Hi,

We have a tenant who is currently in hospital but can no longer live at home so is awaiting a place at a residential home.He has given notice to terminate his tenancy and informed the HB section of this.Although he will be liable to pay rent for the four week notice period,the L.A have refused to pay as he does not intend to return home.He cannot avoid his liability to pay rent for the notice period so it seems unfair that he is being penalised by losing HB.
Any ideas?

Thanks,
Jeannette

This is tricky and, in my view, the LA are correct (although possibly not for the right reasons).

The only possiblity I can see is HBR 5(5A). This states:

(5A) Where–
(a) a person has moved into a dwelling for which he is not liable to make payments (“the new dwelling”); and
(b) immediately before that move, he was liable to make payments for the dwelling he previously occupied as his home (“the former dwelling”); and
(c) that liability continues after he has moved into the new dwelling,
he shall be treated as occupying the former dwelling as his home for a period not exceeding four benefit weeks if he could not reasonably have avoided liability in respect of that former dwelling.


At first glance it seems good for the situation your client is in; however, HB under this provision is dependant on the claimant moving into a new DWELLING. In my opinion, the hospital would not be regarded as a dwelling in the circumstances suggested in your post, so I'm not convinced HB will be payable. s.137 of the SSCBA 1992 defines dwelling and it MUST be residential in nature.

Regards

Check out Cmmr Meshers decision CH/2641/2003

HB to continue where liability exists up to end of notice period.

Mon 19-Sep-05 04:23 PM by ken

The circumstances are different.

In CH/2641/2003, the clmt moved into another "dwelling", not a hospital. Also, HBR 5(5)(d) applied as there was liability on 2-homes. Unless there is dual liability, none of the provisions of HBR 5(5) can apply.

In the case set out in the original post to this thread, there is (apparently) no dual liability. Therefore, the only possiblity is to pay under HBR 5(5A).

However, as suggested above, a hospital would not (normally) be regarded as a "dwelling" under s.137 of the SSCBA 1992.

For the above reasons, I don't agree that CH/2641/2003 is authority in this case.

Regards

Taken from DWP Circular A29/2004

Period of notice

We are aware that in some circumstances HB is not payable even though liability during the period of notice is unavoidable. This has led to problems for various groups of people who have moved unexpectedly to a new dwelling where they do not have a liability to make payments, have had to give up their tenancy on their home but still have a rent liability on that former home to cover the period of notice. For example such cases could be:

People in hospital, who initially expected to return home within 52 weeks but whose condition deteriorates and either their stay becomes permanent or they are discharged to a care home.

People suddenly taken into hospital on a permanent basis

Prisoners sentenced to a custodial term of more than 13 weeks

Regulations have been made to allow HB to be payable from 4 October 2004 for the period of notice of up to four weeks if the liability on the former home could not reasonably have been avoided, and the customer was otherwise entitled to HB for that period. In cases when the period of notice spans this date, benefit will only be payable from 4 October to the end of the 4th week from the first day of the notice period.

StAlbans:

Yes, I've seen that. Unfortunately, unless hospital is a "dwelling", I don't think the guidance is supported by HBR 5(5A) as it is currently worded.

Regards

I think CH 3893 2004 is relevant, though it does not assist your client!!

If someone who is in hospital has nowhere else to live, then surely the hospital is their "dwelling" - i.e. it is their place of residence. "Dwelling" is defined as "any residential accommodation", and a hospital can be residential accommodation.

Furthermore, to quote from the EXPLANATORY MEMORANDUM TO THE HOUSING BENEFIT AND COUNCIL TAX BENEFIT (MISCELLANEOUS AMENDMENTS) (No. 2) Regulations 2004:

"Regulation 2(3) amends regulation 5 of the Housing Benefit (General)
Regulations and is a measure that extends the existing provision that enables people who have moved into a new dwelling and have a liability to make payments in respect of that dwelling, and could not reasonably have avoided a liability to make payments in respect of the former dwelling, ie, to give and serve a period of notice, to be treated as occupying the former dwelling as their home for up to a maximum period of four weeks. The amending regulation extends this provision to those in similar circumstances but who do
not have a liability in respect of the new dwelling thus ensuring that this group also do not build up rent arrears where their continuing liability was unavoidable."

Given the clear policy intention, as outlined in the Circular and in the Explanatory Memorandum, I would argue very strongly that, having given up his tenancy, his residence in now in hospital, and Reg 5(5A) should apply.

Hi Bob,

Just to explore further.....

I can see an argument where it *may* be possible (just) to describe a hospital as residential in exceptional circumstances (e.g. an in-patient in a psychiatric unit).

However, I've had a look at CH/2957/2004 (occupancy - the "furniture" case). From the outset, it's fair to acknowledge that this CD wasn't looking DIRECTLY as whether hospital was a dwelling. However, the wording in para 10 of that CD seems to suggest that the Commissioner did not consider hospital to be a dwelling.

Any CDs that suggest otherwise, even indirectly?

Regards