Terms & Conditions

[Darren Tompkins]

What is everyone else’s opinion on the the following?:

A non-dep is resident when when claimant’s SPC’s start so no 26 week concession is awarded. The Non-dep moves out of the property only to return 4 weeks later. However, the claimant does not inform the LA that the Non-dep had moved out until 6 weeks after they had vacated the property.

Due to the beneficial change in circs rules we cannot take the Non-dep out of the claim because we were notified outside of the calendar month allowed. So, when the Non-dep physically moved back in they were still included in the HB/CTB claim.

What happens to the 26 week concession they would be allowed for a non-dep moving in?

[Mark]

I think all these non dep deduction 26 week questions are a bit premature – but only because the relevant legislation is so late. I thought Peter’s earlier effort to explain how it will work for a long list of scenarios was rather brave! I think for safety’s sake we had all better wait for the SI to come out. I’m not sure having just returned from holiday whether it is good or bad that so little new information about Pension Credit seems to have evolved in my absence.

[Mark]

Now that the SI is out it seems only fair to re-open this one and come up with an answer. Peverse it may be but I would argue that the deduction would be delayed for 26 weeks from when the non-dep moved back in. After all – the non dep would be someone who “took up residence”. I should point out that this is very much debateable and I would be keen for someone here to argue the reverse.

Can I also invite someone to take a look at the new para 11 of Reg 68 as inserted by SI2003/2275. Is this (accidentally?) saying that the 26 week rule can only be used once for each non-dependant? It certainly seems to imply that to me but it has been a long day!

[Mark]

I should have said that this new para 11 is designed to deal with situations where another change happens before the 26 weeks is up. The question is – is that all it does?

[Anonymous]

I think that is all it does. The amended paragraph 11 says that the effective date in a case where more than one change affects the same non-dep is 26 weeks after the latest of, either the date on which entitlement to HB first began, or the last effective date of ‘such a change’.
Bujt I could be wrong.

[Mark]

Can I return to the original question and change my answer slightly? It occurs to me that an absence of 4 weeks is unlikely to be treated in the way I described. I say this because if someone genuinely moves out and them back in again I still think that the 26 week rule applies on their return. But we need to remember also that deductions ARE made for absent non-dependants if the property is still their “normal” home”. For example, when non-deps go on holiday the deductions for them don’t end. So maybe a better answer to Darren’s question is to say that whenever a non-dep returns to a property we need to first decide whether the property constituted their normal home during the absence.

As far as my other suggestion goes about whether the new regs say what they’re supposed to I still think they’re a bit ambiguous – although in practice the intent is fairly clear.

[Darren Tompkins]

I agree that we must look at the whether the property remains the normal home of the non-dep. If we determine that the move was genuine (e.g. – living with parents, then moves in with partner for 4 weeks, but then moves out back to parents) we should look at awarding the 26 week rule as the non-dep is now someone who ‘took up residence’. However, my problem lies in how we actually process this. The only way I can think it would work is if the non-dep was left in for the period of their absence, but then taken out and re-input on the day they actually returned. I only hope our system allows this to happen, otherwise I can foresee other problems developing.

However, to complicate things further – if we decide to award the 26 week rule then this will also become a beneficial change in circs (as we will now disregard the non-dep deduction) so what happens if we were notified of the return after a calendar month? When does the 26 week criteria start? From the date they moved in, or the date we were notified?

I’m so glad they introduced Pension Credits to simplify our lives!

[Mark]

I would argue that a non-dependant moving in can never be classed as a beneficial change of circumstances because it can not possibly increase entitlement. So that ones a bit of a red herring. However, the regs are clear that the 26 weeks starts from the date the change of circumstances occurs regardles of when it was notified.

[Anonymous]

Mark, how about this?

claimant on i/s and rent is restricted as overaccomodated.

non-dep moved in, re-referred to R/O and higher rent agreed.

If the increase in HB is more than any n/dep charge I would say that is a beneficial change of circumstances.

[Mark]

Agreed – unusual but nonetheless possible and interesting. I need to have a think about how the 26 week rule will impact on the D&A regs now. Give me a few days to come up with something!

[Darren Tompkins]

The reason I stated that it would be a beneficial change relates to the original scenario. We were not told that the non-dep had moved out within 1 calendar month, and therefore do not remove the non-dep from the claim. When the non-dep moves back in (and we determine that the 26 week criteria is allowable) the situation arises that we hadn’t removed them for the claim, so when we do remove them the non-dep deduction will be reduced and hence awarding more benefit.

I’m only chasing this as I have to give feedback to member of staff who isn’t happy unless the exact scenario is answered.

[Anonymous]

since non-dep moving out does not affect pc, the change needs to be considered under d&a regs

first need to identify if non-dep moving out is advantageous to claimant, (taking into account the deduction, changes to rent officer determiation, possible application of single person discount for council tax)

if not advantageous, then change takes effect from date of change, therefore non-dep removed, and 26 week protection is effective fropm date of return.

if advantageous, then claimant can make application for late notification of change of circumstances, LA must then determine whether delay was reasonable and if claimant had special reasons for failure to notify change within one calendar month. if LA accepts application, then we go back to previous paragraph.

if advantageous and application refused, then non-dep is treated as having remained resident, and no 26 week protection applies.

and lets not forget that you could have situation where change could be advantageous for ctb and not htb, or vice versa. lol

[Author]

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