Terms & Conditions

[Anonymous]

Claimant in receipt of Incap and DLA care.

Tenancy start date 22 May 06
Application received 23 May 06
Date moves in 29 May 06

What is the Hb and CTB start date for these?

I understood the old first week rules to be that Hb would start from the Monday after date moved in, 5th June 06 and CTB would start from the 29th as this is the first week of liability.

I have discussed this with a colleague who states that the new rules suggest that HB should be paid from 29 May 06. Is this right? Am I right with the HB/ CTB/ anything?!?!?!
😯

[Kevin D]

Tim,

I’m also beginning to wonder if I know anything :).

But, I think you’re correct. The following Monday rule applies to HB – this is consistent with [b:96119e516e]HBR 76(1)[/b:96119e516e]. HBR 76(2) cannot apply, because liability does not begin for the first time in the same week that the conditions of entitlement are satisfied.

This principle was confirmed in
[b:96119e516e]SoS DWP v Robinson & City of Sunderland [2004] EWCA Civ 342[/b:96119e516e]
(aka R(H) 04/04 – CH/0880/2003 (this is in the “Miscellaneous” subsection of the Caselaw link)).

In my view, none of the Nov 05 (or Apr 06) changes in regs make any difference to this scenario.

Regards

[Anonymous]

Thanks for putting my mind at rest! At least I know that not all these changes are completely removing any knowledge I had. 😆

[Anonymous]

I think your ingenious colleague is onto something, although I don’t think it works in this particular case. I’ll come to back to that in a moment.

First, the conventional view and case law. If the claimant does not move in until after the week of the claim, they miss out big time because HB does not start until the week after they move in: 5 June in this case. This was the view reached by the Court of Appeal in Robinson – see earlier thread here:

[url]http://hbinfo.org/forum/viewtopic.php?t=5481[/url]

As I argued in that thread, I think the Court completely overlooked the fact that “treated as made” is a term of art, so its decision may have been [i:d9881a23ed]per incuriam[/i:d9881a23ed] as they say (made in ignorance of a relevant statute).

Now to your colleague’s suggestion. It’s not the April amendments in themselves that raise this argument, but discussion about the new form of the Regs has highlighted an important issue about “liable to make payments in respect of the dwelling occupied as the home”. The DWP’s view is that in a case where you move in during the first week of your tenancy, you can get HB from the day you move in – and if your rent liability starts a day or two earlier, well tough, because your liability is not in respect of the dwelling occupied as the home on those days. That is the interpretation that DWP relies on in its guidance about the amount of HB in the first week calculated under Reg 80(4):

[i:d9881a23ed]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 the 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 week for which he is liable to make such payments;[/i:d9881a23ed]

DWP says you only get a day’s HB for each day on which you are not only liable to make payments, but liable to make payments in respect of the dwelling occupied as your home. They say it is not the dwelling occupied as the home on any day before you live in it, so they aren’t “such payments” until you move in.

Well in that case, lets have a look at Reg 76(2):

[i:d9881a23ed]Where a claimant is otherwise entitled to housing benefit and becomes liable, for the first time, to make payments in respect of the dwelling which he occupies as his home in the benefit week in which his claim is or is treated as made, he shall be so entitled from that benefit week[/i:d9881a23ed]

It seems to me that if we follow the policy intention outlined in DWP guidance, the claimant does not become liable to make payments in respect of the dwelling occupied as the home until s/he moves in: before that, they are a different kind of payment. So the first time you have the right kind of rent liability is on the day you move in. If that is the case, a claimant whose rent liability started in a past week should be able to get HB under Reg 76(2) from the day they move in if their claim is made in that same week.

I am not sure I agree with this, because I am not totally convinced about the DWP’s position on Reg 80(4). But it seems to me we must be consistent one way or the other, so if you are planning to follow DWP guidance on the amount of rent used to calculate HB in the first week, you must also interpret Reg 76(2) to apply to a claim made in the week you move in, even if your tenancy date is in an earlier week.

Now the bad news: your claimant did not claim HB in the week she moved in, she claimed it in the previous week. It seems to me to be utterly perverse that she should lose out because of her promptness – the injustice of it sticks out like a sore thumb, as it does in the Robinson case discussed above.

I still believe that the fairest way to deal with these cases, which Sunderland also believed, is to treat the claim as an advance claim made in the week before the claimant moved in and award HB from the week she moved in. I think the Regs support that view at least as firmly as they support the Court’s view.

[Anonymous]

Thanks for your response. However, as it is still early, does that mean that I should pay the claim from the 29th May or 5th June?! There seem to be arguments for both there.

Also, as CTB liability starts 29th June would I pay this from this date, irrespective of the decision made for the HB start date (29 May/ 5 June) or would I apply both rules to both sides of the claim?

Love these rule changes and interpretations, it makes things so much more fun! 😥

[Anonymous]

Thanks for your response. However, as it is still early, does that mean that I should pay the claim from the 29th May or 5th June?! There seem to be arguments for both there.

Also, as CTB liability starts 29th June would I pay this from this date, irrespective of the decision made for the HB start date (29 May/ 5 June) or would I apply both rules to both sides of the claim?

Love these rule changes and interpretations, it makes things so much more fun! 😥

[Anonymous]

The Robinson principle doesn’t carry over easily to CTB, because CTB does not have the twin concepts of occupation and liability: you just have liability and that’s it. The claim was not made in the week in which liability commenced (it was made in the previous week); if you transfer what you can from Robinson, you would treat the CTB claim as if it was made on 29 May, and that would coincide with the first week of liability; alternatively, you could use Sunderland Council’s way out (which I like) of treating the claim as an advance claim, so again CTB would run from 29 May. Any way you slice it, CTB is paid from 29 May.

As for HB, it depends how bold you feel. The Robinson case currently says 5 June, but as I said earlier I think it was based on a misinterpretation of the term “treated as made” and if I was a Tribunal or Commissioner I would be inclined to say 29 May for HB as well. Might be a bit isolated in that view though.

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