Bedroom Tax: the effect of the pre 1996 claim ‘exemption’.

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.

Who qualifies?

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.

Same property?

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]

Successors?

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
(3), where–
(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
date–
(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.

         

zv7qrnb
Posted in assured-tenancy, Benefits, FLW article, Housing law - All, secure-tenancy and tagged .

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

29 Comments

  1. Sorry to be pedantic, but it does make a difference:-

    ” It is possible that a refusal to re-assess may have to be appealed.”

    If the council do not re-assess, then a late appeal should be made against the original decision.

    An appeal against the refusal to re-assess would be less advantageous as it would only take effect from the date of the application for re-assessment.

    • Happy to take that correction, though the effect would be the same. If the re-assessment took place after appeal. the effect would be the full backdate to April 2013.

  2. Pingback: Landlord Law Blog Roundup from 6 January

  3. @ tom surely it’ll be an “anytime” appeal of an offical error and get it backdated. Till start.

      • There’s some confusion on challenges. I hope you don’t mind some clarification. Challenges can be either:

        1. A late appeal of the original bedroom tax decision. All such decisions will still be within the maximum allowable appeal time limit.

        2. A revision of the original decision on the grounds it was made as a result of an official error.

        Seeking a reassessment (supersession) is not the right approach and, in any case, where a supersession is sought, but revision is the most appropriate route, the authority must do the revision.

        A refusal to revise is unlikely but potentially problematic, and delays could cause the late appeal avenue to be lost (the max time limit will be expiring for most during March and April 2014). Therefore, a late appeal is the best option – with a suggestion in the appeal that the authority revise in accordance with the HB circular mentioned elsewhere.

  4. I’ve lived in my current home (3 bedroom semi) for more than 30 years. I lived with my mother, who was the tenant. She died around 8 years ago and I succeeded her and became the tenant. I’m paying £102 a month of Bedroom Tax. What position does the above put me in, regarding this new announcement?

  5. My mother was on housing benefit and the claim for that was switched to a claim for me to be on Housing Benefit. I seriously doubt that, back then, there was a gap of more than 4 weeks, if that’s important, at all.

    A lot of what is written above is harder to understand than it might seem to others.

    • Ian, we can’t advise on people’s individual situations via the blog. And anyway I couldn’t tell you anything for sure without going through the history. But if your mother was continuously getting HB from before 2 January 1996 and you have been continuously getting HB since your mother died, it sounds likely that you would be exempt. You should write to your housing benefit office, setting out the facts and tell them that you fall under DWP Circular U1/2014.

  6. May I clarify the issues around appeals? I think there are two strands to it.

    First the Council may, on its own initiative or on an application by the person affected, revise a decision it has made wrongly at any time if the fault lay with the Council or the DWP. See Reg 4(2)(a) of the HB&CTB Decisions and Appeals Regs 2001 and the definition of “official error” in Reg 1. Although this 1996 business is pretty obscure, it certainly isn’t anyone else’s fault so this is technically an LA error, albeit an understandable one. So there is an “any time” ground for revision in these cases.

    There is only a problem if the Council is not satisfied from the evidence that the claimant does come within the exemption: this may be particularly likely where someone is hoping to take advantage of the provisions for protection to be passed from person to person which Giles describes above. If the Council refuses to revise the decision, the situation is as follows:

    – there is no right of appeal against the Council’s refusal to carry out a revision as such – see “relevant decision” in para 1 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000; a “relevant decision” is the matter attracting a right of appeal and refusal to revise such a decision is not in itself a further decision.
    – but if the Council has entertained the claimant’s application for revision and considered it in substance, there is a further right to appeal against the original decision within a month of the rejection of the application for revision (and it can be extended to 13 months) so it amounts to the same thing
    – if the Council has declined even to entertain the claimant’s application for revision because it was not made within a month of the original decision, there is still a right of appeal against the original decision made in spring 2013 for up to 13 months after it was made. So not long left now.

    See Rule 23 of and Schedule 1 to the Tribunal Procedure (First-tier Tribunal)(Social Entitlement Chamber) Rules 2008 for time limits. If someone appeals to a Tribunal the Council will look at the possibility of revision in any case, so probably the most straightforward way to ensure that all the bases are covered is for tenants who think they are covered to put an appeal in now – and certainly before the decision is 13 months old.

    Finally, you may wonder why on earth a council would refuse to entertain an application for revision in these circumstances. The answer lies in Reg 5(5)(a) of the Decisions and Appeals Regs: ignorance of the law is no excuse. Bit of a cheek, eh? Pot, kettle etc. A Tribunal has no such restrictions – it can accept a late appeal at its absolute discretion for any reason and will do so by default if the other party has no objection. So appeal, appeal, appeal.

  7. Hi with regard to the criteria as to the same property. What if the claimant has continuously claimed since 1996 but was forced to move to another property due to the council selling off the land under a CPO and allocating the claimant another property.

    • Tricky. The Regs do make provision for tenant being moved to another property but say:

      “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” [my emphasis]

      So the regs are not here providing examples of forced relocation, but setting out an exclusive list of the kind of relocation that would count. My provisional view is that this wouldn’t include a decant to enable sale of land.

      • Tricky but I suggest more hopeful than you think.

        FtT judges can and do look for what was the intention behind the regulations and here we see ONLY a force majeure event as you rightly say.

        However what is tenant forced to flee DV? Will a FtT judge say surely the intention was not to penalise women fleeing DV and so lose their protection. FtT judges do widen the application of a regulation to include other similar issues.

        The rationale behind the force majeure being out of tenant control and or the previous property becoming uninhabitable will I am sure be argued by those forced to move by CPO and by regeneration and renewal schemes such as HMR and merely by a property fallign into such disrepair that a move is necessitated.

        • I wondered about that. My concern is that the Regulations are very precisely worded. They don’t give examples of force majeure events. They say ‘only’ these. The FTT can look for intent of regs but can’t avoid their express wording. Here the Regs are expressly limited and precise.

  8. Today I had a comment on a pre 1996 blog I had put out to say Liverpool City Council are saying the succession issue is ONLY limited to a partner!

    The daughter or son or anyone else does not count they said when I rang them….we have had training on this!!

    Of course they are wrong but the sheer ignorance of regulations is not I suspect limited to Liverpool and so is this just a case of being ignorant or is it a councils way of not going to the cost of investigating?

    That last and perhaps cynical point may well hold more validity in Liverpool’s case as they have sub-contracted the admin of HB to Liverpool Direct Limited and of course LDL will not have this extra work contracted for!!

  9. Pingback: Is Liverpool denying £2m to bedroom tax tenants… unlawfully? | SPeye Joe (Welfarewrites)

  10. Hi,
    My mum has been on HB since 1983 in same property until 1998 then moved two streets away to same size house but with ramped access for medical reasons. LDC are saying she cannot claim but surely this comes under the valid reason for moving exception. What’s your opinion please? Many thanks, kate

    • Hi, I’m afraid that the regulations are very specific on the reasons for moving: “fire, flood, explosion or natural catastrophe”. I don’t think they can be stretched into a general ‘moved for a good reason’ exception.

  11. Hi, I am somewhat confused in my current situation, in regards to “been Exempt, or not”? I have been a tenant since 1995, claiming HB. I worked for 6 months in 2006-07, but had to stop due to becoming a full time carer for my Son. Due to No fault of my own at that time, I ended up with over £2000 arrears which has been deducted from my benefit from 2007-present, along with my water rates weekly…In April 2013 when the extra BTax came in, which I have paid + continue to do, I was informed I am in arrears, although always made payments, the arrears been those from the 2007 bill? (nothing to do with Bedroom tax + always + currently paid direct from DWP} On top of this, my son is severely disabled, in receipt of the high rate care component of DLA, yet been turned down twice when putting in for exempt/discretionary, recently my LA rang me on 3 occasions within 5 weeks asking me to fill out the form once again and send off A.S.A.P as all previous claims who were turned down are now entitled to it , confirming to me she felt I would too? I posted it almost 3months ago, heard nothing, been to LA twice to enquire and they say It is with them but think it is still in process? They have no idea of my outcome or even an idea to how long it will be before I will hear anything?…adding I should still carry on with my payment’s as usual? (the reason for the urgency + my hardship in the first place) It seems my reply is taking longer than most, where previously I heard within two weeks?

    • I’m sorry, we can’t advise on individual’s specific situations. I’d suggest trying to get help from a CAB or local law centre or advice centre.

  12. I thought that that the fire and flood criteria were widened to allow people who were forced to move (domestic violence, anti-social behaviour) to claim exemption. Can you please clarify?

Add a comment. (Our comments policy)

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>