Size restriction but overnight carer

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  • #287015
    nick dearnley
    Participant

    I’m dealing with a case where I have been asked to ‘refund the bedroom tax’ for the last 6 years. It started as a fairly simple not likely as even the most recent decision was made 10 months before the request, but….

    Clmt moved into a 2 bed property in Jan 2017, recommended by an OT and agreed by our Housing allocations team. She has MS, which has become worse over time, and uses a wheelchair in the house. The second bedroom is used as a ‘dressing room’, with wardrobes etc, to free up space in the first bedroom so it can be navigated in the wheelchair. There is no suggestion that the couple do not share the bedroom, in fact she is adamant that will never happen.

    At that point reg B13 didn’t include the ‘couple who cannot share’ or ‘overnight carer’ provisions for an extra bedroom. She applied for and was given a DHP from the move in date to 31.3.18. She reapplied for a new DHP but was refused, and was advised to tell us if she and her husband became unable to share a bedroom. No further contact, no changes reported, and the award rolled on. She remains adamant that they will continue to share; good for her.

    The original 2017 DHP application included that her daughter stayed overnight to give her husband some respite. At that time the only route was DHP, hence the award. But B13 came into force on 1 April 2017, so…should we have revisited the case to remove the DHP and allow the extra bedroom on;’overnight carer’ grounds from 1.4.17? It strikes me that if she had asked us to look at the eligible rent at that point we would have removed the restriction, but as it is she has only just asked, and that means I’m stuck with removing it from now, if I can’t find a route to do it from earlier.

    #287016
    Peter Barker
    Keymaster

    I’d say that there are sufficient functional links between HB and DHPs that it could be said the failure to rely on info provided in support of a DHP application when making HB decisions is an official error. In fact I would guess that the documents are literally on the same EDM file.

    That provides you with “any time” grounds to revise any decision made since April 2017. As we were in the 1% annual rent reduction years in April 2017, I would assume there was a decision at that time reducing the eligible rent for HB, so you can revise it and any others made in the meantime.

    In fact, come to think of it, the definition of “person who requires overnight care” was there from 2011 where the claimant or partner required overnight care, what happened in 2017 was that it was widened to include persons other than the claimant and partner.

    Is it possible that you used a DHP instead of allowing a room for an overnight carer because the spare bedroom that’s causing the problems here is not where the daughter sleeps? If so, it cannot be relied on to satisfy the overnight care rule. There was an LHA case in Bolton where the living room became a “bedroom” during the night when the carer unfolded a camp bed, but you don’t to use that argument in a bedroom tax case because you’d be increasing the number of bedrooms.

    • This reply was modified 2 months, 1 week ago by Peter Barker.
    • This reply was modified 2 months, 1 week ago by Peter Barker.
    #287018
    nick dearnley
    Participant

    That’s what i was thinking Peter; it was around the time of the high profile size criteria appeals, and we even told her that the law might change…

    It’s an error in law so anytime revision; there will be an overpaid DHP to offset/recover, but that’s another problem.

    Thanks

    #287020
    Peter Barker
    Keymaster

    See second edit – might be another problem

    #287022
    nick dearnley
    Participant

    The daughter does sleep in the spare room when she stays, but there is no bed in there, only a ‘pop-up’ bed, according the the clmt. I think I’m OK going with the classic SSSC argument of ‘a bedroom is a bedroom, no matter how it’s used’ to say that here is a bedroom used by an overnight carer on a regular basis.

    #287026
    nick dearnley
    Participant

    In fact, come to think of it, the definition of “person who requires overnight care” was there from 2011 where the claimant or partner required overnight care, what happened in 2017 was that it was widened to include persons other than the claimant and partner.

    Is it possible that you used a DHP instead of allowing a room for an overnight carer because the spare bedroom that’s causing the problems here is not where the daughter sleeps? If so, it cannot be relied on to satisfy the overnight care rule. There was an LHA case in Bolton where the living room became a “bedroom” during the night when the carer unfolded a camp bed, but you don’t to use that argument in a bedroom tax case because you’d be increasing the number of bedrooms.

    I’ve just found the 2010 Regs that introduced the SSSC from 1.4.13 (HB(Amendment) Regs 2012); the ‘person who requires overnight care’ part was from 1.4.11 (SI2010/2835); you’re quire right about the wider application from 2017. It’s been so long that I’d forgotten the history.

    I think it’s more likely that we used a DHP because that’s what she asked for, but also because the DHP assessment seems to have concentrated on a likely future requirement for 2 beds for being unable to share. The daughter staying is not mentioned in the assessment reasons at all, although it is on the application, so I think it was missed.

    I think that factually she has always had a need for a regular albeit somewhat occasional overnight carer and a bedroom for that, so she clearly meets the criteria, and instead of using a DHP we should have simply not applied the SSSC restriction.

    Does that logic stack up?

    #287028
    Peter Barker
    Keymaster

    Yes, that works I think. Any HB decision made since she first said anything about overnight care in the DHP context can be revised on the official error ground. The “dressing room” is a bedroom, the daughter sleeps in it, so o/n care conditions are satisfied.

    #287041
    nick dearnley
    Participant

    Thanks Peter. Revising it is worth over £5700 to her as she has been paying the shortfall. There will be a DHP overpayment of around £630 so we’ll have to figure out the recovery of that if we decide we need it back (that bit’s not my decision though).

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