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Housing Benefit/Non-dependent adult in prison

Stuart G
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Rainbow Money Advice, Barnet

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Client’s non-dependent adult son has been in prison from December 2018 to June 2020.

Local Authority have now decided that one bedroom was unoccupied during that period and they have retrospectively reduced client’s Housing Benefit by 14%, resulting in a significant overpayment. 

At this stage I don’t know whether client did or didn’t notify this change of circs at the time.  However, is there any useful argument against the Local Authority’s decision?

Also, when recalculating the Housing Benefit, can the Local Authority make a non-dependent deduction in respect of the non-dependent in prison?

Thanks.

 

HB Anorak
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The matter is determined by reference to Reg 7 applying the same rules that are used to decide whether the claimant personally occupies the dwelling: entitlement to bedrooms under the size criteria depends on who “occupies” the dwelling along with the claimant - long line of cases beginning with Marchant in the 1990s.  So we are concerned with the rules on temporary absence in HB Reg 7 here.

When dealing with temporary absence after the event, the Council must try to forget that it now knows how long the person was actually absent and consider instead how it would have looked at the time, from week to week.  Perhaps the non-dep was initially on remand, in which case 52 weeks’ absence would be allowed.  At the point when he was sentenced, had he already been absent for longer than 13 weeks?  If it took less than 13 weeks from arrest to sentence, when did it first seem unlikely he would return home within 13 weeks - was there a best case scenario that saw him released after no more than 13 weeks?  Or was he on remand until very late in the absence, in which case he remained subject to the 52-week limit for longer than 13 weeks maybe?

Depending when he was sentenced, which is the point at which he became entitled to 13 rather 52 weeks’ absence, and depending on the earliest realistic release date that would have seemed possible at the time, the point at which he ceased to occupy could be anywhere between zero and 52 weeks after he first left home.  If the Council is saying zero, there is a fair chance of getting the overpayment reduced at least.

As for non-dep deductions, the question is whether the non-dep “normally resides with” the claimant, but the UT said a couple of years ago (I forget the citation) that you cannot give “occupy” and “reside” different meanings in these circumstances, either it’s a bedroom plus a non-dep deduction, or it’s neither.  The deduction for an unemployed non-dep is roughly the same as a typical 14% bedroom tax deduction, so it could well be that the claimant more or less breaks even.

Stuart G
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Rainbow Money Advice, Barnet

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Thank you.

Looks like I need to find out more about when the son was remanded and when he was sentenced.  Anything else?

HB Anorak
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Length of sentence, probation officer’s view as to earliest likely release date as at date of sentencing

Stuart G
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Rainbow Money Advice, Barnet

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Thanks, especially for getting back to me so quickly.  Much appreciated.

Stuart G
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Rainbow Money Advice, Barnet

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Client tells me her son was arrested 4/11/18 and sentenced for two years on 10/11/18.  She is not aware of any predicted date of release.  She expects him to serve the full two years and to be released this coming November. 

I can understand, to some extent, why the government does not want people to have a three-bedroom house when only two are being occupied (although this takes us into a different discussion as to why there aren’t enough properties available to meet the demand).

What could the client do when her son was imprisoned?  Was she expected to immediately move out into a two-bedroom property and then seek one with three bedrooms when her son is released from prison? 

The Council will argue that client should have notified the Change of Circs immediately.  That would have avoided the current overpayment, however that does not address the unfairness of the reduction in Housing Benefit.

I’d be interested to know if there is any way we can challenge this retrospective deduction of 14%, please. 

Thanks.


 

HB Anorak
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Well, you probably don’t need a probation officer for this one.  As from 11/11/18 it was very likely indeed that his absence would exceed 13 weeks, so he ceases to be counted as an occupier from the following Monday.  Do check out what I said about the non-dep deduction though: unless he was under 25 and getting DWP benefit, the bedroom tax should be more or less balanced out by removal of the non-dep deduction.

Elliot Kent
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Stuart G - 10 September 2020 09:38 PM

What could the client do when her son was imprisoned?  Was she expected to immediately move out into a two-bedroom property and then seek one with three bedrooms when her son is released from prison?

As we know, the system is generally based around bright line rules as a proxy for real world needs. The argument has always been that DHP exists to deal with the edge cases. In a case like this, as identified above, there may often be no significant difference in the HB entitlement whether the son is in the property (NDD) or in prison (b. tax) but if his absence is creating temporary hardship either because of an exemption from an NDD or because he was contributing financially to the household and no longer is, then there would be a reasonable argument for a DHP.

[ Edited: 11 Sep 2020 at 11:16 am by Elliot Kent ]
Stuart G
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Rainbow Money Advice, Barnet

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Thanks for the responses. 

I’m waiting for client to provide further info and will take it from there.