Official Error

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    can any one shed some light on the following, since 1996 the claimants eligble rent has been treated as falling under the new scheme, after reviewing the facts it turns out that it falls under the old scheme,exempt cases, as it stands now the authority would potentialy owe the claimant many thousands.

    can this be revised as far going back as far 1996?? on the basis of official error

    Kevin D

    For going back to 2 July 2001, the straight answer is yes – [b:3832d3b87d]DAR 4(2)[/b:3832d3b87d]. But, this is entirely discretionary. There is no right of appeal to a Tribunal if the LA refuses to revise (so long as discretion hasn’t been fettered). The only means of a challenge would be through JR.

    I’ve become so confused as to what legislation can be applied to when, I haven’t currently got a clue if you can go back further than July 2001.

    But, in light of CH/423/2006, and taking into account the numerous issues that have been detailed on this forum, is it really exempt? I’m struggling to get my head around the idea that a (proper) exempt case hasn’t previously been challenged….



    thanks for that, this is a case where the claimant has been in ocupation since 1991 and continously been entitled to HB with no breaks. the authority has been treating it as a new scheme case with their being big deductions from the actual rent because of rent officers figures.

    Kevin D

    Aha! THAT type of “exempt”!

    I apologise is you already know this, but that form of exemption doesn’t necessarily mean all of the rent should be paid.

    A restriction must still be applied if there is cheaper suitable alternative accommodation available elsewhere (“old” HBR 13 – now [b:59b78cff37]Reg 6(1) & para 5(2) in Sch 3 of the HB/CTB(CP)R 2006[/b:59b78cff37]).

    If the clmt is in a “vulnerable” group (para 4 to HBR 13 in para 5(2)), such accommodation must also be available before a restriction can be applied.

    The wording of the whole provision can be found here: (a search for any part of “Restrictions on unreasonable payments” will eventually locate the relevant provision).



    Thanks the claimant is in a protected group and given the claimants condition it would be unreasonable for him to move, and if I remember right ive seen a c decision that the absence of a deposit would mean that no alternative accommodation is available.

    Mentioning the other type of exempt ive got a case where a charity owns a property the trustees of the charity have a disabled son which occupies the property and the mother who is a trustee provides her son with care support supervision does this fall under the old scheme???

    reading rivendell case It would appear to me that since the mother would anyway provide the care to her son I just cannot see the clear link to suggest that the care is being provided on behalf of the charity, I suppose perhaps an employment contract between the mother and the charity would demonstrate this link

    Please comment

    Kevin D

    [b:2f6f96a82a]Case 1[/b:2f6f96a82a]: Deposit – yes, that would fall within the issue of availability, although it shouldn’t be assumed that all alternative accommodation would require a deposit (granted, most will).

    Just for info, [u:2f6f96a82a]only[/u:2f6f96a82a] the “relevant factors” can be taken into account when deciding if it is reasonable to expect the clmt to move. The relevant factors are:

    a) the prospect of retaining (existing) employment
    b) the effect on a child’s education (& then, only if a move resulted in a change of school).

    No other factors can be considered when looking at whether it is reasonable to expect a clmt to move – see [b:2f6f96a82a]R v Camden LBC ex parte “W” (1999) 32 HLR 879 CA[/b:2f6f96a82a]. There is a High Court decision (“Doughty”) where “relevant factors” was found to have a wider scope, but “[b:2f6f96a82a]W[/b:2f6f96a82a]” is a Court of Appeal case and is binding over a High Court decision.

    [b:2f6f96a82a]Case 2[/b:2f6f96a82a]:

    There would, in my view, need to be a formal obligation / duty for care to be provided. Despite ongoing attempts by certain landlords to shift the goalposts by saying any old care, support or supervision (CSS) is enough, I don’t think it is. Until / unless found otherwise by a Cmmr, my analysis remains as follows:

    Following [b:2f6f96a82a]CH/0423/2006[/b:2f6f96a82a] (paras 31 & 32), I think it can properly be argued that CSS only counts for HB purposes if:

    a) there was a contractual agreement between the tenant and the accommodation provider which included a (genuine) term that CSS was provided to the tenant; and

    b) the accommodation provider was itself under a (genuine) contractual or other obligation / duty to provide, or supply, CSS; and

    c) the official duties of the person(s) providing CSS included the provision of CSS; this being for, or on behalf of, the accommodation provider, and;

    d) the services / assistance provided during such visits constituted CSS.

    If Social Services are responsible for CSS, then it is highly unlikely to be an “exempt accommodation” case.

    Hope the above helps.

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