There is a standard template letter doing the rounds which I have reproduced below which says if you have been in receipt of HB continuously from 1 January 1996 or earlier you are exempt from the bedroom tax as the way “eligible rent” is determined is protected.
The letter explains all and needs to be put into appeals to be decided upon:
REVISION REQUEST SIZE CRITERIA – ON-GOING HB CLAIM SINCE 1ST JAN 1996
Housing Benefit Office
Re: Request for revision to apply social sector size criteria (Bedroom Tax)
HB Claim ref:
I would be grateful if you could reassess the above tenant’s entitlement to Housing Benefit from 4th April 2013 to remove the reduction in their entitlement due to their award being assessed under the social sector size criteria.
I believe that you have not used the correct Housing Benefit Regulations when assessing their eligible rent and that as this is an official error there is no time limit for you to revise your decision, and that anyone can point out this error to you.
I believe that because this tenant (or they and their partner/ former partner /child / non-dependant who has: died, or left the property, or served a prison sentence) has been on Housing Benefit continuously since 1st January 1996 (with certain gaps allowed) their eligible rent should be assessed in accordance with paragraph 4 of Schedule 3 to the Consequential Provisions Regulations 1996. This is because Housing Benefit Regulation 2 defines ‘eligible rent’ as follows:
“eligible rent” means, as the case may require, an eligible rent determined in accordance with–
(a) regulations 12B (eligible rent), 12BA (eligible rent and maximum rent(social sector), 12C (eligible rent and maximum rent) or 12D (eligible rent and maximum rent (LHA)); or
(b) regulations 12 (rent) and 13 (restrictions on unreasonable payments) as set out in paragraph 5 of Schedule 3 to the Consequential Provisions Regulations in a case to which paragraph 4 of that Schedule applies;
I believe that, because the tenant meets the conditions, the correct Regulation to be applied when assessing their eligible rent is paragraph (b) ie regulations 12 (rent) and 13 (restrictions on unreasonable payments) as set out in paragraph 5 of Schedule 3 to the Consequential Provisions Regulations in a case to which paragraph 4 of that Schedule applies.
The Consequential Provisions Regulations afford protection from any new eligible rent provision introduced since 1st January 1996 to claimants living in ‘exempt accommodation’ but also to claimants who have had a continuous entitlement to Housing Benefit since 1st January 1996 (with certain gaps allowed).
I believe that this tenant is entitled to this protection and is therefore excluded from the social sector size criteria.
45 thoughts on “Continuous HB since before 1 Jan 1996? Are you exempt from the bedroom tax?”
Excellent ty Joe !
is a tenant not a tenant on housing benefit or not
Bedroom Tax is in real terms a reduction in Housing Benefit. It is not about Landlord versus Tenant, per se – although many Landlords seem to have chosen to pursue an aggressive ‘tough guy’ approach in order to recoup the resulting rent shortfall. Landlords have no say in Housing Benefit decisions; benefit claims are none of the Landlord’s business. Tenants who disagree with a decision to reduce their HB award may correctly believe – for one or several reasons – that they are NOT liable to pay BT. Accordingly they then exercise their legal right to appeal. Only Tenants who claim Housing Benefit are affected by the ‘Under-Occupancy Charge’.
what gaps are allowed
Note that the HB claim must be ‘continuous’, although allowing for one gap in entitlement of up to 4 weeks – this does not appear to include gaps in entitlement due to absence. The claim also counts as continuous for some ‘welfare to work beneficiaries’ who’ve tried work, come off HB, then due to ill health left work and reclaimed HB within 52 weeks. These rules about continuity are ambiguously worded so there may be some margin for interpretation.
Note also that the claim counts as continuous even if the original claimant died or was imprisoned or left the property, so long as a new claim was made, within 4 weeks of their death/leaving/imprisonment, by a partner or former partner or non-dependent or dependent child who was living in the property when the original claimant died/left/ was imprisoned.
A 4 week Gap is allowed
I have been on HB for 20yrs but have moved home(within the same council/LA). As it states, “continuous claim” is that for the same property(the property doesn’t claim) or the claimant. this will need to be clarified before a few people get upset..
Same property unfortunately (unless you moved because of a fire or something like that)
how do I download this
What do we class as ‘exempt’ accommodation?
I have written to my Local Housing Benefit Office using the template letter to request that they review the 14% cut they have made to my Social Sector Housing Benefit claim and in there reply, they have basically stated that the Regulations quoted in the Template Letter are only applicable to Private Sector Tenants.
rearrange these words – council your arse through talking is.
There is no doubt this applies and get your council to put this in writing to you and if they do launch an appeal.
They have also stated in their reply letter, that as the Tribunal Service had ruled in their favour for applying the 14% cut in my Housing Benefit and I have been awarded a DHP, they could not provide any further assistance.
And so I have written back to my Local Housing Benefit Office, informing them that I have requested the First-tier Tribunal’s decision be “Set Aside” so that my Housing Benefit Appeal can be ruled upon through an Upper Tribunal Hearing once the High Court ruling on the “Under-occupancy Charge” has been heard by the Court of Appeal.
Your original FtT has been decided in error as whatever their decsion whether that be on room size room usage etc is wrong in law. If you meet the pre 1996 conditions you are exempt and whatever the decision made is wrong in law. As you are exempt it should never have got to the stage that the FtT decided it should have been thrown out as you are exempt.
The FtT threw out my Housing Benefit Appeal on the grounds that; “I am a single person with no overnight care needs”.
Also, even though I have been in receipt of HB since 1988, the Housing Benefit Department used the date of my last HB review (April 2004) as evidence to show that HB is being paid on the property and when I complained about this they, informed me that their current Computer system does not holds HB records prior to April 1999.
then excuse the phrase but “tough shit” for the council. It is THEIR responsibility under regulations and law to check each case and they did not. The fact their systems only go back so far may be explanation but it is also excuse. The FtT wrongly decided your case in law as there was n case to answer and if you meet the pre 1996 criteria you ARE exempt, end of story.
Dont “complain” about it ask them to review the case and if not get it into a tribunal appeal
I do have a letter dated the 16.12.1992 from the Assistant Area Benefits Officer, which gives a breakdown of the HB I was awarded from the 1.8.88 to the date of the letter, but the FtT Judge did not think the letters, were relevant to the Appeal as they were from a battle I had with the HB Department in 1991 – 1992 over HB Regulation 5(3) 5(b) and the dispute over which property was classed as my Principle Home whilst studying away from home in “Temporary” Student Accommodation.
Joe can you please re-confirm this, that it is the housing responsibility under regulations and law to check that you have been in receipt of HB during this time and NOT the tenant , As this section has been put up on internet about the tenants duty to submit proof and not the housing, as I myself I do fall into everyone of these category’s . I also know they have a file going back this far as when my tenancy started thank you .
and if they do not check … even if you are post 1996 … not checking is an official error
joe – one of our members has just had a reply from their council saying the Bedroom tax legislation on 1st April superseded this!
…..that’s Wandsworth council
I have lived in the same property since 1991. I had a period of employment which was for approx 1 year without claiming any HB, would I still qualify for a repayment as I have had to pay for 1 spare bedroom since the bedroom tax was introduced. My partner also worked for a period of approx 1 – 2 years full time since 1996.
I have been in receipt of hb since 1990, I moved house in feb 1996 would I still be eligible for a repayment, or have I just missed out?
is this available in pdf to edit and send to housing department plz
About what period of time should i give my landlord ( local Council) to reply to my letters about this development in the Bedroom tax ?
I am writing to let people know that I have appealed my bedroom tax on my 3 bed property in Islington on the basis that the third bedroom was too small(under 70sq foot) to be classified as a bedroom fit for purpose(meaning for an adult to live in). I went through legal aid and took 6 months to get it to the courts and won!!! Like most 3 bed properties..the 3rd bedroom is usually small or a shoebox and I would challenge them. I have 2 kids under 5 who are of mixed sex and was expected to downsize or sublet to make up the shortfall. However I felt that I was not under occupying the space and fought them. Today, I got a letter in black and white from them to say that they have amended my HB to the full amount going back to April 2013 but no mention of refunding me so now the next process of me getting my monies back is on the way!!! My advice to people is to appeal if you are in the same position as I was with a small 3rd bedroom. Take care and all the best people.
If you have won at tribunal it means the tribunal has amended the decision made by the council to impose the bedroom tax on you. In simple terms the council will now have to pay you back the HB they have deducted from 1 April in bedroom tax. They will most likely pay this to your landlord but they will be paying you back and then if you are in credit with your rent after this any credit you can claim back from your landlord
Although I did not win my appeal against the bedroom tax, the ruling was set aside due to the soon to be closed ” pre-1996 loophole” and I then received a HB Refund, paid into my rent account, however when I requested a refund of the money, I was informed that the request had been refused, due to “part of the refund being made up of money from a DHP”.
Anyway when I spoke to Housing Benefits on the phone about the refusal to pay the refund, I was informed that if they gave me the refund then, “I would not be considered for another DHP for the equivalent period that the credit on your account would have covered your on going liability”
However I was not told if the period they are taking about relates only to the DHP I was paid or it relates to the DHP along with the monies I paid towards the rent.
i have written to my local council sandwell in january about the loophole still not heard anything they keep saying they are waiting for instructions from dwp what thr procedure is.
Can anyone help me? I’ve been told by Liverpool City Council (in writing) that the loophole does not apply to me, even though I have lived in the property since before 1996 because and I quote ‘The Protection DOES NOT apply to children and non-dependants, the protection can only be transferred to tenants that had been living together as partners.’
I took over the tenancy in 2012 after my mother died, I was down as a non-dependant until then – is this correct??
Thank you in advance.
Appeal this as Liverpool have his wrong
@joehalewood – Many thanks!
How Could LCC get things so wrong?
I spoke with them today over this and LCC have the view that succession and pre 96 exemption only applies to partners. Yet ask them to look at HB Regulation 7 which says this is not the case and it applies to those who occupied the property when the previous tenant (mum/dad etc) passed away. The answer to your question is just more rank incompetence
@joehalewood – Many thanks again for this information, I have eviction proceedings looming against me at the end of the month so I have appealed their decision of rejection based upon it only applies to partners. I’ll update here when I hear anything.
Makes me wonder how many people in my situation too have been told by LCC that they are not eligible when in fact they are, what a farce.
We’ve been in our property well before 1996 & sent a letter to council Re-Loophole 1996 & had our reply late march & was found to be Exempt by council,Great result, but now have rang our council numerous times to request a refund of the money we have paid since last April 2013 to 3rd March 2014 & also had help with DHP but council have said this will go onto our rent & were unable to have this back, but we are entitled to a refund of money we have paid Ourselves,, they told us we,d get a cheque within 2weeks, then we called 3 weeks later & then they said we should get it within a week, called again 2weeks later & now they are saying it will take 5weeks, end of may, getting sick of calling them now, what should we do if we don’t receive cheque end of may?
Hi am Marie Lee I live at 21 cadogan street Liverpool L15 2JZ I asked for my money back and was told that it must remain with them in case I get into arrears in the future. The have my bank details and I have always paid by direct debit .I have lived in the same house since new (going on 24years maybe longer )and have always been on HB.please can u help thanks. Marie Lee 30th may 2014