Playing catch-up

One of the recurring niggling problems that bedevils advice work in a social work setting is the difficulty that new residents in care homes have in paying the rent on the property they leave behind. Fortunately, through the actions of social security commissioners (rather than the politicians who could have sorted out this mess years ago), help is now at hand.

The problem many people face is that housing benefit legislation has been interpreted in such a way that, as soon as a person gives notice to quit their property, their benefit stops.

If a person arranges a temporary stay in a residential home, they can receive benefit on their normal home for 52 weeks as long as they intend to return to their home and do not sub-let.

If someone goes into a residential home for a trial period, they can receive housing benefit for only 13 weeks on the same basis.

If a trial or temporary placement becomes permanent – and the person gives a notice to quit on their rented former home – the normal practice is for their housing benefit to be stopped on the grounds that there is no longer an intention to return home.

This has meant many tenants running up four weeks’ rent arrears during the notice period.

Alternatively, some social work teams have been varying the normal residential charge, so that the resident is left with enough income to pay their rent during their notice. The social work department is the loser, as it is depriving itself of income by doing that.

But two recent social security commissioners have opened up a new possibility that the tenants would have been entitled to housing benefit throughout the notice period. This has been confirmed in a housing benefit circular (A18/2004) sent by the Department for Work and Pensions to local councils in March.

The argument is very technical but someone in the local housing benefit section might understand it.

Payment should continue for four weeks because of a re-interpretation of regulation 5(5)(d) of the housing benefit general regulations. This is as a result of commissioners’ decisions CH/4546/2002 and CH/2641/2003, which rule that housing benefit is payable for up to four weeks after the stay in residential care becomes permanent, due to an unavoidable liability on two homes.

All that regulation 5 requires is liability to make payments on two homes so that benefit can be paid on the first. As a claimant is liable to make payments on two homes when they move to permanent care and have to pay rent in their notice period, they fit into regulation 5. The fact that regulation 7 says payments in residential care are not classed as liable payments for entitlement is a separate issue and not relevant to regulation 5.

Still with me? It may be easier to follow the discussion on this in the housing benefit section of the news pages of Rightsnet (www.rightsnet.org.uk). The result is that many councils are now paying housing benefit for up to four weeks to people who are moving permanently into care homes after emergency placements or successful trial periods.

Gary Vaux is head of money advice, Hertfordshire Council. He is unable to answer queries by post or telephone. If you have a question to be answered please write to him c/o Community Care.