Terms & Conditions

[juju]

We are trying to put together a pro-forma for officers that shows they have made the appropriate considerations of old scheme claims before paying above the RO decision. Rather than invent the wheel has anyone got one they are willing share?
There are so many questions around size/rent/vulnerability that do not want it to be over complicated.

[fiona_copland]

I have done a flow chart to try and show whether it is old scheme/new scheme and if any protection should be applied. You are welcome to a copy if you post your e-mail address. May not exactly be what you are looking for though.

Fiona

[fiona_copland]

I have done a flow chart to try and show whether it is old scheme/new scheme and if any protection should be applied. You are welcome to a copy if you post your e-mail address. May not exactly be what you are looking for though.

Fiona

[Anonymous]

Fiona, why not send it to the webmaster and it can be put in the library section of the site?

[Kevin D]

I’ll try and summarise the bit after it has already been decided that “old HBR 13” applies – i.e. HBR 11 as it stood on 1 Jan 1996.

The provision can currently be found at [b:e95e06ea18]para 5 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006[/b:e95e06ea18]. The direction to Schedule 3 is through [b:e95e06ea18]Regulation 6(1)[/b:e95e06ea18] of the same regulations.

Regs: new.hbinfo.org.com/menu2/si/si2006_0217.shtml

The (summarised) tests…..

[b:e95e06ea18]1)[/b:e95e06ea18] Is the accommodation larger than reasonably required [[b:e95e06ea18]HBR(old) 13(3)(a)[/b:e95e06ea18]]?

[b:e95e06ea18]2)[/b:e95e06ea18] Is the rent “[b:e95e06ea18]unreasonably high[/b:e95e06ea18]” by comparison to EITHER the cost of suitable alternative accommodation, or to the R/O valuation [[b:e95e06ea18]HBR(old) 13(3)(b)[/b:e95e06ea18]].

Factors that an LA [b:e95e06ea18][u:e95e06ea18]must[/u:e95e06ea18][/b:e95e06ea18] consider when deciding suitability of accommodation are set out in [b:e95e06ea18]HBR(old) 13(9)(a)[/b:e95e06ea18].

If the answer to each of the above questions (i.e. 1 & 2) is “no”, a restriction cannot be applied, irrespective of any personal opinion on the level of rent.

If the answer to [u:e95e06ea18]either[/u:e95e06ea18] of the above questions is “yes”, the LA [u:e95e06ea18][b:e95e06ea18]MUST[/b:e95e06ea18][/u:e95e06ea18] apply a restriction ([b:e95e06ea18]SUBJECT[/b:e95e06ea18] to the following).

[b:e95e06ea18]3)[/b:e95e06ea18] a LA cannot restrict the eligible rent unreasonably (e.g. a “policy” of always restricting to the lowest levels of rent would probably be unlawful).

[b:e95e06ea18]4)[/b:e95e06ea18] if a clmt falls into what is informally known as a “vulnerable group”, a restriction can only be applied in limited circumstances. Those who fall into that group are specified in [b:e95e06ea18]HBR(old) 13(4)[/b:e95e06ea18] in conjunction with [b:e95e06ea18]HBR(old) 13(10)[/b:e95e06ea18]. These are (in summary):

a) someone is aged over 60;
b) someone incapable of work; **
c) someone capable of work in strictly limited circumstances; **
d) a member of the household is responsible for a child or young person.

**IMPORTANT: A LA does not have the power to determine whether or not a person is capable of work – it is a matter for the DWP (see [b:e95e06ea18]R(H) 03/06 paras 16-20[/b:e95e06ea18]).

[b:e95e06ea18]5)[/b:e95e06ea18] If there is a vulnerable person as prescribed by HBR(old) 13(4)&(10), a restriction can only be applied IF:

a) suitable alternative accommodation is [u:e95e06ea18][b:e95e06ea18]AVAILABLE[/b:e95e06ea18][/u:e95e06ea18] elsewhere; AND

b) it is reasonable to expect the clmt to move from his current accommodation [b:e95e06ea18]taking into account[/b:e95e06ea18] the “relevant factors”. Relevant factors, specified in [b:e95e06ea18]HBR(old) 13(9)(b)[/b:e95e06ea18], are the effects of a move on:

– the [u:e95e06ea18]claimant’s[/u:e95e06ea18] prospects of retaining employment; or
– the education of a child or young person (but [b:e95e06ea18]only[/b:e95e06ea18] if the move resulted in a change of school).

[u:e95e06ea18][b:e95e06ea18]Note:[/b:e95e06ea18][/u:e95e06ea18] The “relevant factors” are exhaustive – current case law confirms that no other factors matter in terms of whether it is reasonable for the clmt to move – see [b:e95e06ea18]R v LB Camden ex p “W” (1999) 32 HLR 879 CA[/b:e95e06ea18]. There was a later case (Doughty/Allerdale) where it was “found” that the relevant factors were not exhaustive; but Doughty was a High Court case whereas “W” was heard at the Court of Appeal. Hierachy means “W” should be followed unless/until it is successfully challenged.

[u:e95e06ea18][b:e95e06ea18]Subsidy:[/b:e95e06ea18][/u:e95e06ea18] In deciding at the first instance whether a rent is “unreasonably high”, a LA CANNOT take into account subsidy implications. However, if the case is one where the LA has determined that the rent is unreasonably high, and it is a case to which a restriction must be applied, the LA is allowed to take subsidy into account as a factor in deciding the level of restriction. However, as already stated above, LA’s cannot restrict unreasonably. This issue was looked at in [b:e95e06ea18]R v LB Brent ex p CONNERY (1989) 22 HLR 40 QBD[/b:e95e06ea18].

In terms of applying restrictions reasonably, [b:e95e06ea18]R v East Devon DC HBRB ex p GIBSON (1993) 25 HLR 487 CA[/b:e95e06ea18] is recommended reading along with the notes in the CPAG.

Hopefully, the above isn’t too confusing!

[jmembery]

Ju Ju. I have done something if you pm me your e-mail address.
Jeff

[juju]

Thanks everybody for your replies

Jeff I have sent PM – very grateful

[jmembery]

Juju – PM hasn’t arrived.
You can e-mail me at jmembery@aylesburyvaledc.gov.uk
it might be easier.

[Author]

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