Following my old posting on this subject, I am pleased to announce that our local councils have now accepted that HB is payable for up to 4 weeks after the stay in res care has been made permanent ( in effect the notice period). This is as a result of Commissioner Jacob's decision CH/4546/2002, in which he gives a detailed interpretation of reg 5(5)d and the effect of regulation 7 upon it.
The conclusion is that reg 7(1)(k) does not exclude the entitlement under reg 5(5)(d) due to an unavoidability liability on two dwellings, as the deeming provisions in reg 7 do not apply outside of that regulation unless they are expressly incorporated.
This principle of legislative intent is also covered in C of A case, Naghsbandi v LB Camden.

I don't suppose CH/4546/ 2002 is available on the net per chance - cos at present we are not paying the four weeks although I have argued for it incessently.........

CH/4546/ 2002 can be found on the hbinfo site at -

http://www.hbinfo.org/menu2/comdecs/ch_4546_2002.shtml

good luck with arguing for this change ...

I've just circulated our Housing Benefit Managers in Surrey to try and get support for Celia's argument with the result that one authority decided to contact the Adelphi for advice (how helpful of them) and received the following reply

"We are aware of the relevant Social Security Commissioner's decision and we are currently considering our position. In the meantime decisions on any "look-alike" cases that occur on or after the date of the Commissioners decision should be deferred under para 16 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 until we are able to issue further guidance."
Lucy Da Silva
HSD.

Looks like we could be in for a long wait unless others authorities pay up without question.

One of our local District Councils has done a press release to the local press, saying they will now pay, and asking anyone who has been turned down in the last six years to contact them !
I've got cases currently before Commissioners and am expecting a decision any day now- so watch this space! I also have a stockpile of cases with TAS awaiting the outcome of my Commissioners cases...

I would be interested in reading the press release do you know which papers it would appear in?

It was in the Ipswich Angle ( very local!)- I can fax a copy if you want to send me your details.

Thanks that would be helpful my fax is 01223 457769

Commissioner Mescher has allowed my appeal (in CH/2641/2003) on the grounds that HB is payable for up to four weeks after the stay in res care becomes permanent, due to an unavoidable liability on two dwellings. He supports Commissioner Jacobs' analysis in CH/4546/2002.
I hope that nationally LAs will now feel able to follow this line.
Just for information, I had estimated rent arrears arising in excess of £160,000 per year, in Suffolk alone, due to the refusal to pay for the notice period.

Whilst the above refers to residential care, are we right in thinking that it would also apply where a person in private accomadation is offered a Housing association tenancy: even though they know that the client has to give a month's notice, they always insist on the tenancy agreement being signed with effect (normally) from the Monday following the acceptance - even when we point out the problems that this causes, they still insist that either the client signs up, or loses the offer.

In your situation the claimant would have to move into their new home, but yes, there is an unavoidable liability on two homes and HB would be payable for up to four weeks. This situation has not been affected by the decisions I have referred to : the significance of these is that it was previously argued that Reg 5(5)(d) did not apply in the res/nursing care cases because they were excluded from receiving HB under Reg 7.

Will Local Authorities be advised about this decision, as I have spoken to our Benefits Manager who has seen nothing about the decision and obviously won't take my word for it. Is there a link to the decision so that I can send him a copy? Also how likely is it that an appeal is made against the decision as he seems to think that this might happen?

there's a link to CH/4546/ 2002 above

Is there a link to CH/2641/2003 or can anyone fax me a copy to 0115 9792875

I'll fax it to you.
It's limited in that the LA had superseeded their original decision but Mescher refers to the Jacobs decision 'positively'.

I now have an electronic copy that I will post to rightsnet

thanks to stainsby, here's the cd -

http://www.rightsnet.org.uk/pdfs/CH_2641_2003.doc