Terms & Conditions

[Dawney]

I’ve just read this commissioners decision & I’m confused to say the least!
I can’t understand how the apellant can be treated as occupying the new address from April 2005 if she didn’t move in until May 2005!
Can someone enlighten me? There is no definition of occupation & therefore I cannot see how she can have benefit on 2 homes!
Thanks

[Tinab]

I was concerned about this as well and as I am prepapring a similar case for Tribunal I contacted the adelphi and they have advised as follows:

‘We are aware of the Commissioner’s decision and are considering our next course of action. In the meantime LAs should action cases as they would normally in these instances, ie implement the Commissioner’s decision in similar type cases until advised otherwise. When a decision is reached and agreed upon LAs will be notified and advised.’

‘If the cases are the same I personally don’t think it is worth referring them to the Tribunal Service. As the decision has been made by the Commissioner, irrespective of whether we agree with it or not, you would be correct in applying it. I hope there are not too many of them.’

So basically the Adelphi are saying that until told otherwise payment on two homes can be awarded regardless of whether the claimant occupied the new property from the beginning of the tenancy.

[Anonymous]

Got a link to that one folks? Cannot find any trace of it on the web.

I have just been looking at CSHB/385/2005 where Commissioner May considers whether the period not exceeding 4 weeks in Reg 7(6) (or 5(5) as was) could include days before the move, even though it cannot be looked at until after the move, and he resoundingly concludes that it cannot. This is the most microscopic analysis of Reg 7(6) that I have yet seen, and it seems to knock firmly on the head any idea that you can get HB on two homes before moving for any reason other than disability adaptations.

From your very brief comments above, it almost sounds like the same case – even the dates match up (except it was 2004, not 2005).

I’d very keen to see the new case.

[Tinab]

Sorry – couldn’t work out how to get it posted other than pasting whole submission in, I have sent you a copy via your email.

[Anonymous]

Thanks!

[Mark]

It’s a strange one alright. The decision seems to have 11th April and 11th May a bit muddled up which doesn’t help.

The Adelphi advice that Tinab received is a lot better than the early days when they wanted us to ignore certain decisions because they didn’t like them!

[Tinab]

Sorry – couldn’t work out how to get it posted other than pasting whole submission in, I have sent you a copy via your email.

[Anonymous]

Tinab (or anyone else)
Any chance of a copy as well – I cant find it anywhere on the net either
Jonathan.Phillips@wolverhampton.gov.uk

Cheers 8)

[Jules]

I’d also appreciate a copy.
julie.cebulski@nottinghamcity.gov.uk

Thanks

[jamcon]

Could I, too, have a copy.

James.connolly@southoxon.gov.uk

Thanks very much.

[Anonymous]

Please just send it to hbinfo@octagonconsultancy.com and we will post it under caselaw.

EDIT – thanks all. It will be on the site for Monday – as soon as the webmaster gets back from his well earned hols!

[Anonymous]

Just discussing this with a couple of colleagues to try and make sense of the facts(?) of this one… 😯

It seems to me that the Deputy Commissioner has completely redefined old reg 5(5).
Up until now, we have treated this as 4 weeks after the person moved into the new home, they could get HB on the old (if liability unavoidable etc etc).
The two clauses being linked.

DC Agnew appears to be saying that these two are not dependant. That the claimant can have the four weeks “overlap”, provided she moves in at some time (“occupies the home”), without this being the time that the new tenancy started.
Either that, or he is putting forward a new definition of occupying the home, not as being lived in, but as having a contractual ability to pay.

Either way, this seems to me to have blown a big hole in the regs as I would have thought most people were operating them.

Have I got this right?? 😉 😕

Confused of Wolverhampton 😕 8) 😕

PS Thanks to Mark and Tina for copies. 😀

[jamcon]

The Commissioner seems to be saying that the claimant “has moved into a new dwelling occupied as the home” from the start of the tenancy. This then means she could be paid up to four weeks on both properties. Unfortunately he has not stated why he believes she has moved in, which would have made for a much more helpful decision than the decision we now have.

[Anonymous]

I think DC Agnew may well have based his decision on a typographical howler in Findlay, or a reproduction of that error in the submission to him. He says (para 11) [color=blue:e10ee23872]I consider that Reg 5(5)(d) applies because (i) the claimant had moved into the dwelling, which she occupied as her home at 54 Hall Road, and (ii) it is clear from the opening words about being treated as occupying two dwellings, that it relates from the last words of the paragraph to the [/color:e10ee23872][color=green:e10ee23872]“period … immediately preceding the date on which he moved”.[/color:e10ee23872]

The words that I have coloured green above are actually part of subparagraph (e) and they have nothing at all to do with Reg 7(6)(d). But in the last few editions of Findlay, the indentation is out of kilter and those words look as if they apply to Reg 7(6) generally (or 5(5) as it was at that time). Well, they don’t. So DC Agnew’s decision seems to me to be based on a complete misreading of the layout and structure of Reg 7(6).

CSHB/385/2005 by Commissioner May is equally forensic in its analysis of Reg 7(6)(d) and in particular in its consideration of where precisely the four weeks referred to in that subpara fall. He is clear that they must fall after the date of the move, and no part of them can fall before it. 385/05 is definitely the better decision in my view. The similarity between the cases is so strong that I wonder whether they are both Glasgow Council, and I wonder whether this new one is the same welfare rights officer coming back for another go?

I don’t think DC Agnew is laying down any wider principle that a claimant occupies a home before moving in – he has looked at Reg 7(6)(d), noted that it only applies after the claimant has actually moved, but then concluded (wrongly) that the four weeks allowed can fall before the date of the move – because he has read part of subpara (e) as if it applies to subpara (d).

If the Court of Appeal overturns his decision on that ground, remember where you saw it first!

[Anonymous]

And here’s the proof:

The Housing Benefit (General) Amendment Regulations 1993
[url]http://www.opsi.gov.uk/si/si1993/Uksi_19930317_en_1.htm[/url]

If you look at Reg 3(2)(c) you will see that the words seized on by the Deputy Commissioner are clearly part of the inserted subparagraph (e).

Copper-bottomed grounds for appeal I’d say

[Author]

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