As set out in the previous post, the DWP has confirmed that 4(1)(a) of Schedule 3 of the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 has the effect that any HB claimant who has been claiming continuously since before 1 January 1996, for the same property, should have their HB rate calculated without the 'Spare room subsidy' provisions. In effect these claimants are exempt from the bedroom tax under the current regulations and have been since their introduction in April 2013..
The DWP circular is here.
The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations are here: http://www.dwp.gov.uk/docs/a8-3301.pdf
This is to put a little more detail on the 'exemption', who is affected and what to do.
Any housing benefit claimant who has claimed continuously since on or before 1 January 1996.
There can have been up to a four week break in entitlement.
There can be an up to 52 week break in entitlement if the Claimant became a Welfare to Work recipient, and was so at the time entitlement stopped.
It has to have been the same property throughout, save for exceptions specified at 4(3)(a)(ii)
the dwelling so occupied was not the same by reason only that the change was caused by a fire, flood, explosion or natural catastrophe rendering the dwelling occupied as the home on the first date uninhabitable; and [the HB claim was continuous as above]
Sections 4(5) to 4(7) provide that:
(5) A person shall be deemed to fulfil the requirements of sub-paragraphs (1)(a) [the one that leads to exemption] and
(a) he occupies the dwelling which he occupied on the relevant date;
(b) this paragraph applied to the previous beneficiary on the relevant date; and
(c) the requirements of sub-paragraphs (6) and (7) are satisfied in his case.
(6) The requirements of this sub-paragraph are that the person was, on the relevant
(a) the partner of the previous beneficiary; or
(b) in a case where the previous beneficiary died on the relevant date, was a person to whom sub-paragraph (10)(b), (c) or (d) of regulation 13 (restrictions on unreasonable payments), as specified in paragraph 5, applied and for the purposes of this sub-paragraph “claimant” in that paragraph of that regulation shall be taken to be a reference to the previous beneficiary.
(7) The requirements of this sub-paragraph are that a claim for housing benefit is made within 4 weeks of the relevant date and where such a claim is made it shall be treated as having been made on the relevant date.
(10) of reg 13 states
(10) This paragraph applies to the following persons–
(a) the claimant;
(b) any member of his family;
(c) if the claimant is a member of a polygamous marriage, any partners of his and any child or young person for whom he or a partner is responsible and who is a member of the same household;
(d) subject to paragraph (11), any relative of the claimant or his partner who occupies the same dwelling as the claimant, whether or not they reside with him.
'Relevant date is defined:
"the relevant date" means the date–
(a) of the death of a previous beneficiary;
(b) on which a previous beneficiary who was the claimant's partner left the dwelling so that he and the claimant ceased to be living together as husband and wife; or
(c) on which a previous beneficiary, other than a beneficiary to whom regulation 7(13) of the Housing Benefit Regulations or, as the case may be, regulation 7(13) of the Housing Benefit (State Pension Credit) Regulations applied, was imprisoned, but only where on that date he was the partner of the claimant,
So, the following will 'inherit' the exemption.
a) the partner, or family member, or relative occupying the same dwelling of someone who claimed HB on or before 01/01/1996, and claimed continuously to their death; and
i) who has claimed continuously themselves since the original claimant's death [or within 4 weeks]; and
ii) who lived at the property on the date of death of the previous claimant, and has lived there continuously since the death of the previous claimant;
b) The partner of a claimant who has left and ceased to reside as husband and wife, where the claim was continuous before the date the claimant left and has been continuous by the partner subsequently [or at least where partner claimed within 4 weeks of the previous claimant leaving].
DHP in the interim?
It appears that if the claimant has received DHP payments between April 2013 and now, these will not have to be repaid, or off set against the backdate of HB. However, this is subject to debate at present.
What happens next
Councils have been asked by the DWP to consider reviewing their records to identify potentially affected claimants. Any claimant who is affected should supposedly have HB re-calculated and back paid to April 2013.
The odds on this happening quickly, or even at all are not good. Councils will not have the resources or in many cases the records to identify claimants with a pre 02/01/1996 claim.
Tenants who consider that they would fall under this provision should at the very least immediately alert the benefit authority and ask for a re-assessment.
What happens where there aren't records for the whole period is a good question. It is possible that a refusal to re-assess may mean the original decision may have to be appealed.
If any affected parties are in on-going rent arrears possession proceedings, this is of immediate use.
How long will this last?
Unknown. The DWP has stated its intention to amend the Regulations to prevent this provision from being effective. The timescale for this is not clear. However, any amends should not be retrospective in effect.
My very grateful thanks to Peter Barker (HB Anorak) for talking me through the arcana of the regulations.