HB calculation - Supported accommodation (UC Claimant)

Hi all,

I am currently assisting a client who is in supported (exempt) accommodation who receives HB for housing costs and UC for everything else.

She is in self-employment but subject to MIF within UC and therefore treated as having earnings that she doesn’t actually have (this bit I understand).

Are the local authority correct in their approach to use the income from UC to calculate her HB entitlement or should they be making their own decision on her entitlement based on her actual self-employed income?

I would be grateful for any advice.

Her UC entitlement should passport her to maximum HB.

I have seen cases where a tenant’s income has taken them out of UC for a month due to having two payslips during an AP so they weren’t passported for HB. HB then just took UC’s figure for income and decided they weren’t entitled to any HB either. When I challenged them on this they accepted that they had to calculate the income using the HB Regs - so they had to treat the four weekly payslips as what they were, rather than just following UC in squeezing eight weeks into a month.

I can see a similar thing could happen in your case - if the MIF meant there was no UC entitlement, then HB could not adopt UC’s method of treating them as having income they didn’t really have, because they would have to use the HB Regs income rules.

But, as Charles says, if there’s any UC then the HB Regs treat them as having no income.

There is a case currently awaiting decision by the UT where it is being argued that the claimant remains “on” UC for the purpose of HB passporting during periods when their income is too high to qualify for UC but the six-month link to when they last qualified has not expired.  You will notice I have carefully avoided using the word “entitled” there because, apparently, the claimant’s argument relies on the following from HB Reg 2(3B):

“For the purposes of these Regulations, a person (“P”) is on universal credit on any day in respect of which P is entitled to universal credit (whether it is in payment or not)”

Now I would have thought the purpose of the words in brackets is to cover cases where payment of UC is suspended, or there is a delay in making the award and it is subsequently paid in arrears.  Surely no-one is “entitled” to UC if they don’t satisfy the s5 financial conditions?  But permission to appeal was granted so we’ll see in due course.

Effectively an argument for six months’ worth of extended payments then, rather than the four weeks someone coming off IS/ESA/JSA would get? ;) OK, it may not be framed in that way, but unless I’m missing something, couldn’t that be the result?

HB Anorak - 31 October 2023 03:53 PM

Now I would have thought the purpose of the words in brackets is to cover cases where payment of UC is suspended, or there is a delay in making the award and it is subsequently paid in arrears.  Surely no-one is “entitled” to UC if they don’t satisfy the s5 financial conditions?  But permission to appeal was granted so we’ll see in due course.

I would agree - entitlement to UC is decided by Part 2 of the UC Regs and Chapter 2 of the WRA 2012. Section 3 is pretty clear:-
3 Entitlement
(1) A single claimant is entitled to universal credit if the claimant meets—
(a) the basic conditions, and
(b) the financial conditions for a single claimant.
(2) Joint claimants are jointly entitled to universal credit if—
(a) each of them meets the basic conditions, and
(b) they meet the financial conditions for joint claimants.

The fact that UC claims are routinely held open for six months is, I think, more for administrative convenience than anything else. It seems like a long time ago, but I think I remember they used to keep claims open on live service, and then on full service they started closing them immediately there was no entitlement, and then eventually they started keeping them open on full service. But I don’t remember any underlying change in the Regs. Can it be right that the fact a claim is left open in case there’s future entitlement overrides the conditions in Chapter 2? In some cases I wish it could be true (like for the TA tenant I spoke to yesterday who has income that is sometimes just high enough to mean they have no UC entitlement - which means they get no HB, but if the housing costs were included in UC they would get about £400 per month).

Timothy Seaside - 01 November 2023 10:22 AM

The fact that UC claims are routinely held open for six months is, I think, more for administrative convenience than anything else. It seems like a long time ago, but I think I remember they used to keep claims open on live service, and then on full service they started closing them immediately there was no entitlement, and then eventually they started keeping them open on full service. But I don’t remember any underlying change in the Regs.

Isn’t it a function of reg 32A C&P?

32A.—(1) This regulation applies where—
(a)a claim is made for universal credit, but no award is made because the condition in section 5(1)(b) or 5(2)(b) of the 2012 Act (condition that the claimant’s income, or joint claimants’ combined income is such that the amount payable would not be less than the prescribed minimum) is not met; or
(b)entitlement to an award of universal credit ceases because that condition is not met.

(2) The Secretary of State may, subject to any conditions the Secretary of State considers appropriate, treat the claimant (or joint claimants) as making a claim on the first day of each subsequent month, up to a maximum of 5, that would have been an assessment period if an award had been made or, as the case may be, if the award had continued.

I would say that it’s pretty obvious that what is happening per that regulation is that someone is being refused UC and then being treated as reclaiming it (without the need for an actual claim), only to be refused it again up to a total of six times. I don’t see how its tenable to argue that someone who is in the middle of a string of refusals for UC can be said to be entitled to it.

Not to dunk on somebody’s UT case. Perhaps they have a better argument.

Thanks Elliott. I must remember not to rely on my memory. I suppose that explains why they do it routinely now - although they were already doing it on live service before, and it’s only a power, so they don’t have to do it.

I think your analysis must be correct; the fact that 32A(1)(b) is about when “entitlement to an award of UC ceases” confirms there is no entitlement, and then (2) is clear that it is a potential new claim each month - which would be hard to explain if there was already entitlement.