Protection from Under Occupancy Charge following a death.

A Son succeeded to his Mothers tenancy in September last year. He lived with her in a 3 bed room property and had she still be here the tenancy would have remained in her name and the under occupation charge would not have been applied as she was over pension credit age. I have contacted the Housing Benefit department to ask if he would be offered the protection for 12 months and they advised the following: The regs state that if the claimant was not on hb at the date of the death, their eligible rent is worked out as a standard case.
As his claim is a new one, starting from tenancy succession, it is not protected.
But I have since read that anyone who is a “linked” person should be afforded the protection. Can anyone help with the legislation that covers this?

The Council is wrong.  12 months’ protection applies to a former non-dep succeeding to a tenancy, and it applies whether or not the deceased tenant was on HB.  The worst that can happen until September 2013 is that the claimant’s HB is based on the September 2012 rent.  Unfortunately he won’t be able to get his April 2013 rent increase covered under the 12 month rule (if there is an increase).  Refer them to Reg 12BA(3)(b) if they are not convinced: the only way that reg could possibly apply is if neither the claimant nor the non-dep was on HB at the date of death.

Have a look at the HB 2006 regs, esp 12, 12B and 12BA (as inserted by the HB (Amendment) Regs 2012, the ones that introduce the social sector size criteria).

It gets a bit confusing as regulations 12, 12B and 12BA are 3 separate regulations.

12B(1) starts you off on what is eligible rent for HB according to whether the claimant is in the social sector, private secotr (LHA), etc. Here it is social sector so we are referred to 12BA to find out what eligible rent is.

12BA(2) says its the rent with the under-occpancy reduction UNLESS 12BA(3) (protection for death) applies. If claimant was the claimant before the death they are protected under 12BA(3)(a), if not, as in your case where there is no previous eligible rent, 12BA(3)(b) says work eligible rent out using 12B(2).

12B(2) says to calculate what payments of rent under regulation 12(1) can count, and this is basically a calulation of eligible rent without the complication of reducing it for the “bedroom tax” provisions under B13 (introduced with the HB (Amendment) Regs 2012).

Hence rent under 12(1) is used as the eligible rent for 12B(3)(b)