My client vacated her council flat and moved into (private) sheltered housing within the same borough. Although she gave the correct notice and returned the keys on the day she moved out, the council are charging her rent for 6 extra days because they say she left items in the flat which the council had to pay to have removed.

Housing benefit have also paid the council for the extra 6 days, which has meant that she has not received any housing benefit for the first 6 days of the new tenancy. Housing benefit are considering a claim for two homes.

So it seems to me that the council have used housing benefit money to meet the cost of clearing out the old flat. How can this be correct - is there anyway of arguing that the council have been overpaid and that housing benefit should pay from the start of the tenancy?

The Act provides that someone is entitled to HB in respect of the dwelling he occupies as his home (S130 SSCBA)

The Council will therefore be wrong if they deny HB in respct of the new home, unless it acts under any of the deeming provisons in the Regulations

The change of circumstances must take effect on the in whihch the change occurrs (Reg 79(2)2006 Regs)

The Council cannot consider a claim for 2 homes because no such claim is required, but it must determine the dates and the effect of the changes in circumstances (including whether then person is to be treated as occupying both homes under any of the provisisions of what is now HB Reg 7)

That determination should ideally have been made from the outset, but in any case it should only relate to the payment of HB regarding the previous laibility, not the new liability as there can be no question hanging over the matter of entitlement in respect of it because the primary legislation makes that clear.

Your only real problem is the question of overpaid benefit in respect of the old address because it could argue that it can offset the overpayment against ongoing benefit (Reg 7(3) Housing Benefit and Council Tax Benefit (General) Amendment Regs 2005

I have reproduced it here:

(3) After paragraph (1), there shall be inserted the following paragraph—
“(1A) Where—
(a) a claimant has moved into a dwelling which he occupies as his home;
(b) a recoverable overpayment of housing benefit is thereafter made direct to him in connection with the dwelling he occupied as his home immediately preceding the date he moved to that dwelling; and
(c) the same relevant authority which made the recoverable overpayment is paying housing benefit to that claimant in respect of that new dwelling, the relevant authority may at its discretion deduct from the housing benefit it is paying to the claimant in respect of a benefit week an amount equal to the claimant’s weekly
entitlement to housing benefit at his new dwelling, and may do so for the number of benefit weeks equal to the number of weeks during which the claimant was overpaid housing benefit.”.

If the Council do try that argument you can simply counter by arguing that a rent rebate was not paid direct to the claimant but to his rent account.

As ever withn overpaynments, they should be appealed immediately and the Council asked to suspend recovery action while the appeal is pending. Trouble is in this case that the Council seem to have jumped the gun and recovered the overpayment before making a proper decision. A clear case of maladministration in my book