LHA bereavement protection

I am advising a family who are not currently entitled to LHA in their 3 bed private let (mum and 2 adult children) as mum earns too much.  Mum is terminally ill.  When she dies the 2 remaining children would normally only be entitled to the 2-bed LHA rate, and this would lead to a shortfall that the 2 children (both on JSA) can not afford.  They will have a very good case for DHP.  However, does anyone know more about the rules for protection following bereavement for a new claim?  If they make a new claim for LHA when their mum dies, will they be able to get the 3-bed LHA rate for 52 weeks?  Any other ideas for this family? Thanks

The threshold requirement for protection on death is that they do not have a separate right of occupation from their mother’s, which means that they must currently either be non-dependant household members under her tenancy or joint tenants along with her - if they have individual tenancies in an HMO-style set-up they are not covered (but I would expect this is the least likely option).

Assuming they get over that hurdle, the news is as good as it could be in those sad circumstances: for twelve months they are entitled to unrestricted HB on the current rent that applies on the date of the mother’s death calculated as if they were Council/HA tenants (full rent minus any ineligible service charges if there are any).

At the end of twelve months, the options depend on whether either or both of them is/are under 35 and whether they are joint tenants or one tenant and one non-dep.

The best option is that they become joint tenants and neither is under 35.  As siblings who have lived together for some time, there is a good chance they form a common household.  A quirk in the definition of “occupier” in HB Reg 13D would allow each to be counted as an occupier on the other’s HB claim which means they will be OK if their actual rent is no more than two times the two-bed LHA.  Just to be clear, I am saying here that sibling 1 gets the 2-bed rate and sibling two also gets the two bed rate ... that’s the 2-bed rate EACH.  See CH/107/2010 where DWP surprisingly make this concession on their own initiative.

However, if either of them is under 35, the shared rate overrides the above for that person under a joint tenancy.  The better buy options become quite complicated at this stage: there are several different permutations depending whether both are under 35, only one is under 35, they are joint tenants or only one is a tenant and the other is a non-dep.  To help advise properly, can you say at this early stage whether it is anticipated that they will have a joint tenancy and can you say whether there is a possibility that either or both will be <35 a year after their mother’s death?

Thanks very much for this!  I was thinking of advising mum to transfer the tenancy into the childrens’ names before she dies (under Scottish law, the tenancy can only pass to a spouse or civil partner on death, and I want to ensure the children have security of tenure).  I will now advise her to change the tenancy to a joint tenancy in all 3 names (mum and her 2 children)?  Both of her children are under 20 (19 and 18).

If they are both under 20 now it seems likely that they will have a long way to go to 35 when their mother dies, so these are the options when the protection on death falls away after 12 months:

- joint tenants, both restricted to shared rate of LHA
- one tenant, one non-dep, only one HB claim based on two-bed rate of LHA and possibly a non-dep deduction (but not if the non-dep is <25 and on means-tested DWP benefit)

So it’s a question of whether 2 x the shared rate is higher than one x the 2 bed rate.  That varies from place to place, if you are in the Lothian BRMA the two-bed rate is currently higher by about £10 a week, dropping to around £5 a week from April.  That is as good as it gets unfortunately, so what they may have to think about doing is getting a lodger or friend/relative to share before the 12 months’ protection runs out.  The most advantageous permutation then would be a joint tenancy with a non-dependant who “belongs” equally to both tenants - that way they avoid the shared rate and get the 2-bed rate each.

There is always a risk that the Council will see planning of this kind as contrivance to take advantage of the HB scheme.  That would be incredibly harsh in my opinion - there is nothing contrived about the rent itself, all they are trying to do is find a way of meeting it.  Contrivance is normally invoked when there is something inherently dodgy about the very existence of any tenancy at all.  But the Council might not see it that way, hopefully they will be prepared to give you some kind of indication of how they would view it.

Thanks very much for all of this - one last question you may be able to assist with:  If one of the children moves away to university (probably after the mum dies as she only has a few weeks left) will the 3-bed rate protection continue for 12 months, even though there will only be one person living there?  Thanks

Again its not completely straightforward.  The superficial answer is yes it will continue, but note the following:

1. When 12 months’ protection on death is running, very few things can bring it to an early end.  The only ways the 12 months’ protection can end are:
- the claimant becomes entitled to a higher eligible rent under the normal rules (unlilkely if the protected rate covers the full rent already)
- the claimant moves to a new address
- the landlord’s status changes so that the HB claim comes under a different set of rules completely (most unlikely)
- there is another death, which resets the clock (seems unlikely in your case)
- the claimant ceases to be entitled to HB at all (very likely from what you have just said)

2. If there is one claimant and one non-dep, the departure of the non-dep (eg to college accommodation) will not affect the 12 months’ protection so the claimant’s full HB will continue to run until the 12 months are up: from the perspective of that one claimant, none of the events listed in 1. above has happened

3. But if there are two joint tenants both claiming HB and one of them moves to study elsewhere, the remaining tenant’s HB will be stuck at his/her own personal 12 months protected level unless his/her eligible rent calculated in the regular way would be higher than that. In your case it won’t because s/he would be restricted to the shared rate under the regular LHA calculation so 12 months’ protection on half the full rent will continue to be awarded

4. If the student sibling is a joint tenant rather than a non-dep, is s/he the kind of student who is entitled to HB?  If so, the Council will have to consider whether s/he still lives in the family home or in college accommodation elsewhere: the HB award will be for the claimant’s normal home and it could be either, depends on the particular facts of the case including long term intentions.  One possible outcome is that the Council takes the view s/he has not moved and is merely temporarily absent in which case both joint tenants’ 12 months’ protected HB will continue.

5. If the student sibling is a joint tenant but excluded from HB by virtue of student status, his/her protected HB will end at that point because s/he isn’t entitled to HB at all.

6. If the student sibling is a non-dep, the Council could take the view that s/he has not moved out and his/her underlying normal home remains where it is now.  If so, s/he would count as an occupier and at the end of the tenant’s 12 months’ protection HB would be based on the two-bed rate.  But if the Council takes the view that the student has moved out and now has a normal home elsewhere, at the end of the 12 months’ protection the remaining tenant would drop down to the shared rate.

In summary: On the facts of your case if one of the siblings is planning to move out for any reason within the 12 month protection period it would be better in the short term if that person is a non-dep at the point whe s/he moves out because the claimant’s protected full rent will not be affected for the remainder of the twelve months.  In the longer term, at the end of 12 months one young person under 35 could be left high and dry in a 3-bed house and is going to need a change in either financial fortune or domestic arrangements to be able to stay there: get a job and/or get a couple of lodgers.  Even if the Council takes the view that the student still lives there, they are going to be restricted at best to the two bed rate of LHA so they still need work and/or one lodger.

Sorry these replies are so long, but your case raises so many different possibilities.  Also dont forget the danger that planning the tenancy to secure the best HB outcome might be seen by the Council as contrivance although as I said earlier that would be an extremely harsh attitude to take and also wrong in my opinion - this is not what “taking advantage” means in Reg 9.

Again, thanks very much for all of this.  I’m going to sit down later today and get a clear plan together.  This has been so helpful.