Non deps and temporary absence

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    Chris Robbins

    I would be grateful for any opinions on the following scenario:
    HB/CTB award in payment based on 3 bed LHA rate. Family is husband and wife and 2 non dep daughters.
    The younger daughter has been forced to leave the property under a witness protection arrangement. Although she intends to return to the family home when it is safe to do so she is currently claiming HB in her own right on accommodation elsewhere. The question is whether or not we have to reduce the LHA rate on the parents award?
    My instinct was to say yes we do. The daughter has to be occupying her current accommodation as her home otherwise she could not receive HB in respect of her liability. If she is occupying that accommodation she cannot be occupying anywhere else (Reg 7(1)).
    However a Welfare Rights Officer has asked me to look again. They have quoted R(H) 8/09 (on this site as UKUT 67 (AAT)) which is a case where it was held a student at University could still be treated as occupying the family home even where he did not spend the majority of his time there. The argument is that we could use Reg 7(16)(x) to say the absence is temporary, there is an intention to return, and that there is no difference between this girl paying a charge on her temporary accommodation (albeit met by HB) and a student who has to pay for his term time accommodation.
    When I looked at this argument I noted that the heading to Reg 7 refers to PERSONS not claimants. It also in Reg 7(1) refers to a dwelling NORMALLY occupied as the home as distinct from the definition in Section 130 of SSCBA which does not use the word normally.
    I can therefore see the attractions of this argument. I just have a gut feeling I must be missing something simple that prevents us from treating a non dep as temporarily absent if they are actually claiming HB elsewhere.
    Any advice or opinions would be gratefully received.


    Seems a bit harsh but I would reduce the LHA as she is claiming HB elsewhere. The comparison with the case of a student, would be that they would still be entitled to LHA rate as long as they were not eligible for HB in their student accommodation. In this case the non dep is eligible for rent and therefore parents not entitled to LHA rate. The only other thing I would suggest is DHP.

    Kevin D

    In my opinion, the payment of HB for the youngest daughter is the clincher.

    HB is only payable for accommodation which is occupied as the home. So, payment of HB indicates it is THAT accommodation which is being occupied as the home.

    Further, HBR 7(2) is surely relevant here – “In determining whether a dwelling is the dwelling normally occupied as a person´s home for the purpose of paragraph (1) regard shall be had to any other dwelling occupied by that person or any other person referred to in paragraph (1) whether or not that dwelling is in Great Britain.”

    Apart from HBR 7(6), there is no provision allowing the youngest daughter to be treated as occupying two dwellings at the same time.

    In my view, R(H) 8/09 is easily distinguishable on the facts of the case detailed so far.

    In turn, I think the LHA rate must be reduced.

    As an aside and somewhat controversially, I question whether R(H) 8/09 was correctly decided. Why? Simple. If HB was, in principle, payable to (all) students, would it seriously be argued that a student would be refused HB at the “away” address on the grounds that the normal home was the parents for holidays? If so, should all the students paid HB when it was payable for students have been refused?


    There is a more recent case you want to look at – CH/2197/2009 (my copy does not have the UKUT serial number on it).

    This is extremely difficult to read – nigh on impenetrable in places.

    But after going through it a couple of times, and at the risk of grossly over-simplifying, Judge Mesher seems to be saying this:

    – if a person is treated as occupying a dwelling under Reg 7(3) upwards, it follows that it is not his/her normal home. If it was, you wouldn’t need to go any further than Reg 7(1) and (2). Paras (3) [i:a81e59cb77]et seq [/i:a81e59cb77]are only necessary in cases where the dwelling(s) nominated therein would not otherwise have been identified as the normal home
    – if a grown-up child is temporarily absent from his/her parents’ home, she can be treated as if s/he occupies it for the purposes of the parents’ LHA size criteria
    – but in the meantime, s/he can claim HB for his/her own true normal home occupied elsewhere

    So the daughter occupies a different home depending who is the claimant – her temporary address for her own claim, and her parents’ address for theirs.

    There is a bit more to it than that (especially the analysis of Reg 7(3) and its use of the term “claimant”) – it really is a monster of a decision to read – but I think I have picked out the key points insofar as they are relevant to this thread.

    Don’t make a decision until you have read CH/2197/2009. Give yourself abou three days! 😀

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