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Exempt accommodation shenanigans

SamW
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Hi there hope everybody is still well and not going too stir crazy!

I have a client who is on UC. When he moved into his accommodation it was not classified as exempt accommodation. UC were covering his housing costs.

However in August last year the Local Authority reclassified the accommodation as exempt. Client has continued to get UC for his housing costs.

He is completely stuck as both the benefit cap and LHA are affecting him and because his rent is being paid direct to his landlord these cuts come out of the money that would normally be paid to him and after deductions for a fine and advance payment he is receiving literally 0 UC despite having no other income.

I know that normally exempt accommodation should be covered by HB. But what should have happened in the current situation where the address has not changed but its ‘classification’ has? Should the housing costs element continue? If it does continue the benefit cap/LHA should not apply? Or has this been overpaid since August? Might this be one of the few situations where a UC o/p is not recoverable (I dimly remember there being an exemption where an o/p has arisen because of an error on the part of a landlord)?

Let me know if further detail is required. I do remember there being a briefing that helped explain things but this no longer seems to show up on google.

Thanks!!

HB Anorak
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If there was no HB claim, the council cannot have designated it as exempt accommodation: that only happens as part of a decision on an HB claim, it doesn’t exist in the abstract.

Conversely, if UC has been paying it, then DWP hasn’t decided it’s exempt accommodation either.

I would suggest he puts in an HB claim now, the Council can then decide it is exempt accommodation as from now, UC housing element will stop going forward, benefit cap will no longer apply, and no-one needs to worry about the past year.

SamW
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HB Anorak - 24 June 2020 02:04 PM

If there was no HB claim, the council cannot have designated it as exempt accommodation: that only happens as part of a decision on an HB claim, it doesn’t exist in the abstract.

Conversely, if UC has been paying it, then DWP hasn’t decided it’s exempt accommodation either.

I would suggest he puts in an HB claim now, the Council can then decide it is exempt accommodation as from now, UC housing element will stop going forward, benefit cap will no longer apply, and no-one needs to worry about the past year.

Sorry to clarify - it is a big block of studio flats. LA decided in August to treat the whole block as exempt accommodation. So new UC claims would prompt the LA to email back to UC telling them not to pay the housing costs as property is exempt. But nothing seems to have happened with existing UC claims.

I’m not sure if I agree about the point about exempt status not existing ‘in the abstract’ - as far as I can tell the legislation doesn’t say anything about a property having to be designated in order to be exempt.

I agree practically though - what I’ve said to client so far is that whatever happens with any potential argument about there being an overpayment for the past period we need to get things sorted out moving forward as the current situation is unsustainable.

HB Anorak
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The definition of exempt accommodation says “the claimant” is provided with care, support or supervision.  The term “exempt accommodation” is misleading in that respect.  It isn’t the building itself that is exempt, it is the support received by the individual that makes his/her dwelling exempt.  You can have different people in the same building who are and aren’t in exempt accommodation.

The Council can of course apply a working presumption that claims from a certain project will tend to be accepted as exempt accommodation without a fuss.  But that stance carries no legal weight unless and until an actual real life person makes an HB claim.  If this person claims HB now, asserting that as from this week at the latest he receives support, the Council must make a decision on that claim and they will decide that it is or isn’t exempt accommodation as from the date in respect of which the claim is made.  the fact that they would have said it is exempt accommodation as early as last August had there been a claim is of no consequence - there was no claim and therefore nothing to decide.

The only risk I can see is that UC on their own initiative decide the claimant has always occupied exempt accommodation and has never been entitled to a housing element.  That is a decision for them to make because the only claim throughout the past year or so has been for UC.  The Council has no jurisdiction over that at all.  Any UC overpayment would be recoverable, but if it has been paid to the landlord there are special rules about from whom it is recoverable and the landlord might well be in the frame - depends whether it was the landlord’s fault, the claimant’s fault or no-one’s fault.

SamW
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HB Anorak - 24 June 2020 02:41 PM

The definition of exempt accommodation says “the claimant” is provided with care, support or supervision.  The term “exempt accommodation” is misleading in that respect.  It isn’t the building itself that is exempt, it is the support received by the individual that makes his/her dwelling exempt.  You can have different people in the same building who are and aren’t in exempt accommodation.

The Council can of course apply a working presumption that claims from a certain project will tend to be accepted as exempt accommodation without a fuss.  But that stance carries no legal weight unless and until an actual real life person makes an HB claim.  If this person claims HB now, asserting that as from this week at the latest he receives support, the Council must make a decision on that claim and they will decide that it is or isn’t exempt accommodation as from the date in respect of which the claim is made.  the fact that they would have said it is exempt accommodation as early as last August had there been a claim is of no consequence - there was no claim and therefore nothing to decide.

Ok got you now - put that way I agree with where you are coming from.

Thanks for getting back so quickly :)