Housing benefit restrictions on eligible rent for private tenants

There are a number of situations for private tenants where the LHA scheme does not apply. These are:

• private tenants who live in a caravan, mobile home or houseboat

• people living in specified hostels (see below)

• regulated (protected) tenancies, who are excluded from current rent restrictions

• private tenancies where a significant portion of the rent payable covers meals and services (ie board and attendance)

• private tenants who have received housing benefit (HB) continuously at the same address since before 7 April 2008. [1]

In each of these cases the sections below apply.

There are restrictions that can be placed on the eligible rent of a housing benefit claimant with a private landlord. These restrictions can also apply to certain specialist accommodation provided by a social or not-for-profit landlords.

The following sections explain the different rules restricting the maximum amount of housing benefit these claimants can receive. The main rules are given first, followed by exceptions.

The claimant's eligible rent (which is sometimes also called a 'maximum rent') is restricted by reference to determinations made by the rent officer. [2] The rent officer is independent of the local authority and is employed by the Department of Work and Pensions (DWP). The rent officer supplies the authority with one or more of the following 'determinations'.

If the rent officer supplies only one figure to the authority, the authority must use that figure as the claimant's eligible rent. If the rent officer supplies more than one figure to the authority, the authority must use the lower (or lowest) figures.

Claim-related rent determinationThis is the rent officer's valuation of the property itself, and is adjusted downwards if the property is significantly more expensive or larger than the claimant and her/his household needs. If it is lower than the claimant's actual rent, it is also called a 'significantly high rent determination', a 'size-related rent determination', or an 'exceptionally high rent determination', depending on why the rent officer considers the claimant's actual rent to be too high.

Local reference rent determinationThis is fixed at the mid-point of rents in the broad market rental area (BRMA) for accommodation of an appropriate type and size, based on market rents paid by tenants who are not getting housing benefit. The regulations allow for a unified definition of BRMAs to apply in respect of both local housing allowance (LHA) and local reference rent cases and for the boundaries of a BRMA to be broadly drawn. [3]

Single room rent determinationThis is used for single claimants under the age of 35, unless they fall within one of the exemption categories set out below.

Size-related determination

For a size-related rent determination the rent officer will determine the total number of bedrooms or living rooms allowed for the household. [4] Guidance on specific issues relating to joint tenants has been issued. [5]

Living rooms

• one living room is allowed for one to three occupiers

• two living rooms are allowed for four to six occupiers

• three living rooms are allowed for seven or more occupiers.

Bedrooms: general rule

There must be one bedroom for each of the following: [6]

• every adult couple

• every other person aged 16 or over, including a resident carer, lodger and child who is in the Armed Forces

• any two children aged under 16 of the same gender

• any two children aged under 10 regardless of gender

• every child who cannot share a bedroom due to her/his disability (for details see below)

• (from 1 April 2017) each member of a couple that is unable to share a bedroom because of a disability (for details see below).

A room used for the storage of medical/special equipment is not to be counted as a bedroom under the regulations. [7]

See the page Restrictions on eligible rents for social rented sector tenants for the definition of a bedroom.

Additional bedroom rules

An additional bedroom is allowed for: [8]

• a foster child (for details see below)

• an overnight carer (for details see below)

Where both categories apply, two additional bedrooms are allowed. [9]

Child in the Armed Forces

A person over the age of 16 who is allowed a bedroom in the size criteria includes a child in the Armed Forces who: [10]

• is away 'on operations'. This does not necessarily mean on duty outside the UK, it also covers pre-deployment training and post-operation leave (ie 'normalisation')

• had been a non-dependant when living at home; and

• intends to return to the claimant's home.

Foster children

An additional bedroom is allowed if the claimant or her/his partner is an approved foster carer, and s/he: [11]

• has a foster child is living with her/him, or

• is between placements and has fostered a child in the last 12 months, or

• became an approved foster carer in the last 12 months.

There must be a 'spare bedroom' in the home in order for an additional bedroom to be allowed. Only one extra bedroom is permitted regardless of the number (or sex) of foster children in the claimant's household.

Carers

A bedroom for a resident overnight carer living in the claimant’s home is allowed under the general rules set out above.

An additional bedroom for a non-resident overnight carer should be allowed when it is 'reasonably required' by a: [12]

• disabled claimant or her/his disabled cohabiting partner

• (from 1 April 2017) disabled child

• (from 1 April 2017) disabled non-dependant adult.

A bedroom will be 'reasonably required' if the non-resident carer 'regularly' stays overnight (this might be when care is provided by a team of carers). [13] Whether the bedroom is 'regularly' used is to be assessed over a long period, and it is not necessary that a carer stays overnight on the majority of nights. [14]

There must be an actual bedroom available for the overnight carer's use that is in addition to those used by the occupier(s) of the property. [15]

Disabled persons

In order to qualify for a bedroom for a non-resident carer or because s/he cannot share a bedroom, the disabled person must be in receipt of one or more of: [16]

• middle or higher rate care component of Disability Living Allowance (DLA)

• higher rate attendance allowance

• daily living component of personal independence payment (PIP)

• armed forces independence payment.

If your client gets Adult Disability Payment, check with CPAG to see if they’re eligible for an additional bedroom. Your client may need to get specialist benefits advice from Citizens Advice Scotland.

Lodgers

A lodger is included when determining the size criteria. [17]

The single room rent determination applies to claimants under the age of 35, regardless of whether they live in shared accommodation or not, unless they fall within one of the exemptions. [18]

The claimant is allowed enough housing benefit to pay for a bedroom in shared accommodation (such as a bedsit) rather than a one-bedroom, self contained flat.

Exemptions

The exemptions are:

• rents her/his property from a local authority or a private registered provider of social housing, or

• is living with a partner, or

• has a dependent child, or

• qualifies for a severe disability premium, or

• has one or more non-dependants (someone who normally resides with her/him and is assumed to contribute towards rent, whether s/he does so or not) living in her/his home, or

• is under the age of 22 and was 'looked after' by the local authority under a court order, at any time after her/his sixteenth birthday, or

• is under the age of 22 and was accommodated by social services under section 20 of the Children Act, or

• lives in a residential care home or nursing home, or lives in certain types of hostel, or

• is an approved foster carer who either has a child placed with them or has not had a child placed with them for up to 52 weeks. [19]

For those aged 25 or over only, there are two additional categories of exemption: [20]

• homeless people who had spent at least three months in a hostel (as defined in the regulations [21] and have accepted resettlement support. The three-month period does not have to be continuous, or in a single hostel, or immediately before the housing benefit claim is made

• ex-offenders who pose a risk of serious harm to the public and are subject to Multi Agency Public Protection Arrangements (MAPPA).

Special rules apply to exempt claimants and exempt accommodation. These are sometimes referred to as 'old rules' claims as they are based on regulations in force before January 1996. [22]

Exempt claimants

This covers housing benefit claims that have been awarded continuously from before 2 January 1996 on the same address (or on a different address if the move was due to fire, flood, explosion or a natural catastrophe). Once these rules apply to a person, if s/he then dies, leaves the property or is sent to prison (or similar forms of detention), her/his partner (or in some cases another household member) falls within the special rules so long as s/he makes the claim within four weeks of that event. [23]

Exempt accommodation

This covers housing benefit claims made at any time by people renting from a private registered provider of social housing, registered charity or voluntary organisation, who receive care, support or supervision from their landlords, or someone on the landlord's behalf. This often referred to as 'supported exempt accommodation'. [24]

Suitable alternative accommodation

In respect of exempt claimants/accommodation the rent officer supplies figures to the local authority. The eligible rent can be restricted if the rent officer determines the rent is unreasonably high or the dwelling unreasonably large. However, the rent officer’s figure is not binding on the local authority. Before determining the eligible rent it must first compare the claimant’s rent with that of suitable alternative accommodation. In deciding what is suitable alternative accommodation the authority must [25]

• look at accommodation which has reasonably equivalent security of tenure

• ensure it compares ‘like with like’

• take into account the age and health needs of the claimant and her/his household.

An authority is not required to inquire into whether a landlord receives public funding and whether this affects the rent charged, when deciding what constitutes a reasonable rent for suitable alternative accommodation. The local authority has the discretion as to the appropriate amount of any reduction in the eligible rent, and there may be a strong case for tempering the reduction where to do otherwise would lead to the homelessness of the claimant. [26]

Where the claimant’s household includes a child or young person the alternative accommodation must be available and it must be reasonable to expect the claimant to move. [27]

Ongoing claims before October 1997

In addition, for claims that have been awarded continuously from before 6 October 1997 on the same address (disregarding breaks in the award of no more than four weeks), the eligible rent is halfway between the claim-related rent determination and local reference rent determination (but only if the rent officer issues a local reference determination). This is often called a '50 per cent top-up'. [28]

If the claimant has a registered fair rent, or has a tenancy that began before 2nd January 1989, her/his details are not referred to the rent officer and it is unlikely that her/his eligible rent will be restricted. [29]

There are two important protections that apply in all the above cases: [30]

• if the claimant and household could afford the accommodation when s/he took on the tenancy, and the claimant has not been in receipt of housing benefit in the 52 weeks prior to the claim, no restriction can apply for the first 13 weeks of the claim; advisers should note, however, that the protection can only be granted for one 13-week period per household. [31]

• if a claimant's home is regarded as too large because someone has died, the rules work as though the person had not died for the first 52 weeks of the claim (so in counting the number of rooms needed, the deceased person is included).

Authorities have a residual power in all the above cases, even ones where the protections apply, to reduce (or further reduce) a person's eligible rent. [32] This is used only rarely.