Terms & Conditions

[Derrick]

Do the answers for Q7 and Q11 in the above mentioned circular contradict each other?

or is it just a misreading?

[Anonymous]

I think the answers to question 11 and 12 are not accurate either.

reg 80(3) of the HB regs 2006 reads to me that for weekly liabilities we calculate the eligible rent by reference to the amount of eligible rent payable in repect of a week [i:6f3f570fe8]whether or not [/i:6f3f570fe8]that liability relates to the whole of the benefit week. In other words, regardless of what day they move in we award full HB for the week.

Am I right or am I whistling against the wind ?

[Darren Broughton]

Reg 80(3) was deleted by SI 2502-2005 and a new para 4 was inserted. The DWP guidance is correct – even if they make their new claim in the first benefit week in which a new liability begins, you only pay for the days that the claimant occupies the property

[Anonymous]

The consolidated Regs, as amended from April 06, do not seem to be up on the DWP Blue Volumes site at the moment. Unless you have gone to the trouble of amending SI 2005/2502 in accordance with the Consequential Provisions Regs, and then applied the amended amendments to Regs 79 and 80 (which I haven’t done myself yet), you need three SIs open at the same time to analyse this properly.

So I might be cross-reading wrongly between the three documents here, but I am not convinced that the Regs say what the FAQ circular says in all cases.

In the particular case of a new claim from a new tenant who is not an existing claimant, the way I read the new Reg 80(4) as amended is that the claimant receives a day of HB for each day on which he or she is liable to pay rent in the first week of the tenancy, provided the claim is made or treated as made in that same week and the claimant occupies the home in that same week. I see nothing in Reg 80(4) that limits the number of days’ HB to the number of days on which the home is occupied. So if your tenancy runs from, say, Tuesday, you move in on Friday and you claim HB on Friday you are entitled to HB based on 6 days’ rent running from Tuesday. On that subject I think the Regs are clear and I don’t agree with the FAQ circular.

The change of address/two homes overlap rules are a bit messier. The circular makes sense if you take the view that any overlap, even as little as a single day falling in the same benefit week as the move, needs to be catered for by the overlapping benefit rules. If a claimant has a slight mismatch between their old and new rent cycles that means, say, that they move in on Tuesday but pay rent on their old home up until Thursday, you would have to deal with the two-day overlap under Reg 7(6) and be satisfied that the claimant couldn’t avoid it. If you are not persuaded, then the claim for the old home ends on Monday and starts on Tuesday for the new home with no overlap. If that’s the intention I think it is consistent with the Regs (I think an alternative, slightly more generous interpretation of Regs 79 and 80 as amended is possible, but I won’t bore you all with it now).

So I think the FAQ circular is wrong on the point about brand bew claims, but in all the other moving home scenarios I think it stands up.

[Darren Broughton]

Peter – yes I did go through the arduous task of updating SIs with the Consequential Regs etc – not fun.

I queried the start date issue with the DWP since they had not released any info on a circular (at that point). Their reply is as follows:

“Before 1/3 April 2006, the combined effect of reg 76(2) and 80(2)(a) and (3)(a) was that where a claim was made or treated as made in the same benefit week as the weekly liability began, HB could be paid from the Monday of the benefit week in which the claim was made or treated as made. This was the case even if the person did not move into the property on a Monday.

The provision in reg 80(3)(a) allowing HB to be awarded, even before the claimant was living in the new property, had always been at odds with the primary provisions of section 130 of the Contributions and Benefits Act. Section 130 provides (amongst other things) that a person is entitled to Housing Benefit if he is liable to make payments in respect of a dwelling in GB that he occupies as his home. Thus the basic requirement is that HB cannot be awarded unless the person is living in the home and has a rent liability.

When developing the amendments to the change of circumstances provisions in reg 79 and 80, we consulted local authority practitioners. They asked that we introduce three basic rules. These were that

generally a change of circumstances is effective from the benefit week after the change happens

if the change is to the rent, either on an existing property or because the claimant has moved within the LA’s area, the effective date should be the date the rent change happens and

a change that ends entitlement should be effective from the benefit week following the date of change.

Having agreed those basic principles we also amended the provisions of reg 80(3)(a) (the new 80(4)(a) refers) so that they are in line with the change of rent provisions and in line with Section 130. This means that where the claim is made or treated as made in the first benefit week for which liability starts, the eligible rent for that first week is calculated using the number of days the claimant is liable to pay rent and is occupying the home.”

[Anonymous]

Where can I see the amended reg 80(4) ?

[Darren Broughton]

You need to apply the Consequential Regs to SI 2502, and then apply SI 2502 to the new consolidated regs. It then ends up as follows:-

Calculation of weekly amounts
80. —(1) A person’s entitlement to housing benefit in any benefit week shall be calculated in accordance with the following provisions of this regulation.

(2) The weekly amount of a claimant’s eligible rent shall be—

(a) subject to paragraph (4), where rent is payable at intervals of one week or a multiple thereof, the amount of eligible rent payable weekly or, where it is payable at intervals of a multiple of a week, the amount determined by dividing the amount of eligible rent payable by the number equal to the number of weeks in respect of which it is payable; or

(b) subject to paragraph (4), where the rent is payable at intervals of a calendar month or multiples thereof, the amount determined by dividing the amount payable by the number equal to the number of calendar months in respect of which it is payable, multiplying by 12 and dividing by 52;

(c) subject to paragraph (4), where the rent is payable at intervals of a day or multiples thereof, the amount determined by dividing the amount payable by the number equal to the number of days in respect of which it is payable and multiplying by 7.

(4) In a case—

(a) to which regulation 76(2) (date on which entitlement is to commence) applies, his eligible rent for the benefit week in which he becomes liable to make payments in respect of a dwelling which he occupies as his home shall be calculated by multiplying his daily rent by the number equal to the number of days in that benefit week for which he is liable to make such payments;

(b) where a change of circumstances takes effect in a benefit week under regulation 79(2A), (but is not a change described in sub-paragraph (c)(ii) of this regulation), (2B), (8) or (9) other than on the Monday of a benefit week then the claimant’s eligible rent for that benefit week shall be calculated by multiplying his daily rent by the appropriate number of days in that benefit week;

(c) where—

(i) the amount of eligible rent which the claimant is liable to pay in respect of a dwelling is altered and that change of circumstances takes effect under regulation 79(2), or

(ii) the claimant—

(aa) moves to a new dwelling occupied as the home,

(bb) he is not entitled to be treated, immediately after that move, as occupying two dwellings as his home or as occupying his former dwelling as his home, and

(cc) that change of circumstances takes effect under regulation 79(2A),

other than on the Monday of a benefit week, then the claimant’s eligible rent for that benefit week shall be calculated by multiplying his old and new daily rent by the number equal to the number of days in that week which relate respectively to the old and new amounts which he is liable to pay.

(5) In the case of a claimant whose weekly eligible rent falls to be calculated in accordance with paragraph (4)(a) or (b) by reference to the daily rent in his case, his weekly applicable amount, weekly income, the weekly amount of any non-dependant deductions and the minimum amount payable in his case shall be calculated in the same manner as his weekly eligible rent by reference to the amounts determined in his case in accordance with Parts 5 to 8 (applicable amounts, income and capital, students and amount of benefit).

(6) Where a change in the amount of a claimant’s applicable amount, income or non-dependant deductions falls to be taken into account in the same benefit week as a change in his eligible rent to which paragraph (4)(c) applies, it shall be taken into account in that week on a daily basis in the same manner and as if it had occurred on the same day as that change in his eligible rent.

(7) In any case where a claimant has received an extended payment or an extended payment (severe disablement allowance and incapacity benefit), his entitlement shall be adjusted in such circumstances and by such amount as are prescribed in Part 3 of Schedule 7 or paragraph 9 of Schedule 8, as the case may be.

(8) Any amount determined under these Regulations may, if it is appropriate, be rounded to the nearest whole penny by disregarding any amount less than half a penny and treating any amount of half a penny or more as a whole penny.

(9) In this regulation “daily rent” shall mean the amount determined by dividing by 7 the amount determined under whichever sub-paragraph of paragraph (2) is appropriate in each case.

(10) Where a claimant is entitled to benefit in respect of two (but not more than two) dwellings in accordance with regulation 7(6) his eligible rent shall be calculated in respect of each dwelling in accordance with this regulation.

[Anonymous]

Thanks very much Darren

[Anonymous]

I remember us having a heated debate about this issue on here a couple of years ago, when soeone called “gilesm”, who might now be known as Martin Giles (are you the same person?) was arguing the same line that the DWP’s answer takes.

Reg 80(4) says the claimant’s “eligible rent for the benefit week in which he becomes liable to make payments in respect of a dwelling which he occupies as his home shall be calculated by multiplying his daily rent by the number equal to the number of days in that benefit week for which he is liable to make [b:9311e2ce41]such payments[/b:9311e2ce41]”

This is how the DWP/gilesm argument runs: payments made for any day before the claimant actually moves in are payments in respect of a dwelling all right but, crucially, not in respect of a dwelling that the claimant occupies as his home. They only morph into “such payments” on the day the claimant moves in.

Whereas the view that other people took was: liability to make payments on the one hand and occupation of the dwelling on the other are two quite separate concepts – you cannot merge them into a single concept. There is a high level split between liability and occupation in s137 of the Act, which is replicated in the separate Regs 7 and 9 of the HB Regs. The calculation contemplated by Reg 80(4), or Reg 80(3) before it, looks at the payments the person is liable to make. The fact that they occupy the dwelling at all in that benefit week is what makes them entitled to HB, and Reg 80(4) is just fixing the amount. All payments made in that week are payments in respect of the dwelling occupied as the home, as opposed to some other dwelling. “Such payments” in Reg 80(4) means payments for that dwelling as distinct from anywhere else. If the intention had been to limit HB to the number of days on which the home is actually occupied, it could surely have been expressed more clearly and in a less obtuse way.

I can see how there is scope for debate here, but I am still not convinced that Reg 80(4) has that restricting effect.

To me, the problem with Reg 80(3) prior to amendment was not that it allowed you to get HB covering liability for the odd day before you moved in – no, the problem was that it allowed you to get HB to cover rent that you weren’t actually liable to pay at all! A weekly rent running from a Sunday would generate entitlement based on a whole week’s rent for the first benefit week even though the claimant only had one day’s rent to pay. By changing everything to a calculation based on the exact number of days, Reg 80(4) as amended ensures that you only get as much HB as you pay out in rent – fair enough.

But the argument that says Reg 80(4) restricts HB not only to days of rent liability but also to days of occupation seems to me to be so obscure and legalistic that I cannot really believe it is supposed to do that – it would have been so much easier to say that HB in the first week is awarded for any days on which the claimant occupies the dwelling as his home and on which he is liable to make payments in respect of that dwelling.

[Darren Broughton]

Peter,

I agree with you that the wording is not exactly clear and it could have been drafted in such a way as to avoid any confusion. It was for this reason that I queried this with the DWP to find out the original policy intention.

They seem quite certain that the policy intention was to only pay for days they are liable [b:ce10102d11]and[/b:ce10102d11] occupying the property so that’s the way we’re treating it. Shame the legislation couldn’t be made clearer though.

[seanosul]

Is this not part of the simplification agenda?

Ministers will soon get the pwers to mess around with primary legislation in this way as well. Cannot wait to see the mess they make of Social Security primary legislation when they get the powers to just throw around amendments like this.

[mclaren]

Don’t start me off re simplification!! Anyone else have an issue with the way we have to calc the weekly rent – as per A8/2006 Q/A 9 ?

In the case of the example given, if you had to pay the benefit to 2 different landlords, you would be overpaying the old landlord £17 (£47 for 3 days liability when the actual amount should be £30) and underpaying the new landlord £17 (£63 for 4 days when the actual amount should be £80.00). That doesn’t make any sense whatsoever!

If standard HB is awarded our benefit system would apply the taper to the weekly amount of rent for each address and then apportion the benefit award over the correct number of days for the respective addresses/landlords. This means that the benefit is correct up to the end/start of each address based on the apportioned amount of rent.

I appreciate that it is a [i:11d19a4c62]weekly benefit [/i:11d19a4c62]and you have to calc the [i:11d19a4c62]weekly rent [/i:11d19a4c62]to get the HB entitlement, but if rules now exist for daily hostel dwellers, why not have a more accurate way to calculate mid week changes if the regs allow us to make mid week changes.

It also means that from a processing sense more work (and therefore time) is involved – (1) changing the rent to the aggregated weekly amt from the Monday prior to the change, (2) changing the address from the date of change, (3) changing the rent to the new weekly amount from the Monday after the change.

Disappointing in that it makes the process more complicated that it could have been.

Looks like they don’t care about the practicalities of paying different landlords as come the revolution we’ll all be paying LHA directly to claimants so it wont matter how we apportion the benefit.

[Anonymous]

Does anybody’s system process differently than McLaren’s?

[Andy Thurman]

I might be being dim, but I don’t think there is an issue here.

I read Q/A 9 of A8 simply to confirm that the HB for the week of the move is based on the sum of the daily rents for old address up to date of move and new address from that date – as different from all wkly rents changing from the Monday & also ensuring 2 tapers aren’t applied. (i.e. in the example given, if 65% excess income was £14, the clmt would pay a total of £14, rather than £28, across the two addresses for that week – seems obvious perhaps, but the point I think it is trying to confirm.)

The system process McLaren describes appears fine – the total HB for the week is correct and the circular doesn’t state who the payment for that week is then made to (how it is apportioned between landlords). I don’t see any need to change the process as behind the scenes it is calculating fine & HB for the week is correct.

Or am I missing something? 😳 😕 8)

[Anonymous]

Andy – To me it is the choice between two calculations.
1. Eligible Rent calculated as per the regs (using the A8 example) would give en eligible rent of £110. ((£70 x 3/7 = 30) + (£140 x 4/7 = £80))
deduct the £14 as quoted in your posting to give £96.
Is this then apportioned between the two landlords
£96 x 3/7 = £41.14 Landlord A
£96 x 4/7 = £54.86 Landlord B
Total HB paid £96

OR

2. Do two separate calculations

£70 – £14 = £56 x 3/7 = £24 to Landlord A
£140 – £14 = £126 x 4/7 = £72 to Landlord B
Total HB paid £96

Are people happy that the second calculation is acceptable?

[Author]

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