HB Entitlement limited by subsidy? 

No this is not correct: the subsidy limits are just that.

The eligible rent for HB is calculated under the same rules as it would be for a general needs tenant, with the exception that the bedroom tax does not normally apply in TA.

For a registered HA, the eligible rent should therefore be the full amount charged minus ineligible service charges, unless the local authority considers the rent to be unreasonably high and refers it to the Rent Officer.  In that case, HB would be restricted to the Local Reference Rent determined by the Rent Officer.  Presumably they have not applied for a Rent Officer’s determination in this case.

There is an override power in HB Reg 12B(6) to limit the HB eligible rent if it would otherwise be “greater than it is reasonable to meet by way of HB”, but:

- I find it extremely difficult to think of a plausible set of circumstances in which the rent would NOT be unreasonably high for the purpose of applying for an RO determination, but still “greater than reasonable” for the purpose of Reg 12B(6)
- It is not the most “joined up” approach for one part of the Council to be saying that an arrangement entered into by a different department is unreasonable

Thank you. Will proceed with appeal and will post an update with how I got on

This well known case from 1989 is just as relevant now so it seems

The visual design of that handout is rather striking - bold colours and plenty of clipart gavels!

Some rather recognisable names at the bar in that case too, in particular Kate Markus, now of course a UT judge and president of the SEC and David Pannick, now Lord, consistently regarded as one of the greatest lawyers of his generation, but perhaps best known for making a series of pained faces at Boris Johnson in a recent select committee hearing.

It’s from the SHARK case law collection, I don’t know who was responsible for curating it but there are about 30 HB cases in it.  I’ve got the set, dating from 1994.

Thank you for the case law.  This is great!!

I am yet to receive a decision notice but have been told the decision verbally by a HB subsidy officer?

It didn’t seem like any process around rent restriction /any rent officer determination has been made based on our conversation but I could be wrong.

Bit of a weird case but will definitely keep this post updated!

Afternoon All,

I am still waiting for an official ‘decision notice’ or response from LA to revision request submitted on behalf of the tenant.

Have had sight of previous emails which includes a section 208 notice from the placing borough to the current borough, discharging homeless duty for this tenant. As far as I am aware, this means the tenant is not considered as being in temporary housing for HB purposes.

It appears that the current borough are relying upon the HB Regs for “private rented temporary accommodation properties” - I have never heard of these Regs. This seems counter intuitive - how can a property be temporary accommodation and private rented?!!

To me, if they have discharged duty then the tenancy effectively becomes a private AST and should be capped at LHA rates (despite being a housing association, they usually use these rates as a base). Again, if the rent is unreasonably high then HB should have restricted the rent through rent officer referral process not by what they are able to claim back through subsidy.

I verbally challenged the ‘subsidy officer’ this morning and was told that the private rented temporary accommodation Regs mean that they do not have to restrict the rent this way and that if I appeal this decision I am going to lose! As I don’t have the full facts, I can’t quote specifics from their decision notice but this case has been ongoing since 2020.

Any ideas??

I never submit revision requests in HB cases I always go straight to appeal

The LA can chose to revise its decision before the appeal is determined

The other advantage of going straight to appeal is the the LA have to provide you with a full bundle and you should then be able to see clearly what facts they are relying on and also the law that they rely on.

You will otherwise be going round in circles not knowing where you are with the case