Terms & Conditions

[Anonymous]

We have a case which has caused a lot of argument / debate / discussion in the office over eligibility for HB.

A claimant has moved into this area because her partner is serving a prison sentence in the local prison and she wants to be near him for visiting purposes. The claimant is single and over 25. She is in receipt of IS and Incapacity Benefit.

She is currently residing in a hotel being charged £350 per week (£50 per night for bed and breakfast). The debate we are having is whether this can be classed as her home. She has stated that she has no other address. This hotel is a “proper” hotel and not one that takes homeless B & B cases so if we are to pay it would be a normal Rent Allowance case. The property is classed with our planning department as a hotel which would mean that it could not be used for residential purposes.

Can I ask if people would pay HB and if not which regulations they would use .

Thanks

[andyrichards]

If it is her normal home, then I do not see that the payments can be anything other than rent (within Reg 10). But presumably a Rent Officer is going decide that the rent is exceptionally high (by some way). That will leave her with a big shortfall unless you decide to make DHP’s.

Seems like she is in need of some sensible advice about her options; renting a flat would seem the most obvious of those, unless there are special needs that would make the hotel a better option.

[Andy Thurman]

But if she hasn’t claimed any HB in the last 52 weeks and “previously afforded” her rent – 13wk protection could apply 😈

I think it might be worth asking how she is affording the “rent” currently, what address the hotel hold as her home & checking there isn’t a liability elsewhere – what does she state as previous address? Might be worth checking with the LA there! Where do JC+ think she lives?

If all adds up then pay!!

[andyrichards]

Hmmm…unless I’ve been misinterpreting Reg 11(9) all these years it only affords “protection” from any rent restriction on the property in respect of which the HB award is being made, not some earlier property.

She also has to show that she could “meet the financial commitments of the dwelling when they were entered into”. Usually this means a bit more than just paying the first week’s rent yourself and then claiming (doesn’t it?). In this case if she is renting week to week then I guess 11(9) could arguably apply if she paid for the first week or two herself.

Are you all suitably impressed with my level of confidence in my interpretation of Reg 11?

[Anonymous]

and not forgetting by the time you reduce the nightly charge of all the ineligble costs the eligble rent will be nowhere near £350 per week.

Love your interpretation of reg 11….. couldnt have done better myself if I tried….

[Kevin D]

HBR 11(9) makes no mention of which address HB has been paid at in the past 12 months. Therefore, I think if HB has been paid at ANY address in the past 12 months, there can be no protection under 11(9).

One observation about “dwelling”. The definition of “dwelling” in s.137 of the SSCBA 1992 makes it clear it must be residential. However, given that homeless cases are sometimes paid in respect of hotels such as “Days Inn” (rated as a hotel), I’m not sure it would be easy to argue that a hotel was not residential in the context of HB.

There is a bit of case law on dwelling, but the circumstances were very different – available on http://www.bailii.org

R v Warrington BC ex p WILLIAMS (1997) EWHC Admin 78 QBD 29 HLR 872

As an aside, I’d also be making serious enquiries about whether or not the clmt has another address.

Regards

[Anonymous]

and not forgetting by the time you reduce the nightly charge of all the ineligble costs the eligble rent will be nowhere near £350 per week.

Love your interpretation of reg 11….. couldnt have done better myself if I tried….

[andyrichards]

Just to clarify my point about different dwellings was that the rent you “could afford” has to be for the same dwelling as the one for which you are seeking 13 weeks with no rent restriction.

I agree that the “no HB in preceding 52 weeks” condition is unrelated to dwellings.

[peterdelamothe]

I do not believe the customer is eligible. This issue comes up from time to time and I cannot remember all the legal issues but I think it is to do with whether the tenant pays “rent”. Homeless hotels are clear – they are designed for people to live in. But holiday hotels do not charge rent or anything that can be deemed as rent. There is no right to reside or security of course. Also is it a dwelling?

If you accept such an argument, then all hotels are prime targets for HB take-up. Shall I send a load of claim forms to the Savoy? It surely gives a new meaning to “benefit tourists”!

I am sure this is the type of matter that will go to the Commisioners. Also I am fairly sure that DWP would wish to join in.

[Anonymous]

I have paid many people who have occupied a room in a hotel as their “dwelling”; both homeless and “normal” tenancies.

Many times these are in the same hotels, some are placed there via housing department, some seem to find their own way there – they tend to be short stayers when the Hb award is notified!

Why are some to be classed as “ineligible” depending on who placed them or to whom they are liable to pay? is it the room? (I have paid on the same room as homeless and “normal” for the same room) is it the landlord?

Is it some planning issue? is it something to do with the Housing Act(s)?

Is it because this is not (or not to be deemed) their “normal” home? even if they have no “other” home?

Willing to have my mind changed with some reasoning?

[Anonymous]

Mr Commissioner Jacobs held that HB could be paid regardless of issues of planning permission and the like. He wrote at para 16 of CH/296/2004

“16. Some issues were raised relating to planning permission, housing lists, and the availability of accommodation. Those factors cannot affect the nature of the arrangement between the claimant and his father as landlord and tenant, either individually or collectively”

He also held in CH/318/2005 that HB could be paid in respect of a licence for a temporary mooring of a narrow boat. He wrote at para 15:

“15. I accept that dwellings and residential accommodation almost always have a fixed location. However, that is a matter of practice and convenience. It is not a matter of definition. To my mind, ‘dwelling’ and ‘accommodation’ both convey a relationship between a person and that person’s base. They do not convey a relationship between that base and a particular location or piece of land where it may happen to be. ‘Residential’ merely serves to emphasis that the base is for domestic and social purposes, not for a business, trade or profession”

and at para 17

“17. Part of the discussion of this point at the oral hearing involved accommodation that might be temporary or merely transitory. I can see no reason why this should affect a claimant’s entitlement to housing benefit. The fact that a claimant’s occupation is limited in duration or uncertain in its tenure may be relevant to the issue whether it is that claimant’s home. But if that condition is satisfied, I can see no reason within the scheme why these factors should bar the claimant’s entitlement to housing benefit. ”

I dont see how HB can be refused merely because someone is living in a hotel room, but whether it should be restricted is another matter altogether

[Anonymous]

I used to work for Westminster Council where there were at any one time thousands of claimants getting HB for rooms in hundreds of establishments that were described as hotels. “Hotel” was a big category, and it included:

– HMOs where there was very little, apart from the sign outside, to create the impression of a hotel. There might sometimes be a half-arsed attempt to make the entrance hall look like a hotel reception, sometimes there were basic groceries delivered by way of breakfast, but these were in no real sense hotels. The illusion was maintained in order to avoid some environmental and tenancy relations sanctions, although an unexpected side effect was that the hotel sign outside seemed to bewitch the Rent Officer into temporarily taking leave of his senses. In most of these places, all residents were on HB because people who had any choice would not want to live there. They tended to be self-placed rent allowance claimants

– Places that were more plausible “hotels” – there would usually be a staffed reception area, sometimes a laundry service or a dining room. These tended to be hotels that had once been quite pleasant, rather grand in some cases, but had declined: the buildings were not in a good state and these were not the sort of place that the paying punter would choose to go on holiday. The residents tended to be a mixture of homeless families receiving rebates from the placing authority (ironically, that was hardly ever us) and self-placed privatre residents on rent allowance. At the top end of this group, there was some overlap with low budget tourists – backpackers and so on.

– Hotels that were thriving on “proper” hotel trade – paying guests on holiday or business. Occasionally, an HB claimant would crop up in one of these. We even had a claimant in the Cumberland Hotel at Marble Arch. For all I know, he’s still there.

All of these people were able to claim benefit because the hotel was the only place they had to live and we were satisfied that it passed muster as a dwelling for benefit purposes. I still have not seen a convincing argument that says a “dwelling” must be somewhere that was constructed or adapted for the purpose of permanent residence. As the examples above show, the permanance or otherwise of a hotel’s clientele is determined largely by market forces. Obviously the poorest will congregate in the poorest hotels, but other than that there was no difference between the cheapest doss house and the Cumberland Hotel. If a dwelling had to be a house or flat built for permanent living, where does that leave hostels? A dwelling is simply the place where you live.

In addition to the Commissioner’s decision referred to by Stainsby, two cases are worth a look:

Williams and Warrington, where the claimant originally rented a garage under a commercial lease and later started living there (without the landlord’s permission). His rent liability arose under the original commercial terms – he had been renting the place commercially before he started to live in it, so he wasn’t making payments in respect of a dwelling. The reason he had to make payments was unconnected with his living there. The case does not, however, make any ruling on the physical qualities of a dwelling.

Uratemp and Collins (House of Lords), where the landlord was trying to argue that a resident in a hotel room did not have an assured tenancy, because there was no “dwelling” of which he had exclusive possession. In the context of hotel rooms this is probably the best case, even though it’s not a Benefits case. The tenant won and the following extract sums it up:

“The words “dwell” and “dwelling” are not terms of art with a specialised legal meaning. They are ordinary English words … in both ordinary and literary usage, residential accommodation is “a dwelling” if it is the occupier’s home (or one of his homes). It is the place where he lives and to which he returns and which forms the centre of his existence.”

[andyrichards]

Didn’t Alan Partridge live in a hotel when he was working on Radio Norwich? That’s what I was basing my assessment on.

[APT]

[quote:bd4106b5c6=”Peter Barker”]I used to work for Westminster Council where there were at any one time thousands of claimants getting HB for rooms in hundreds of establishments that were described as hotels. “Hotel” was a big category, and it included: snip[/quote:bd4106b5c6]

As another ex WCC person I just wanted to back up what Peter said. Once any issues about the hotel being the main home had been sorted out (we did get the odd occasion where people that were staying in Londin for a short time before returning to their normal home) in the vast majority of cases benefit was payable on hotel cases.

[quote:bd4106b5c6]We even had a claimant in the Cumberland Hotel at Marble Arch. For all I know, he’s still there. [/quote:bd4106b5c6]

That was a case I used to deal with. 😯

Don’t think he’s been there for a while.

[John Smith]

We have a case where the premises does not have a council tax propery reference as the VOA classified it as business rates. However, our claimant has been living there for more than a year and has a document called a "tenancy" agreement, that looks as good a tenancy agreement as many other WH Smith fill in the dots that we pay. The claimant clearly dwells in the room, and has no other dwelling. The business rates address is "Room Lettings at …" – which seems a pretty good statement of intent!

I cannot possibly see how we cannot pay HB. However, I am led to beleive that there are problems setting up the claim on the computer system because of the lack of a property reference. Also, we have some old-school diehards who take the view "no prop ref, no benefit" …

Any further thoughts on this topic welcomed.

[Author]

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