Title: COMMERCIAL BREAK (HOUSING BENEFIT RULES)
Date: 16th - 22nd September 2004
Publisher: COMMUNITY CARE

By ANDREW YOUNG

ABSTRACT

The value of carers’ work is accepted by all. Yet a vital part of the system continues to penalise them, particularly parents whose children need supported independence. This article looks at the often obstructive way housing benefit rules are interpreted, and at the recent legal decision which may make life easier for parents wanting to provide accommodation for their children.

Housing benefit rules, with their insistence on a “commercial relationship”, are unfair as applied to people who need long-term support. But a recent legal judgement may improve things, writes Andrew Young

ANDREW YOUNG is a consultant in the field of housing and learning difficulties and has a special interest in benefits. He is an adviser for Housing Options, a national advice service for people with learning difficulties and their carers. He also works with Hertfordshire Council's money advice unit.

Philip Brewer is a young man with Asperger's syndrome. He has difficulty coping with the outside world and there are many areas of his life in which he needs support. Predictably, his council has no services for him or others like him; no specialised community support, no housing and no way of providing him with the means to move on to independence.

His only carer and supporter is Lawrence, his father. Lawrence could see that, without a place of his own, his son would never reach any real adulthood and that the whole family would be trapped in a cycle of interdependence.

Lawrence's answer to the lack of outside help was simple: he built a self-contained annex for his son, which Philip moved into in November 2002 on leasehold terms agreed between the two of them. Lawrence had sought information from the council's housing benefit department about Philip's entitlement, but no clear answers were forthcoming.

In the event, Philip received no housing benefit. Seven months after claiming, he was told he would not be given help because the council had decided that his tenancy was "non-commercial". Lawrence appealed on Philip's behalf. This was heard by a local appeal tribunal in November 2003. The tribunal sided with the council and so Philip was left with no means of paying the rent to which his father was legally entitled. Philip's case shows how the housing benefit regulations can undermine cost-effective and individually centred responses to the housing needs of people with learning difficulties, autism or Asperger's syndrome.

The regulations give local authorities the discretion to decide that people are not liable to make payments for the place they live in if the council believes the tenancy is not "on a commercial basis". What is a commercial basis? This is up to the authority to decide and the concept has given rise to various test cases. In Philip's situation the local authority and the tribunal took the view that Lawrence's supportive role and the fact that he is Philip's father meant that there could not be a commercial relationship.

Although support and counselling charges for people in Philip's situation are now paid through the Supporting People programme, the rent for the actual accommodation and other service charges is still paid for by housing benefit when the tenant is on a limited income. In practice, most people with intellectual disabilities will need it when they are living independently, but there are several ways in which the intricacy of housing benefit rules can sabotage well thought- out housing plans. Local authorities can refuse housing benefit on the basis that there is no real liability to pay rent - that is if they think that the arrangement is a sham. Even when it is accepted that there is a liability to pay, there are a dozen reasons why a tenant can be treated as though there is no such liability, and so will not receive any housing benefit. Many of these reasons are for specific situations, but there is a catch-all: refusing payment for any arrangement that they think has been made up to take advantage of the housing benefit scheme.

Another problem which often crops up is the shortfall between what the landlord charges and the figure upon which the council bases its calculation for housing benefit. This might not be a big problem if you can take a new job or move somewhere cheaper, but for someone who is likely to rely on benefits all their life and who may desperately need some consistency and stability; it can be stressful and destructive.

Even where the landlord is a housing association or a charity, the local authority can still decide to pay you less than your full rent if your accommodation is deemed to be too large or expensive. Some Social services departments have - tried to shore up tenancy arrangements hit by this shortfall by making payments so that the tenant does not get evicted. Unfortunately, this is often self-defeating as other benefit regulations mean that tenants can lose a lot of their income because of this help. Each local authority has a budget for discretionary payments but these are limited and tend to be spread too thinly to be a long-term solution.

There are some justifications for these restrictions on housing benefit entitlement paying less housing benefit than the actual rent was part of an attempt to regulate those charged in the private market when rent control was scrapped. Refusing housing benefit on the grounds of tenancies being "non-commercial" or "contrived" can be viewed as a legitimate attempt to stop the unscrupulous receiving public funds to which they are not entitled.

However, where supported and independent living for people with intellectual disabilities are concerned, these rules are misplaced.

For every Lawrence Brewer, who spent his capital and energy in solving his son's housing problem, there are many who would do the same but who are put off by the complexity of the housing benefit system and by the uncertainty around whether their ideas will stack up financially. This is a waste of goodwill and private resources which would otherwise go a long way to helping some people with long-term disabilities have their own accommodation and prospects of independence.

What should be done? A simple change would be for the housing benefit rules to accept that any tenancy which helps answer the tenant's community care needs is treated as a commercial tenancy and so eligible for housing benefit. There also needs to be closer co-operation between social services and housing benefit departments so that planned independent living schemes can be given approval for entitlement with rent agreed up front. The rules on allowable rent levels need to be made more generous so that disabled tenants do not have to cope with a shortfall on their payments.

Lawrence took the appeal process one step further to the social security commissioner, who ruled in his favour. In a recent judgment, the commissioner said that there was nothing in the family relationship in itself that prevented the tenancy arrangement being a commercial one. And so, 18 months on, Philip may finally get his rent. A good result for the Brewers, but how many people have the stamina or the avail- able support and expertise to take things so far down the line!

Although this case has helped clarify how the housing benefit rules should be interpreted, it is still a fact that anyone considering providing accommodation for a relative is the faced with uncertainties and should take as much advice as possible beforehand, if only so that they can be aware of the complexities that may arise. Putting together an independent living package is a jigsaw, with housing benefit the part that does not fit well. A change of housing benefit regulation is needed to remedy this. CC

FURTHER INFORMATION

The 1987 Housing Benefit Regulations (as amended in 1996) are the one discussed here. Legal cases on this subject can be seen on the website of the social security commissioner, www.ossc.gov.uk. Interested readers are also directed towards Child Poverty Action Group’s Welfare Benefits Handbook and www.housingoptions.org.uk.