Council Tax Benefit – Prescribed Person

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  • #38574
    Anonymous
    Guest

    A person is a tenant in property A. She was resident in property A and received HB. She left property A but remains a tenant and returns, lets say, every weekend and sometimes during the week. She is not liable for rent at the property she has moved to.

    I have decided that that she is no longer entitled to HB at property A because she does not normally occupy the dwelling as her home. No problem there, I am happy with my decision.

    Now comes CTB! The landlord considers her to be still resident and so do our Council Tax Section and, since she is there about a third of the week I can’t very well argue that it is a vacant property. So she is still liable for council tax.

    So, is she a prescribed person under reg 8(1) of the CTB regs because she is absent from home? I think not because the absences are always less than 13 weeks which means she is not prescribed under reg 8(3).

    s131(3) of SSCB Act 1192 says that a person is entitled to CTB if the person concerned is liable to pay CT in respect of a dwelling of which he is a resident and is not a prescibed person.

    Because I have decided that my claimant should be treated as not occupying property A for the purposes of reg 7 of HB regs does that mean that they are not resident at property A for CTB purposes?

    I see no reason why she should not still be treated as a resident of property A which means she would be entitled to CTB but not HB.

    I am not sure though :~

    #108825
    Kay_Tade
    Participant

    I’m sure I’m missing somehting here, before even embarking on the prescribed person bit and temp absence, why is she being treated as not resident in property A? she returns every week, landlord considers her to still be resident and so do ctax dept. Temp absence rules apply, no?, So……. :~

    #108827
    Kevin D
    Participant

    Flip a coin :).

    [Edit: this para added] As has been identified, there is no CTB for any day of absence UNLESS the temporary absence provision is engaged. So, in my view, the correct question has been considered: i.e. do the clmt’s absences fall within a “period of temporary absence” as defined within CTB 8(3)? If not, nil CTB irrespective of the basis for CTAX liability

    Ok, here some food for thought.

    CTBR 2(2) states:

    “In these Regulations, references to a claimant occupying a dwelling or premises as his home shall be construed in accordance with regulation 7 of the Housing Benefit Regulations”

    Great! Erm, I’m not so sure. In the whole of CTBR 8 or s.131(3), there is only one usage of a derivative of the word “occupancy” – CTBR 8(4)(f), which doesn’t appear to be relevant here. In my view, that *may* render CTBR 2(2) to be of no effect – but see a suggested argument further down.

    Next stop, s.131(11) states that “resident” and “dwelling” are to have the same have the same meanings as in Part I or II of the Local Government Finance Act 1992. Under s.6(5), “resident”, in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling,

    At first glance, the reference to “main residence” gives hope. But, presumably, CTAX are charging the clmt on the basis of the dwelling being the “main residence”. If so, that knocks that on the head (I can’t for a moment see any sensible LA going to Tribunal saying “Yeah, CTAX say she’s resident, Benefits say she’s not based on the same legislation….”. HOWEVER, if CTAX is being charged on a basis other than “main residence”, that would be the killer to CTB being awarded.

    So what’s left? Well, it depends on the reason(s ) for the “move” or absence(s ). If the clmt really has “moved” in the plain English sense, my inclination would be to construct an argument along the lines that CTB isn’t payable on the grounds that the intention to return to the dwelling is for reasons other than occupying it “as the home”.

    This is where it gets tricky. In CTBR 8(3)(b)(i), the wording is “the person intends to return to the dwelling” whereas in HBR 7(13)(a) the wording is “he intends to return to occupy the dwelling as his home”.

    As can be seen, the “home” element is missing from the CTBR provisions. BUT, I wonder if this is where CTBR 2(2) is intended to apply in order for the HBRs and CTBRs to be uniform in effect – at least in the context of this scenario? Or, alternatively, the context of CTBR 8 means the “home” provision should be taken as read in. The only snag with the latter construction is that if you can identify equivalent legislation which contains a particular requirement and it is absent from comparable legislation, it is strongly open to argument that the drafter could easily have made it the same and therefore any difference is deliberate.

    In short, no definitive answer but hopefully the above will assist in the thought process.

    #108880
    Anonymous
    Guest

    Thanks for your very quck response.

    Food for thought indeed:

    Ctax are treating the dwelling as the claimants’ main residence and that is not going to change. Our Ctax section are last the word in intransigence. So I am swaying towards paying CTB on the grounds that she is resident within the meaning of s131(11) (and continues to be resident during her temporary periods of absences).

    My concern with doing this is that it may prejudice my decision on HB. Of course I am aware that the decision on HB and CTB are completely seperate but I can just imagine a first tier judge saying ‘so you accept that the dwelling is her main residence yet at the same time you are saying that she does not normally occupy the dwelling as her home!’ :O

    #108883
    Kevin D
    Participant

    I don’t think you necessarily need to worry about a SENSIBLE FtT being prejudiced by apparently conflicting decisions. Cmmrs have already acknowledged it is possible to get different outcomes for HB/CTB where “occupancy” is concerned – see CH/4091/2006 & CH/2795/2006 where the difference was noted. Also see CH/1501/2007 which may or may not be helpful.

    Overly simplified, there is a difference between “main residence” and “normally occupying (as a home)”.

    #108891
    Kay_Tade
    Participant

    [quote=Kevin D]Overly simplified, there is a difference between “main residence” and “normally occupying (as a home)”.[/quote]

    Agreed, but if you fail the temp absence conditions for HB then same applies to CTB…. so no entitlement for both…..I think you will need to convince a tribunal that is possible to pay CTB but not HB. I can’t see it.

    #108904
    John Boxall
    Participant

    Why exactly is she absent?

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #108907
    Kay_Tade
    Participant

    [quote=archie]A person is a tenant in property A. She was resident in property A and received HB. She left property A but remains a tenant and returns, lets say, every weekend and sometimes during the week. She is not liable for rent at the property she has moved to.[/quote]

    I would have thought, from that statement of fact, that she wasn’t absent, John…..So maybe I don’t understand the post.

    #108910
    John Boxall
    Participant

    Well, it may be relevant. It could be that she – for example – stays at the other property as a condition of her employment

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #108911
    Kay_Tade
    Participant

    Oh, possible, then we go into that old merry go round of working away from home/where is home……….nooooo thank you……………. have a good weekend folks, bye. 😀

    #108912
    Anonymous
    Guest

    She has moved herself and her children away from property A to property B because she does not want her kids growing up the environment of property A.

    Her children all go to school around property B ( which is some 70 miles from property A) and she has signed on for JSA in property B area. Property B is a relative and she pays no rent.

    Her landlord is a RSL (or whatever they are called these days) and she has applied for re-housing with her landlord in property B area but so far she has not been successful. She does not want to relinquish the tenancy because she will lose her chance of re-housing.

    However, she returns to property A, as I said, every weekend and during the week for personal and ‘business’ reasons!

    I do not think she is entitled to HB but since our CTAX section insist on treating her as a main resident of property A it seems wrong not to treat her as the main resident for CTB purposes.

    She has loads of other issues that would take too long to go into and, believe me, she will have enough on her plate with her rent arrears let alone CT arrears as well!

    You did ask!! 🙂

    #108913
    John Boxall
    Participant

    Thats fine, she clearly is occupying the other property as her home, not the one in your area.

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

    #108915
    Kay_Tade
    Participant

    Hmm, makes a bit more sense now, I think I would play devils advocate here. I know that you will say she considers the family home as her main home now, but as she satisfies all the temp absence conditions, liablity, intent[This doesn’t come into it as she ACTUALLY physcally returns home, no sub let etc.. etc..
    I would argue, as all the boxes for entitlement are ticked, eligibility HB/CTB is still in play. At least that’s what I would advise the claimant to argue on appeal.

    #108921
    Anonymous
    Guest

    You could be right Kay. Time will tell. Unfortunately, given the backlog of FT Tribunals in my area it could be a long time!

    #108923
    Kevin D
    Participant

    [quote=Kay_Tade][quote=Kevin D]Overly simplified, there is a difference between “main residence” and “normally occupying (as a home)”.[/quote]

    Agreed, but if you fail the temp absence conditions for HB then same applies to CTB…. so no entitlement for both…..I think you will need to convince a tribunal that is possible to pay CTB but not HB. I can’t see it.[/quote]

    —————————————(the quote thing isn’t working properly)

    Hi Kay. Surprising as it may seem, it is quite possible to be entitled to CTB whilst not being entitled to HB and vice-versa – the CDs I cited confirm this.

    The starting point for CTB is that a person absent from a dwelling is absolutely NOT entitled unless they expressly fall within “a period of temporary absence”. Another distinction, critical in the case of this thread, is the term “main residence” which only applies to CTB. For HB, it’s about normally occupying as the home. So, someone could easily have ceased to occupy a dwelling in the context of HB, but that same dwelling could still legally be regarded as the “main residence” for CTB, over the same period.

    So, if a clmt is no longer occupying a dwelling as a normal home, there is no HB. Also, unless a clmt intends to return to occupy the dwelling AS THE HOME, there is no entitlement under the temp absence provisions. In this case, the clmt has plainly occupied another property as “the home”.

    But, CTB *may* still be payable because, in law, the first property is still apparently regarded as being the main residence. The “intention” arm for returning is differently worded for CTB – there is no mention of the return having to be for the purpose of occupying the dwelling as “the home” (unlike for HB). That leaves it open to argument that so long as the clmt intends to simply “return”, the temp absence rule is satisfied for CTB whilst not being remotely satisfied for HB.

    Is it daft? Absolutely.

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