Housing costs mess
Got a very sticky scenario and I’d be grateful for people’s thoughts. I’m going to try and keep it broad.
Client is very chaotic with MH problems and has a social housing tenancy. They were getting ESA, PIP, HB. HB didn’t know about PIP, so no SDP in place at this stage. They went to prison for five weeks and HB stopped at the date they went into prison, they were out for two weeks (although didn’t return to the property due to ASB issues) and they began a UC claim that was later terminated because they went back to prison. They went back to prison within two weeks of being released for another three months i.e. less than a full AP from when the UC claim was made.
They then left prison again, UC established with no housing costs and then PIP re-established. HB in place due to him being housed temporarily, pending other options. This has SDP in it. He has articulated that broadly he doesn’t want to go back to the flat due to anti social behaviour but is very vulnerable and is being helped to explore supported housing but that isn’t guaranteed. He is liable for rent throughout and therefore has very significant arrears on original property.
I want to try and reduce the rent arrears as much as I can.
Here are my thoughts:
1) Get HB reinstated for initial short prison sentence
2) Challenge the failure of UC when he went back into prison as he managed to establish a claim and therefore gets up to 6 months of HC.
3) Can make a broad argument about intention to return taking into account that client has a social housing tenancy and is very vulnerable which will be through the above challenged UC claim and current UC claim he’s established.
4) Do we think it’s worth getting him off UC onto SDP in light of HB with SDP? And as part of this, establish a dual HB due to intention to return following threat of violence.
Does anyone have any other thoughts? Were they out of prison long enough to establish a UC claim for the purposes of housing costs being paid while in prison?
Hope my summary is relatively clear…
Big thanks in advance
what flavour ESA was he on? Income related or Contributions based?
if he was n Income related, that its a passported benefit, so he wouldnt hacve a severe disability premium in his HB, because we dont do applicable amounts on passported claims ( because they automatically get maximum HB)
However, if he was on ESA Incpme related, his ESA should have a severe disability premium in it, and that should have een enough for the UC claim to be rejected
Going to prison for a a few weeks isnt a reason to terminate HB - so you need to establish why HB was ended and when . if they were advised he was in prison, then they needed to suspend and establish his period of absence, and whether he was on remand or sentenced. (and whether in prison in Great Britain!)
assuming prison was in GB, he still has temp absense for up to 13 weeks for ANY reason. But he needs to return to the house. If he was SENTENCED when he went to prison, (rather than being on remand) o prison for 2/3 weeks, then was released but didnt go home, then went back to prison, his total absence exceeded 13 weeks an no HB for any period his absense.
If he was on remand, then he can be away from home for up to 52 weeks, but from what you say, it sounds like he may have been sentenced ( released after a short time, then returned to prison , presumably because he broke the terms of his early release aso was put back in prison to serve the balance of his sentence?)
Re UC, much depends on whether he was getting the sdp in his ESA IR. If he was then it should have been rejected.
iof he’s on ESA conts, then he has to stay on UC because theres no legacy benefit with a severe disability premium ( because you say HB didnt know about the PIP)
I **thought** UC only paid housing costs for prisoners ( remand or sentenced) if they were already getting the housing costs prior to goin to prison…. but Im not sure
A discretionary Housing Payment requireds either HB or Housing Element of UC to be in payment for it to be considered, so if he’s getting HB now, they may be able to look at the arreras, but the DHP for arrears still needs to relate to a period when there was HB (or UCHE ) in payment, and it doesnt sound like he had a shortfall between his rent/ HB when HB was in payment before he went to prison.
Hopefully someone wise / more knowledgeable will reply soon!
[ Edited: 16 Oct 2020 at 04:38 pm by Prisca ]
I think you have essentially got it. HB should not have stopped on the first trip to prison (at least on the basis of known information) and a UC claim should not have been possible on his release because of the SDP gateway..
(HB still includes the SDP in the applicable amount, even when a claimant is “passported”, so the SDP gateway ought to have operated to prevent the claim - however the second trip to prison would have almost certainly brought his legacy benefits to an end and forced a UC claim on release, so I am not sure arguing about the gateway gets you anywhere in terms of the bigger picture.)
It isn’t immediately obvious why the first UC claim didn’t include housing costs - it sounds like it did not get as far as the first payment. This is probably where you need to focus your attention. On the face of it, the starting point is whether he was occupying the property at the start of the claim (or whether he could be treated as occupying it because he was living elsewhere because of fear of violence). If neither apply, then that’s probably the end of the road.
A possible complication which then arises is that the claimant went to prison within the first assessment period. Arguably, the rule which allows prisoners to remain entitled to housing costs during their incarceration does not apply until after the end of the first AP, because going to prison is a change of circumstances which is backdated to the start of the AP n which it occurred. I am not sure what the DWP take on this is - I am always careful to advise my clients to avoid committing crimes until after they have their first payment.
[ Edited: 16 Oct 2020 at 05:18 pm by Elliot Kent ]
To my mind, it is a case of seeing whether he was correctly paid on the basis of “temporary absence” whilst in prison… and then as you say making a claim on the basis of a “liability for two homes” as he was in fear of violence (fear of violence doesn’t need to be domestic violence), if he went back to the original home…. now that he is, as you say “housed temporarily.”
In order to show fear of violence its a case of it doesn’t have to be physical violence, it could be threatening or intimidating behaviour, or another form of abuse. If for example your client was being cuckooed I think he would have a strong case. If it is the council who is temporarily accommodating him (under section188) on the grounds it was unsafe to return to his original social tenancy again that should help you show this.
So it appears you got this?