Does anyone know of any case-law or had any success with arguments that a couple, one of whom is disabled, should have a 2 bedroom size related determination as the disability of one means that each has to sleep in separate bedrooms.

Help desperately needed to assist couple who may face eviction otherwise. They are reluctant to rely solely on DHP's, as no guarantee that these will continue indefinitely.

Regards
Paul

Nevip:

I have tried for years to find a "loophole" for similar purposes. To date, the best I have achieved has depended entirely on the flexibility of the Rent Officer.

A minority of R/Os are (relatively) happy to accept requests for valuations taking into account an extra room in circumstances such as those you describe. Unfortunately, I have yet to see any legal basis for this and I think the R/Os who reject such requests are, legally, correct.

If you (or anyone else) manage to unearth something, I'd be delighted to hear of it.

As an idle thought, any mileage in HRA? Basis being that the provision discrimnates against disabled ppl. Hmmm... even as I'm typing this, I'm less than convinced....

Regards

Thanks Kevin. I had a feeling that it would be at the mercy of the RO's discretion.

To be honest I'd not thought of the HRA challenge. Very first thing of a monday morning is not my ideal time. Will give it some deep thought though.

May be an argument based on respect for family life. Using that to engage article 14 may provide the foundation of a half credible argument.

Regards
Paul

We all come across this, and other issues concerning the RO service - the most frequent being their assessments of supposedly rent figures that bear little relationship to the real world of actual market place rents - rents in East Anglia have gone up markedly in the past 18 months in line with House prices - the RO assessments are often £50 or more per month less than the asking figure - even where it is glaringly obvious from evidence from Estate agents, local newspapers etc of what rents are.

Does anyone have any knowledge of how we can get to talk to the RO Service at least at a regional level - do they have the equivalent of a customer services manager for example - they seem to be the only agency with with we have little or no contact with.

The other issue is of course their appeals procedure - as I understand it a claimant has the right of appeal, but no right of audience?

Hello,

Is anyone aware of any recent changes on this position?

My client is also disabled, and has evidence from his doctor to support that he requires separate bedroom from his wife.

Rent officer will not consider, and assessed only on one bedroom. (DHP in payment)

Regards,

Thuy

I understand CPAG are looking right now to take a test case to challenge the rent officers order on this very issue.

Your clients could be suitable candidates

I R on the Application of Cumpsty v Rent Officer Service QBD 8 Nov 02 the judege said at para 85:

"85. At the determination stage the tenant or prospective tenant has little or no interest in the way in which the rent officer will proceed, only in the outcome. If the housing benefit award is, as a result, too low to meet the rent he will have to pay, then he will be interested to know why the rent officer determined the Local Reference Rent he did. The stage at which the claimant needs the information on which to judge the merits is consideration of
an application for redetermination. Provided that he is supplied with reasons sufficiently detailed to make that judgment the process meets, it seems to me, the requirements of fairness."

It can be argued that Rent Officers have a duty to be transparent and give adequate details of the market data they are using

Now that the Rent Service is part of the DWP, their longstanding practice of not revealing how they value rents may also be challengeable via the Parliamentary Ombudsman? Freedom of Information Act may also be helpful.

When I was a benefits officer, we asked the rent officer to give us a determination for both 1 and 2 bedrooms. The case was then taken to the Principal Officer who could make a discretionary decision to pay for the two rooms rather than one.

We also had the option of 3 appeals - the tenant could appeal to the rent officer via our office firstly, if it then came back they could appeal again. If that then came back unsatisfactory the local authority could appeal giving their reasons as to why they felt it was incorrect. Generally the determinations were increased in these cases.

On their website CPAG are looking for test cases on this issues and they give a named contact for you to email. Link below:

http://www.cpag.org.uk/

With a size related determination the client loses out twice - firstly, the determination is reduced due to being over accommadated, and then further reduced because the it doesn't come anywhere near the market figure.

Our applicants can still appeal through their local HB department - the problem is of course that unlike any other type of appeal, they don't have the luxury of knowing exactly what they are appealing against - ie, the basis for the RO determination in the first place.

Merely stating in the appeal that the figure the RO has set bears no relationship to market rents is obviously not enough - particularly as he is supposed to have set it on the basis of what equivalent properties are charging in the locality.

In addtion of course, appeals necessarily take time - meanwhile Landlords want to see their rent being paidin full, here and now, not possibly, maybe, at some time in the future...........

Something needs to be sorted out in this area. I mean no disrespect to Rent Officers, but the opaque, unaccountable way in which they operate has always amazed me. What amazes me even more is that this state of affairs seems to be officially tolerated.

I think it is, generally speaking, a good thing that most agencies working in benefits nowadays have to be open, accountable and ready to fully explain the decisions that they have made. It seems an anachronism that this does not seem to apply to the Rent Service.

I have always wondered why an HRA challenge (right to fair hearing) has not materialised before.

As I say, no disrespect intended - I think the more enlightened ROs know this cannot go on...

Based on my experience over about 30 years, I think that the reason for the opaque nature of the rent officer decisions is that rent officers are desparate to cover up the fact that there is no particular science in valuing rents. This lack of open decison making is no new thing. Their very existence depends on the idea that there is a particular skill in making valuations.

Bear in mind that the very existence of rent officers is now in doubt, since they do almost no fair rent work and now, in local housing allowance areas, do not decide on individual cases. This is hardly enough to keep a whole profession in work.

I fear things may get more opaque rather than less!

Slightly off the subject I know but my authority is an LHA 'trailblazer'. We had a claim from a quadraplegic student who needs a carer 24/7, she has 3 I think on a rota. She has therefore had to rent a 2 bed acc. Under LHA she could only get the single room amount and has had to apply for DHP to help. But this is not really the best solution as DHP is only temporary and is really designed to cover any shortfall while new, cheaper acc is sought. Aldephi said that as the carers could not be classed as part of the 'household' there was nothing under the LHA rules that could help.
So we are giving away 1,000s and 1,000s of £££ every week over and above peoples actual rent but cannot help in any way in a case like this. Who comes up with these schemes ??!!!?!?!?

The Adelphi may have made noises about carers not being classed as party of the "household" but I am not sure that they are correct.

They may be relying on Swale and Marchant, but Marchant related to children who under Reg 15 can not be members of different households within the same benefit week.

Similarly, the rent officers order only allows one room for a single person or couple (who are by definition members of the same houshold), but there is nothing in the rent Officer's order, or in Marchant which forbids LA's from including live in carers as occupiers in the referral

Stainsby, can you give any further information about the meaning of 'household' for the purposes of RO determinations in your post, where you say that the inclusion of 'household' may not be the right approach?

I'm struggling with this issue for a client who is disabled and needs a 2nd bedroom for carers. But as she has carers that 'rotate' the authority are saying that no-one else lives there (etc) and so the RO determination is based one bedroom rent.

I've been sorting through the regs on this, but it is enormously difficult in both the procedure for initial RO determinations and challenges. Any help would be appreciated. This is as far as I've got:

In this case, the LA guided the RO to ignore the client's statement that she needs a second room for a carer. The appeal is against this point - the LA's refusal to allow a 2nd person in the referral.

Reg 12A sets out the procedure for referring rents to the RO. It also specifies what information must or must not be included, and this only relates to money (actual rent, in/eligible service charges, care charges, etc..

12B deals with redeterminations initiated by the LA

12CA deals with redeterminations after representations from client

12C deals with mistakes in referrals relating to the 'size of the dwelling', 'the number of occupiers', 'the composition of the household' and 'the terms of the tenancy'.

It's interests that the term 'occupiers' is used and the fact that the 'composition of the household' is mentioned seperately.

The questions on this point are thus: Apparently, the authority is not required to give this type of information to the RO but it can apply to correct errors relating to this information. Exactly how can we determine what information is either required to be given to, or required by, the RO? What is the meaning of 'occupier' for the purposes of RO determinations (bearing in mind that the first mention of this word? Is it for the authority or for the ROP to decide how many rooms someone needs?

non-dependants, households and resides (for the purposes of 'normally resides with' are all defined in some form or another in the regs, which to me indicates that 'occupies' is not intended to be restricted to these definitions. The former relate to specific people, but that latter refers to a state of being...

If we apply the word to the room and say that the room is occupied, then it seems much more favourable to the client. What do you think?

Has anyone thought any more about the HR arguments?

Anything else....?

In cases like this where the need is genuine and verifiable and, where the rent is not met but the consequences may be serious, would there be a potential JR challenge on Wednesbury unreasonableness?

Cheers all!

I agree with Tony B, an "occupier" must mean more than "household" etc.

Occupier is defined in S2 of the Rent Officer's (Housing Benefit Functions) Order 1997 as:

"..a person who (whether or not identified by name )who is stated in the application for determination to occupy the dwelling as his home"

In the nalysis to S2 of the order Findlay cites Potter LJ as confirming in Marchant that the decision as to whther or not a person is an occupier is one fo the LA, (not for the rent officer)

I have not seen the full Court of Appeal judgement, but the implication is that the determiantion as to the number of occupiers could be challenged at a Tribunal. You would of course have a Human Rights argument if the Tribunal rejected jurisdiction over the determination.

You do have a problem when you have multiple resident carers given the definition of an occupyer as being someone occupying the dwelling as his home and the LA would no doubt refer back to HB Regulation 5(1) and argue that the carer can not occupy the dwelling as his home if his normal home is elsewhere.

I would counter that argument by arguing that HB Reg 5 was made under S130 of the SSCBA and in so reference to "person" under Reg 5 means a claimant and members of his household as defined in HB Reg 15.

HB Reg 5 (1) restricts HB to payments in respect of the "dwelling normally occupied as his home"

The rent officers order is less restrictive and refers to the person who is stated to "occupy the dwelling as his home". That person does not have to be named

The decision in Marchant does not say very much about occupiers who are not part of the claimants household and I suggest that the issue as it relates to live in carers has not been tested.

This is very helpful, Stainsby. Thank you.

I've since found some information about the Marchant Judgement, which confirms that authority is correct in referring to reg 5(1) when deciding the meaning of an occupier. In essence, it confirms the position of the LA, so it looks like this is a hopeless case...

Size related ent ? All I know is they were much bigger in the book than in the film !!!!!

Many thanks to all who responded.

My Client's scenario is this.

Their landlord sold the property. They have an assured shorthold tenancy. Given the statutory 2 month notice to quit by new landlord, which gives them until december. A friend has shown an interest in buying, so that they can stay, but needs to increase the rent to cover the mortgage. Clients aware of potential Reg 7 issues.

Completed pre tenancy determination and rent officer sent them notification of size related rent for one bedroom, substantially short of what proposed new rent would be. HB have not sent notification of rent officer determination (so no automatic right of review) as no new claim for HB made as clients not yet legally liable for new rent.

Clients have asked HB for re-determination and supplied detailed letter from GP outlining need for 2 bedrooms. HB are refusing (lawfully, I think, as no HB determination made) to re-refer to rent officer. Have advised clients to ask HB to use their discretion to ask rent officer for re-determination. If HB refuse then I am advising judicial review against HB dep't and judicial review directly against the rent officer's dep't. Clients have contacted CPAG and are currently awaiting response.

Hi Folks,

I have a very similar case, my client is tetraplegic and will have SSD funded carers 24/7. These carers will have to be accommodated, including a bedroom. The LA have indicated that they would be more than happy to meet any shortfall from DHP's, but this will have to be a long term arrangement and I prefer not to rely on discretionary.

I am not hopeful after reading the above, but has there been any positive developments in this area for asking for a 2 bedroom determination????

thanks in advance

I have recently seen the full text of the COA's judgement. I dont think the COA said anything that would deal a fatal blow to the argument that live in carers can be included in the rent officer referral.

The COA merely confirmed that the effect of Regulation 14 and 15 of the 1987 Regulations excluded the child of a claimant for whom the claimants former spouse or partner was responsible from being included as an occupier