I can't my head around this...

Two brothers are joint tenants. One is working and not entitled to benefits but other is smi. We haven't yet applied for council tax exempton but have now got him HB and CTB for his share of the rent and c.tax (doesn't get full benefit as on IB).

We haven't applied for exemption as I can't suss how or whether he'd be better off applying for this. In my mind if we apply and he is exempt then he is not jointly liable with his able brother so he wouldn't be entitled to CTB in that situation.

If this is right and we apply for exemption would they then say he's been overpaid CTB as he wasn't liable?

Additionally if he was exempt wouldn't it then put more of a financial burden on the able brother as the exemption would only mean a 25% discount which he'd have to pay in full?

In this situation a 25% discount would be due on the CT for the property as the SMI brother can be ignored for the purposes of determining how many people live in the property. But this only applies for the purposes of the discount. Both brothers are jointly liable for the 75% of the tax which remains due.

For CTB purposes this liability is divided between them and they can each apply for CTB on the basis of their 'share', even though the council could pursue either or both of them for the whole amount under the rules of joint and several liability. It is not correct (or at any rate a bit of an oversimplification) to say that anyone is "exempt" in this scenario.

Given that one of the brothers is not eligible for CTB then getting the discount would help them as it is not means-tested, and in any case discounts, where due, should be awarded ahead of CTB.

If CTB is awarded and then a discount is awarded later, there is a theoretical ovepayment of CTB but this is balanced out from the discount so there is no practical event on the claimant.

Yes, it is complicated isn't it?

Thanks Andy, that makes it clearer. The LA had told me they'd be better off with the smi brother just claiming benefit on his half of the (full) council tax. I did look it up but couldn't really get a grip on it from resource material.

If one brother is SMI does he get DLA at appropriate rate to discount brother as carer as well.

The more I look into it the more confused I am.

Semitone, he's on DLA MRC and I assumed it had to be HRC. In any case wouldn't this just mean disregarded as a non dep for CTB? If yes, then this wouldn't be relevant anyway as they are joint tenants and so NDD not applicable. If this is not what you mean and there's something I don't know I'm not too proud to accept advice!!

Andy, can we go back to your post please...You said there'd be a 25% discount and then the smi brother would get benefit on his half of remaining share. I don't know whether I'm reading Zebedee correctly where it talks about apportionment for joint liability and says "...smi are not jointly liable for council tax so apportionment ignores them" (p143 2006/7 ed).

I take it to mean the smi brother is 'invisible' so his able brother is liable for the full amount less the 25% single adult discount.

So if we apply for smi exemption and he's then invisible then surely they'll say he has no entitlement to CTB as he's no liablity. If this is the case then this would leave his working brother to pay the lot less the 25%.

I really hope I'm wrong

I don't think you are wrong, at present they are jointly liable for Council Tax, if the smi disregard is applied then the non SMI brother becomes solely liable for 75% of the council tax. (Sect 6 of Local Govt Finance Act 1992)

2nd adult rebate would only reduce the non SMI brother's liability by a further 15% to 60% of the full Council Tax Bill

I apologise. I missed that point entirely. It is correct that a SMI person cannot be held jointly and severally liable. (For some reason I thought that only applied to students).

This leaves the non-SMI brother solely liable with a 25% discount.

The problem with second adult rebate is that the "second adult" here is a person who attracts a discount. That rules out second adult rebate as, generally, you can't get both.

Sorted. Sounds like we're all singing from same hymn sheet now. I'll leave well enough alone and stick with the benefits for the smi brother.

Many thanks

Sue

Hi sue. You're right about it having to be DLA HRC but didnt know from first post. Bit of bummer hes only getting MRC. You're right about joint tenants can't be classed as non deps but if the brother could have claimed as carer in addition to SMI for brother then full discount would have been 50%. Any possibility of HRC

Doubt it. Brill phrase that - "bit of a bummer" - it says everything that needs to be said. How would that translate into esperanto I wonder.

From what both brothers were saying he doesn't seem to have 24 hour needs. I'm always a bit cautious in case the MRC is reduced - not that this would ever happen - what with DM's being so reasonable and consistent!

He's only just got DLA since he and his brother came in about something else. Can you believe it - he's in his 50's and no-one had ever advised them about this. Makes you want to shout mucky words from the rooftops.

I still have two issues with this claim.

The LA won't backdate HB/CTB for smi brother as they say he doesn't have good cause for late claim as he's always had an appointee. I'm arguing he didn't have an official appointee for about three years between mum dying and brother taking over. Do you reckon this will go anywhere? (I have to look at sufficient benefit for LSC funding)

If we lose this and can't get it backdated I've been thinking - we're not applying for smi exemption now as they'll be worse off. However am I opening up a can of worms if we apply for the 25% for past years when exemption could have been applied? Importantly will LA allow this to be withdrawn the day before benefit was awarded?

Am i just clutching at straws and should I leave well enough alone?

"The LA won't backdate HB/CTB for smi brother as they say he doesn't have good cause for late claim as he's always had an appointee."

The following assumes there is no Power of Attorney (if there is, this post should be ignored).

By "appointee", does the LA mean an appointee accepted by the LA in accordance with HBR 82 (paras 3-5)?

If the "appointee" is not one made under HBR 82, the "appointee" is in fact NOT an appointee for HB/CTBR purposes.

In turn, if there is no appointee (for HB/CTB purposes), the LA cannot lawfully rely on the actions of a 3rd party in looking at "good cause" for backdating. The LA can only consider the actions of the claimant. This is confirmed in CH/1791/2004 & CH/1169/2006.

Regards

They've not yet said what they're relying on Kevin, apart from he's had an appointee. I've asked for a reconsideration so we'll see what they come up with. Thanks very much for the CD's. I think they might well come in very handy.

Surely if he doesn't currently have an appointee (any idea who they think it was?) then the fact he may have had one in the past is a red herring. It implies he can't claim for himself but in the absence of a properly appointed appointee there's no-one whose omissioms are going to be attributed to him. So he would have good cause for a late claim: otherwise it's the good cause of the appointee that has to be considered.

I'd be surprised if there was a power of attorney: it would imply he has had mental capcity to create one in the past. Though it is possible to create a power of attorney and still not have the capacity to run your own affairs. However appointees act instead of the incapacitated person and displace them while attorneys (unless registered enduring) don't - they act alongside.

There's no PoA and from what his brother says his mum was always his appointee until she died 3 years ago. Although the able brother has remained living with him he didn't become offical appointee until a couple of months ago. This is the recent argument I submitted. I can only assume the LA contend that even as an unoffical appointee he was the one who should have made the claim for him.

Just to confuse things even more, up to the mother dying 3 years ago, residing in the house were her and three adult sons. Soon after she died the house was put in the joint names of all three brothers. One of them (since deceased) made his own HB/CTB claim as he was on JSA. The LA now tell me he had no entitlement to benefit as he was not liable for rent or council tax. He didn't appeal. This adverse decision on the late brother's claim has been the only reason the remaining able brother simply assumed the smi brother would not be able to claim anything.

Hope that makes sense