My local LA is checking that tenants have moved into a property the week the Housing Benefit commences.

In some cases where for example a tenant as been homeless & does not have any furniture they are not moving in straight away and they are still “sofa surfing” staying with friends the odd night whilst they are getting beds etc. HB is refusing to pay stating they are not occupying the property.

I also had a case where a 74 year old tenant had been a border for many years but unfortunately her Landlady had terminal cancer therefore she needed move out. She was given a sheltered flat but she had no furniture of her own. She did not move into the flat for two weeks, the time it took for her for buy the necessities. She was also caring for her landlady who sadly passed away within the second week of not moving. HB would not pay from the start of the tenancy. (This tenant did not apply for a social fund loan)

HB is now checking on all of our new sign ups, I believe they are not checking any other association.

Are they correct in their interpretation of occupying a home? In all cases the tenants have moved in within a week or two.

I am aware about the over 60 and a child under 6 and receiving a disability premium applying for a social fund payment rule.

Thanks for your help

Based on the info given, my view is that the LA is correct. If furniture had been moved in (assuming this wasn't just a token gesture), the outcome may well have been different - it would depend on the facts in each case.

Also, in cases where HB is being claimed on TWO homes and there is a delay in moving to the new home, HB will only be payable if the delay was directly due to a waiting for adaptations (for disablement needs) to be made to the dwelling (and the delay was reasonable etc).

Regards

I agree with Kevin (again - zzzzzzz! - lol). The interesting question is why are they targeting your association only?

Thanks Kevin, I read in my HB & CTB guide about occupying as a home. I was hoping that since he did not have a previous home the new tenancy would, all be it, not slept in, considered as occupied for benefit purpose.

Like many Housing Associations, tenants often get a little more than a weeks notice when being offered a tenancy. How in that time are they expected to get together furnishings, many of new tenants can be vulnerable, often having been homeless for months and months. If benefit does not start when their tenancy starts they have to play catch up, which is as good as impossible when they only have their JSA to live off! Maintaining a tenancy when your only income is 59.15 weekly is difficult enough without having to pay off rent arrears.

How do other associations get round this?


Nevip, not sure why they would only target my association, the manager tells me its because we have an agreement that new tenants will have HB assessed the week they sign their tenancy, but in a past life I was an HB assessor and no agreement was in place and my association were checking on them then. Apart from this we have a good & improving working relationship

How do other associations get round this?

Erm, this post won't make for entirely comfortable reading.....

It is, unfortunately, not unknown for some L/Ls (be they RSLs or otherwise) to imply, or even state outright, that a clmt has occupied the dwelling from the start of the tenancy when, in fact, it is simply not true. Some LA Housing Depts do exactly the same.

Much as it is tempting to put this down to "assumption" or "oversight" by the L/L (or LA Housing Dept), my experience is that it is often in the full knowledge that HB is affected. I have even known of instances where tenants have subsequently admitted that they were told to put down the date of occupancy as being the same as the tenancy start date (knowing this to be untrue and knowing this to be specifically related to HB).

So, while it is a bit odd that it is (apparently) only cases involving your HA that are being scrutinised so closely, the general idea of an LA checking / double checking the occupancy date isn't that surprising to me.

Regards

Yes, unfortunately the practice is not isolated either. I have first hand evidence of it also.

Hi Kevin

I’m sure that’s the case with some L/Ls , but I know that this is not happening in the cases I refer to.

If this is the reason LA’s act like this, it strikes me it’s a case of guilty until proven innocent.

Again I raise the question, how is a homeless person supposed to purchase furnishings for a property when they little more than a weeks notice. And if they do not have another address why is not just accepted that the new tenancy is their only occupancy?

"how is a homeless person supposed to purchase furnishings for a property when they little more than a weeks notice. And if they do not have another address why is not just accepted that the new tenancy is their only occupancy?"

It's harsh, but simple. HB entitlement is dependant upon occupancy. HB law distinguishes between occupancy and liability. So, in the situation given in the original post, although the clmt clearly has a liability, s/he equally clearly hasn't occupied the dwelling.

If the argument being suggested is along the lines of "...the clmt doesn't have a peramanent address elsewhere, therefore the new "tenancy" must be the permanent address which s/he occupies....", my sincere view is that this argument fails.

s.130 of the SSBCA 1992 and HBR 7 respectively require that the clmt must occupy (or be deemed as occupying) the dwelling in question. In the scenario stated, this hasn't happened. At first glance, HBR 7(2) *appears* to provide a glimmer of hope ("....regard shall be had to any other dwelling occupied by that person..."). Cue argument: "...as the clmt doesn't "occupy" another dwelling, s/he MUST therefore occupy the new dwelling....". The snag is, this doesn't get over the fundamental problem: the clmt doesn't, in fact, actually occupy the new dwelling and none of the deeming provisions apply. LAs have no discretion in these circumstances, so have no alternative but to refuse HB.

Hope the above helps to explain, even if it still doesn't offer an answer you're looking for.

Thanks for this Kevin. It just does not seem fair! I don’t know how people are expected to live off JSA and clear rent arrears…

Unfortunately in my world everyone holds hands and skip happily through the bluebells…

Not sure if this helps but we had a decision over turned a few years ago when the rep successfully argued that the claimant's centre of existence was the dwelling she had yet to move into. The circumstances were slightly different, however the chair accepted that the claimant although not sleeping in the property was occupying it as much as she reasonably could.

The appellant stated that she spent most days in the property, cleaning/decorating etc, kept most of her personal belongings and was continuing to add to them daily and had registered with GP etc

The only thing preventing sleeping in the dwelling was that her mother had temp custody of her child so she had to return to her mother's house each night with her baby son.

Can similar thinking be applied to your clients?

In CH/1786/2005, Cmmr Howell found that a "centre of interest" did not, in itself, amount to "normally occupied".

Kevin is essentially correct regarding the “centre of interest” test. That is a European Community Law concept and should not be imported wholesale into domestic legislation although it has its place, most notably in habitual residence cases.

“Normally occupies” will be a question of fact in all cases. A person who spends large parts of his time in dwelling A, sleeping there very night while merely visiting dwelling B for 30 minutes each day to take a look around will probably be said to normally occupy dwelling A. A reasonable decision in my view.

However, a determination that the claimant occupies the dwelling she is currently not sleeping in (in Abrady’s example) may be entirely reasonable also. Each case will turn on its own facts and what is considered reasonable in the light of all the circumstances. If you can construct an argument then go for it. If you can’t, then you can’t. You can’t win them all but you can keep trying.

How does the HB dept know that the tnt has not moved in...?

Surely they do not know (unless the tnt tells them on the form) that they have no furniture and therefore will be moving in within two weeks..

On another point - could you apply for DHP's for the shortfall...? Especially if the tnt is vulnerable in some way..

No to DHP, HB should be in payment for DHP to be considered and if HB was in payment DHP would not be needed.

"How does the HB dept know that the tnt has not moved in...?

Surely they do not know (unless the tnt tells them on the form) that they have no furniture and therefore will be moving in within two weeks.."

There are several potential "giveaways". Just a flavour:

1) "I didn't received your letter asking for more info". When asked about postal problems: "Well, I haven't really moved in yet...."

2) The date(s) given to CTAX are different.

3) Date(s) given to DWP are different.

4) The date of moving in on the claim form is accompanied by a comment that casts doubt on the date given.

5) LAs make enquiries as a matter of procedure.

There are several other "tells" which, for obvious reasons, have not been listed. And, stating the obvious, clmts & L/Ls should not in any case be providing information that is untrue.

For the avoidance of doubt, I wouldn't hesitate to criticise the LA if it was acting unreasonably; but that doesn't appear to be the case on this occasion.

I broadly agree with ABrady about DHP. However, DHP is an option where a clmt is already on HB at his/her previous address.

Occupation as a home is a matter of fact and degree. In CH/2957/2004, the claimant was in hospital when her relatives moved her furniture in, although at that point she had never actually lived at the property herself.

Mr Deputy Commissioner Mark held that in the circumstances she occupied the property as her home at the time her relatives moved her belongings in.

On the other hand Ms Commisioner Fellner held in CH/2521/2002 that a person who moved materials in and began decorating was not occupying the property as his home, although in that case the claimant eventuially gave up the tenancy withoutsetting up home in the full sense He was trying to have it both ways, he had tried to avoid paying coucil tax by stating that the property was empty and devoid of furniture.

The LA send a visiting officer within the first three days of the tenancy start date to check for occupancy, Normal practise

Would be okay for DHP however, no former claim or tenancy as tenant in this case was homeless and had been sleeping rent free on a freinds sofa.