Could you all help me with this rather large problem!
We have had a woman with two children under 6yrs who moved from our supported accommodation to her own tenancy. She put a claim in at the new address but had to wait for a Social Fund Payment to furnish it before moving in.
We applied for a HB overlap based on reg.5(6)as she needed the Social Fund payment.
Our HB office has now declined that overlap based on the fact that she didn't qualify based on reg 5(5) - that she didn't 'move in'.
I have spoken to the manager who made the decision to argue that reg.5(6) takes precedence as she 'can't' move in and this is why we have the reg.
We have not had any problems before but the HB manager is adamant that the lady doesn't qualify. Obviously this would have a massive impact for all our residents who move on and would have qualified for HB on two homes based on re.5(6)(c).
Can anyone confirm that I have it right or have things changed???

Hmm, we have paid under those circumstances in my Authority, but when I look at Reg 5.(5)(e)(i) this does actually appear to limit this combination of occupying two homes and occupation before moving in, only to circumstances where the delay was due to the need to adapt the dwelling of the home.

It is the specific reference to 5(6)(C)(i) which appears to impose this limit.

J Membery is right. The effect of 5(5)(e)(i) is limited by the reference to 5(6)(c)(i). Of the three "payment before occupation" scenarios, only the first (adaptation) can be combined with liability to pay on two homes.

Quite why it should be so limited is anybody's guess.

As an appeals officer I have come across many cases that have been caught out by this rule. Unfortunately they are normally single parents who need to await a CCG before they can move in to a property from furnished temporary accommodation(most of them have been fleeing violence). We have attempted to pursuade the organisation (they are mainly tenants of one project) to try to get them to source furnished accommodation but they are reluctant to do so since most of the social landlords around our area only provide unfurnished properties so they would need to look at the private rental market where rents are higher and the tenancy not as secure.

The only solution I can suggest is that you apply for a Discretionary Housing Payment to cover the rent at the property where HB is not in payment. We have done this a few times but you must remember that even if an award is made in this case they may not be made to future applicants.

I just can't believe this is the case!
The legislation appears to be there for people (over 60yrs, mothers with children under 6yrs) who need their tenancy furnishing before they move in. It appears to me that this reg is specifically there to help such people.
If the case I have outlined doesn't qualify, then who/how exactly does someone qualify for HB on two homes when they are awaiting a Social Fund Payment?
Our Authority was paying such claims, yet now they are not - just like that!
If we were to appeal, what would be the outcome, as it sounds like it is a non starter now?

PS - thanks for the replies so far guys.

Don't want to put a downer on your day but I would quantify your chances on appeal as nil. My Authority has taken quite alot of these cases to tribunals and we haven't lost one yet. There are a few Commissioners decisions that cover this area:

CH/2201/2002
CH/2048/2003
CH/3296/2003

All of these support the position of the Local Authority. It appears that they have been incorrectly applying the regulations for a while and now they have realised it. It looks like you may have to try and rely on the DHP budget, have your clients start their new tenancies in arrears, try to get the Landlords to waive the rent whilst waiting for a Social Fund Payment or look at sourcing furnished properties. If you would like some advice on how to approach the DHP application you can give me a call our switchboard number is 01274 431000 and ask to be put through to the Appeals Team in the Benefits Unit.

Thanks for your reply Tony.
The nil chance at an appeal wasn't what I wanted to read, but at least I know!
I still find it very hard to accept that a regulation that looks like it was put in for a good reason - to help the vulnerable - doesn't actually do that. (Yes I know I sound naieve)
It is even more difficult to take when the LA suddenly changes how they interpret such regs.(a case of all good things come to an end?!)
We will indeed go down the DHP line as the only suitable accommodation is unfurnished lets with HAs which we work really hard to get in the first place.

Now where's my flak jacket and tin helmet as I have to go and tell our workers the news!!!!

Once again, thanks for your advice and help.

It is strange that this reg has caused so much confusion over the years. One is specifically a "two homes" reg and the other is dealing with situations where the customer is a non-householder and not liable for rent (but cannot move in for a particular reason). I also can remember plenty of complains from social landlords / voluntary sector about other LA's (wrongly) making such dual payments where a "social fund" application was being made.

In one appeal case, solicitors for the customer argued that "adaptions" should be viewed in a very wide sense to include the installation of a (e.g. fridge) thus bringing almost all within the "disability" requirement. But this was rejected by a Tribunal and not followed through to Commissioners.

I am not entirely convinced that a DHP should be made to cover the second rent in circumstances where the basic HB regs preclude payment although I appreciate a strong policy argument can be made for it to do so.

After losing an appeal on this issue last year, I wrote to the secretary of state enclosing numerous commissioners decisions (including the one where the Commissioner says that parliament should look at this rule) asking when he plans to change this rule.

His reply was that there are no plans to change this rule as social fund loans and DHP's are already available to cover this extra liability.

You are more than welcome. I know that I had a long discussion with the Manager of the organisation that we had to deal with and she was not impressed at all. Pointing out that there seemed to be no protection or consideration for her clients. Its not easy when you have to tell someone that your job is to apply the regulations and no matter how sympathetic you might be you don't make the rules yourself.

The offer of assistance still stands, the appeals team in Bradford deals with initial applications, appeals and then represents the Authority at hearings before a panel of Councillors. I obviously can't guarantee I have a magic bullet but you may need to first persuade them that they can pay DHP on a property for which no HB payment is being made.

Hi Lloyd,

applying for a discretionary housing payment is the way to go. There is some very useful information in a similar thread on the HBinfo.org site DHP discussion forum, including an extract from a letter from DWP at Adelphi confirming DHP can be paid in these circumstances. This is the link to the thread but you'll probably have to register yourself on the HBinfo.org site to get it to work

http://hbinfo.org/forum/viewtopic.php?t=1311

..jim

I have to agree that there is no entitlement to a payment in this situation- see my guide Housing Benefit for Housing Managers section 7 of any edition issued over the last couple of years. Like everybody else, I've been lobbying on this one, but the government response has been that landlords are being greedy by expecting tenants to take up a tenancy without allowing a reasonable time between the offer and the start date. I have some sympathy with this view. It does seem unreasonable to ask someone to make such a major change at such short notice.

I have had some success with ombudsman complaints against the DWP where the social fund application has not been dealt with promptly, leading to delays. This can be a way of getting some of the arrears covered.

Incidently, I also get a lot of the opposite problem, where councils "decide" that the tenant has moved in to the new home and stop paying on the old one, even though the tenant is still living there. I notice that this is more common where the council is the new landlord.

I don't think it is just the private landlords insisting on tenancies being agreed on the date of the offer.

The gentleman I repped an appeal for had been notice to leave his lodging by his private landlord and the Local Authority offered him a tenancy on the basis that he signed for it straight away, knowing that he couldn't move in until he'd got furniture. (They also promised him housing benefit on both tenancies until he could move, but that's another story).

Fortunately his landlord allowed him to stay until he'd got the CCG and some furniture.

I know from my experience on Appeals here in Bradford that it is not just Private Landlords who are insisting on people signing immediately - Social Landlords are some of the worst offenders for this.

I even know of a case of a Social Landlord moving one of their tenants from one property to another they owned and trying to insist on the four weeks notice on the old property.

I have a lot of sympathy for people in this situation, I do wonder however why more Social Landlords do not offer furnished tenancy's. I also understand the argument for wanting to place people into Local Authority owned or Social Housing because of the security of tenure however not all private landlords are greedy and just waiting for the chance to chuck out their tenants. Instead wanting to find good tenants who want to remain in their property for sometime in order to provide a steady income. I know that there are Local Authority's who sepnd their entire DHP budget and more and would not perhaps look favourably on such claims particularly where they seem to be emanating from nearly every tenant of a particular organisation.

I know from my own experience that local authorities are just as bad - does Bradgord give new tenants 4 weeks to move in?

Bradford no longer has any Council houses as these were passed over to Community Housing Trusts which are entirely seperate from the Local Authority ( they are not merely arms length management organisations ). I am actually unaware of a case whereby a tenant requested that their tenancy started at a later date as they were waiting for a CCG application and the sourcing of furniture - but then I have never worked in the Housing Department so I imagine there were I just don't know the outcome.

I am not being especially critical of everyone else and arguing that Local Authority's are great. My point was if organisations are providing housing with a social remit ( and that includes Councils ) why is there not more flexibility considering that the people with whom they deal are often some of the most disadvantaged in society?

Have a look at Ch 2957 2004 on the commissioners website, it should put the cat amongst the pigeons !

Now that really is interesting! (How sad am I to think that?) I imagine councils would say that the difference was that in this case the tenant was in hospital, which was the only other place that might be considered to be the tenant's home, but in most cases the claimant will also be occupying the old home and, since the regulations require that regard has to be had to any other home the claimant has, the claimant should be treated as occupying the old one rather than the new one (otherwise after four weeks benefit is no longer payable on the old home, which the tenant may still be occupying) Good for people coming out of institutions though!

What do other people think?

Sheeeeeeeesh!!

I'll need to have another read of CH/2957/2004; but after 2 reads it strikes me that it leaves Reg 5 in a bit of a mess.

Although, this probably shouldn't be the slightest bit surprising in the wake of some of the past year's CDs rendering HB/CTB legislation to be pretty much impotent (e.g CH/2155/2003 & CH/2111/2003 just for appetisers).

Wonder if the LA will appeal? Wonder if the DWP will ever succeed in drafting legislation that actually has the effect of meaning both what it says AND what it intends..... Ok, that second bit was just for a bit of a laugh......

Regards

..As a matter of interest re: the remark about why landlords don't have furnished premises available; We own over 450 properties throughout the country (intended for the housing of our blind/disabled/elderly beneficiaries) but if we have no immeidate use when a tenancy comes to an end, we rent privately - but always unfurnished! European regulations are now so complex and loaded against the landlord that we dare not supply anything. White goods need to be maintained and replaced, furniture and furnishings have to comply with a million regulations etc; - we are, after all, a Charity and just cannot afford it. I suspect many private landlords feel the same.

Letting unfurnished moves the reponsibility for any accidents caused by faulty goods/furnishings to the tenant.

Have you tried to give a suite away lately?

Sorry to resurrect this thread, but would appreciate any suggestions regarding client in similar position- 2 week delay in moving in- Reg 5 didn't apply anyway in her case as did not meet criteria (youngest child over 5, no disability issues). Applied for DHP but LA has refused on basis that client had no entitlement to HB on property (not living there during relevant period)therefore DHP not applicable. Can anyone see any grounds to challenge?-

dear 1964, this is extract from a letter from DWP at Adelphi , as posted by a LA person on the HBinfo site

“Thank you for your e-mail about making a DHP to meet a liability on a second home for which HB is not payable.

As you will be aware, although the Department for Work and Pensions has overall responsibility for the scope and structure of the Housing Benefit (HB) and Council Tax Benefit (CTB) schemes, local authorities have full statutory responsibility for their day-to-day administration. This Department cannot give an authoritative interpretation of the regulations; that is a matter for authorities to decide subject to any court ruling and depending on the circumstances of each individual case. I hope, however,
that you find the following comments helpful.

Having considered the matter further our advice, courtesy of DWP lawyers, is that a DHP can be made as the requirement in regulation 4 of the Discretionary Financial Assistance Regulations 2001 concerning the need for further financial assistance to arise as a consequence of the liability to make periodical payments in respect of the dwelling which the claimant occupies as her home, is met and the immediate situation is not one excluded under regulation 3 of those regulations.

Regulation 4 of the Discretionary Financial Assistance Regulations 2001 Titled " Limit on the amount of the discretionary housing payment that may be made" provides the process for working out how much a DHP can be. It does not provide whether a DHP can be made or not. This is done under regulation 3 titled "Circumstances in which discretionary housing payments may be made".

Thanks- that's really useful.