Non-dependant in armed forces

Please can someone give me clarification.  The legislation states that a bedroom can be allowed for a non-dependant who is in the armed forces whilst they are away on deployment, if they normally reside with parents.  What is the definition of ‘deployment’ in these circumstances.  Are the local authority correct in interpreting this as not on base?  I have a tenant whose daughter is in the Navy based in Plymouth but comes home on leave.  As she only comes home about 3 times a year for about 4 weeks at a time does this mean they are not entitled to a bedroom for her?  Does anyone else have any experiences they can share on this?

This is the guidance to point them at: http://www.dwp.gov.uk/docs/a10-2013.pdf

32. The adult son or daughter must have been a non-dependant before deployment
on operations (although a deduction may not have been applied, for example
where the claimant is blind) and there must be an intention to return to live with
their parents.

33. On ‘operations’ does not necessarily mean away from the United Kingdom, just
away from the home they normally occupy. It will also cover pre-deployment
training and post operation leave (which is described as “normalisation”). For
example, Royal Air Force personnel with immediate response duties who are
based away from home for four months or where members of the armed forces
were deployed to assist with the Olympics.

34. The LA should be satisfied that the adult son or daughter has been deployed on
operations. If the adult son or daughter is already away on deployment when a
new claim for HB is made, the claimant will be able to obtain a letter from the son
or daughter’s chain of command in the armed forces, confirming the deployment.

Thank you.  It seems there will not be many cases where a bedroom will be allowed for parents with children in the armed forces as most of them will be deemed to have their normal home as their military base

Hm. I would read it differently, and say that as long as there is an intention to return, then the parents’ home should be deemed as the one normally occupied. I’ve not dealt with the issue in practice though.

I have a couple of cases and my local council housing benefit department are trying to say a bedroom cannot be allowed.  Unfortunately in one particular case they never put their daughter on their original claim because it was not given a thought.  She is in the Navy and they live in social housing. Not a problem until this April.  Housing benefit are stating that if they allow the bedroom they will apply non-dep ddeduction back to beginning of claim.  Although this would only be for the weeks she was at home I would need to check how long been receiving benefit and what the implications of overpayment are.  Housing benefit are implying her normal place of residence is her barracks.  I think the legislation is still very unclear and open to different interpretation.  I would really like to know what experiences other people have had with these cases.

I think on the whole it is probably correct that the extra bedroom and the non-dep deduction go hand-in-hand, with the exception of cases where the new “operations” rule applies.

Any household member, whether in the armed forces or not, will be regarded as an occupier for size criteria purposes as long as they occupy the dwelling as their home when Reg 7 is applied to them.  It has been accepted for many years now that Reg 7 is used in any situation where the Regulations use a word from the “occupy” stem.  This was originally established in a Local Reference Rent case (Swale and Marchant) and has regularly been endorsed by the Upper Tribunal.  This means that a person will remain an occupier as long as their absence does not exceed 13 weeks (or 52 weeks in circumstances where Reg 7 allows).

To be a non-dep, the person must “normally reside” with the claimant.  This is a legally separate test from “occupy” but I think most authorities would regard them as having more or less the same meaning and indeed it is probably very difficult to manipulate a computer system to take the person into account for one purpose but not another.  In practice then, once a non-dep has been absent for 13/52 weeks, or looks as if they will be, the bedroom is taken away but the non-dep charge goes as well; whereas if the person still counts as an occupier the Council will probably slap on a non-dep charge as well.

For someone in the armed forces earning a wage, the non-dep deduction will normally be more than any bedroom tax and will often be more than the difference between two LHA rates as well.  It is better for the claimant if the non-dep is just left out of it altogether.  Obviously the better-off implications are different if the claimant is exempt from non-dep deductions by virtue of DLA(c) or blindness - then it is better to have the bedroom with no strings.

So in the case we are discussing, Medway Council (I presume) is saying the claimant cannot have it both ways: either the non-dep lives at home and gets a bedroom plus a non-dep charge, or she doesn’t live at home in which case she affects nothing.  If the claimant is now saying the non-dep has always lived there, the Council are saying in that case there should always have been a non-dep deduction.  Undisclosed non-deps are one of the major causes of overpayments in HB.  Your client may therefore want to provide further details of her daughter’s comings and goings in the past so that the Council perhaps reconsiders the retrospective non-dep deduction.

But if the retrospective non-dep deduction is removed, that would logically lead the Council to conclude that the same treatment applies going forward which means she is not a non-dep and so the concession for people on “operations” would not apply - she simply does not live at home anymore.  It’s going to be tough to persuade the Council that she has not been a non-dep until now, but that has suddenly changed ... and that is before you even get as far as considering whether what she is doing amounts to “operations”.

This concession by DWP is not all it appears to be at first sight.  How many people are actually going to have circumstances that satisfy the preconditions for the concession to apply?  I imagine your claimant’s case is very typical and I think a natural conclusion is that she does not have a non-dependant daughter living with her.  That means the bedroom tax applies, but at least there is no overpayment for historic non-dep deductions.