Have a client, one of a couple renting house privately. Just awarded LHA based on one bed need. Due to wife's health problems need 2 bedrooms. The LA says that under LHA can only pay at 1 bedroom rate. This may well be true but I am hoping it can be challenged. Anybody got any ideas on this point?

Hi,

I have had the same problem with a client of mine.

From what I can ascertain the LHA rate is based on the composition of the household and does not take into account any medical conditions etc. In the case of a couple, if no-one else is living in the property, the LHA will be the one bedroom rate.

Have you thought about applying for DHP's in this instance? I did with my clients and DHP was awarded - it's not an ideal solution as there is no guarantee of award and it will only be awarded for a fixed period but it's probably worth a go, particularly if you can back up your request with medical evidence.

Regards

John

Yes, we've had a case raised with us with similar circumstances of a single student requiring a spare room for his carer to stay, and falling foul of the inflexibility of LHA. The response from DWP was indeed to consider DHPs, which is far from being an ideal solution for the reasons noted above.

We have written to Stephen Timms about the issue and are awaiting a reply, as this flies completely in the face of the Government's recently published Independent Living Strategy, with its grand promises of greater autonomy for disabled people in relation to housing amongst other things. Clearly, that part of the Strategy only applies to those disabled people who don't need to claim benefits.

So i would encourage you to write to Mr Timms with the details of your respective cases, highlighting this unfairness and hopefully, we may see the situation improve over time.

Is it not possible, in some circumstances, for the live in carer to be seen as part of the "household", albeit a non-dep subject to a NDD? I am thinking particularly if the live in carer had no other address and this was seen as their permanent address.

This doesn't help with the original query, about the couple.

Is it not possible, in some circumstances, for the live in carer to be seen as part of the "household", albeit a non-dep subject to a NDD? I am thinking particularly if the live in carer had no other address and this was seen as their permanent address.

If the carer's normal home is GENUINELY at the same dwelling occupied by the person being cared for, no problem. The carer, under those specific circumstances, would rightly count as an occupier. But, before WROs stampede their LAs with wonderful techie arguments that the carer is an occupier, there is a note of caution that needs serious consideration....

On the face of it, great, the carer counts as an occupier and the LHA rate is increased accordingly. HOWEVER, there are some potential pitfalls. for example:

1) non-dep deduction (unless DLA or AA is in payment to the clmt)

2) If DLA or AA is in payment, there would be no non-dep deduction. BUT, the clmt would lose any Severe Disability Premium that would otherwise be in payment. In the case of a couple, that could be two lots of SDP.

3) what happens if the carer should be treated as a joint occupier, not a non-dep? Could well be the shared rate that is then engaged.

I'm not trying to be a jonah; simply pointing out that this is not as straightforward as some would seem to think.....

I agree with Kevin D up to a point, and I know he's has seen my "techie " argument on this point in another place (I mean hbinfo not the house of lords!!!) but I will reproduce all of it here

The definition of "occupier "in the 1997 Rent Officers (Housing Benefit Functions) Order was not amended by the 2007 order. The definition remains:
"a person (whether or not identified by name) who is stated, in the application for the determination, to occupy the dwelling as his home;"

The person does not have to be identified by name but must of course occupy the dwelling as his home.

It is arguable that the judgement of the Court of Appeal in R v Swale BC ex p Marchant 9 Nov 1999 applies only to the children of the claimant who are members of another person's household elsewhere. It may not apply to live in carers. The Court was silent on that broader issue.

An occupier for the purposes of the Rent Officers order must encompass more than members of the claimants household otherwise non dependants who are by definition not members of the claimants household (HB Reg 3 and Reg 21) could not be included.

The exclusion of children who are not members of the claimants household from being included as occupiers stems from what is now Regulation 7(1) and this was confirmed by the Court of Appeal in Marchant.

It is arguable that the word "person" in what is now Reg 7(1) refers only to the claimant and his household as defined in Reg 21. It does not refer to non dependants or other ocupiers for the purposes of the Rent Officers order. This stems from the fact that Reg 7 as a whole prescibes the circumstances under which a person is deemed to occupy his home for the purposes of the primary legislation ie S130 of the SSCBA 1992. Reg 7 has no other purpose.

As a matter of fact, a person can occupy any number of dwellings as his home. The rich and famous are known to have homes all over the place, but to bring matters back to housing benefit claimants, its possible for the decision maker to make determination of fact that at least for part of every week some (not necessarily identified) person other than the claimant and her partner must have occupied the claimants dwelling as their home, and so should be included as an occupier in the application to the rent officer for a determination

If the question of the SDP or non dep deductions should arise, a non dep is defined in Reg 3as :

"any person, except someone to whom paragraph (2) applies, who normally resides with a claimant or with whom a claimant normally resides"

Contrast this with the definition of "occupier" in the Rent Officers order. "Occupier" far more loosely defined. The Regs are as ever badly written, but its possible to reconcile the notion of someone whteher identified or not, being included as an occupier, but not being a non dependant given the definiton of a non dependant in Reg 3.


Reg 74(7) also suggests that a non dependant may have more then one home
"(7) No deduction shall be made in respect of a non-dependant
if–
(a) although he resides with the claimant, it appears to the appropriate authority that his normal home is elsewhere;"

Note that Reg 74(7) only refers to the non dependant residing with the claimant (not "normally residing"). Quite how a person can be a non dependant in any case if their normal home is elsewhere (given the definition of a non dep in Reg 3) is beyond me, but Reg 74(7) does add to the argument that Reg 7(1) can only refer to the claimant and her/his partner and their children