resident. Each case has to be determined in the circumstances of its own particular facts. I do not find it helpful to consider the facts of other cases. Nor do I find it helpful to consider how long a claimant may be deemed to continue to occupy a dwelling despite being absent therefrom. Those are deeming provisions and exist for a different purpose. They apply despite the actual facts of where the claimant is normally residing, whereas the issue here depends on the actual facts. Finally, I accept that the circumstances of the claimant and her daughter were, as the representative says, ‘abnormal’. However, it is still possible that the claimant’s daughter was normally residing with her despite the abnormal circumstances in which that state of affairs came about.”

If your client’s daughter is shielding during lock down and intends to move to somewhere other than back into your client’s home once the pandemic is over I would argue that she is not a non dependant (notwithstanding the bedroom tax/reduced LHA if you go down that route).  On the other hand if the clear intention is to return her “normal” residence could be with her mother.

I will refrain here from arguing by analogy from one decision to another but I did cite CIS/14850/1996 when the case was before the FtT.

In CIS/14850/1996, Mr Commissioner Walker QC held at [10]]

“I turn now, to the guidance which I think the new tribunal may require. It is not possible to lay down guidelines as to all the factors that may be relevant to the determination of a “normal residence” question. In CSIS/76/91 I observed that whether or not someone was normally residing with another is an intensely practical question for a tribunal to answer in light of their common sense. Arising out of the submissions now made to me I consider that I can provide but little further guidance. I have concluded that it may, and in this case will be, relevant to consider the reason why the residence started; the relationship, if any, including its history, between those concerned; the motivations involved; the purpose for which the residence has been taken up; its duration and, as a matter of secondary determination, whether that is within or exceeds what might be expected from time to time having regard to the purpose; and of course whether there is any alternative house in which residence is or could be taken up. In this particular case Mrs Ostle was at the start virtually unknown to the claimant, as he suggested to me, although it will be for the tribunal alone to consider and determine the matter, then whether or not there was any actual relationship between them of a family nature one might be rather slower to conclude, even with the passage of time, that she was normally resident with the claimant, having regard to the underlying purpose of the Act as explained by Lord Slynn, than were she a close relative well known to the claimant over many years. And possibly even longer if there was no relationship. Further, if somebody takes another into their house “whilst they seek a council house of their own” that may indicate a general acceptance of a longish term but yet be a relative weak pointer to the answer for the “normal residence” question than if there was no such reason. It is for the tribunal and not for me to consider whether what the claimant and Mrs Ostle did in respect of seeking to get her an alternative home was within what, in the area, would be accepted as reasonable or not. In this case, moreover, it is not clear whether the claimant had any possible recourse to her former home. Thus had she been a co-owner or co-tenant she might well have been able to take steps to obtain or regain possession of it. No steps in that regard might strengthen the adjudication officer’s case. Equally if, as was suggested to me but again it will be for the tribunal to determine to what if any extent they accept the evidence, the relevant court has kept postponing determining the issue of custody and so in effect postponing any resolution of an alternative house for Mrs Ostle. That may mean that the time involved should be discounted, substantially in or whole, when considering the extent to which the overall time span of being in the claimant’s house establishes “habitual residence”. These are the sort of factors that I would expect a tribunal to seek to consider although the extent to which they make findings about them and the weight which they decide to give them will be for them to determine in light of the evidence put before them and their common sense.”

I think you really need to look at what your client and her daughter’s intentions are

[ Edited: 15 May 2020 at 06:04 pm by Stainsby ]

File Attachments