Hi,

I have a client considering moving into privately rented accommodation. They have care needs and at the moment a carer stays with them overnight on an informal basis on 3-4 nights per week, although this is likely to increase in the future. No one claims carer's allowance for caring for the client. Do they have an argument that they should classed as being entitled to the 2 bedroom rate of LHA? Am reference to the appropriate regulations or guidance would be much appreciated.

The DWP's position is that carer's do not count as occupiers for LHA purposes. I happen to agree with that view. However, many people think an argument can be made that carer's can count as occupiers, even if they have a main home elsewhere. In short, there is nothing definitive on this. Er, yet. Sooner or later, this is bound to be challenged and settled once and for all. Until the DWP clarifies, or changes, the law......

We have taken this issue up with Ministers at DWP as we are becoming aware of a number of cases whereby disabled people requiring overnight stays from carers are having their benefit reduced down to a level that only recognises the appropriate amount of bedrooms for the disabled person, and makes no allowance for the "extra" bedroom.

To date, we have met with no success but it is an issue that we would like to pursue, so if you could send me details of your case, I would happily include these along with others to demonstrate the problems caused by the inflexibility of LHA.

This approach is particularly galling when the latest White Paper makes such a big deal about giving choice and independence to disabled people - I spoke with a woman this morning whose son faces a £60 per week shortfall in his rent, having previously had his full rent met under HB - the result of this is a risk that he may have to move into residential care instead, a quite ludicrous outcome but a distinct possibility.

As far as we can see, there is no way to challenge the legality of the relevant regs but I would love to see a test case taken on this issue if anyone thinks its a possibility.

The client is due to be contacting me again in the next few days so I'll bring your reply to their attention and hopefully start to make some progress on this issue. Many thanks

Fri 09-Jan-09 09:53 AM by jmembery

The rules on occupiers under LHA are no different than was the case under Rent Allowance so I don’t think the reason for the new £60.00 shortfall can be due to the size criteria alone.

Saying that, I am still a bit surprised this issue has not made Comms/2nd Tier yet.

This is what the DWP stated in their reply in respect of the number of occupiers - so on what grounds previously were disabled people in this situation receiving full HB do you think?

As I stated above, we have been contacted by various people who have experienced reductions in their amounts of benefit since LHA was introduced and I am perplexed about what is fundamentally different therefore. Is it the case that the rent office determinations would allow for higher payments perhaps?

Any advice would be greatly appreciated.

Fri 09-Jan-09 12:01 PM by pete c

I would like to raise a cautionary note here, if a carer or series of carers were counted as occupants might this not affect the claimants right to the SDP, it may be hard to argue that the carer is part of the claimants household for HB purposes but that the claimant actually lives alone for IS/ESA.
They would appear to be mutually exclusive or have I missed something (it is Friday after all)