The Housing Benefit and Council Tax Benefit (Subsidy) Order 1997

PART I GENERAL

Citation, commencement and interpretation

1.—(1) This Order, which may be cited as the Housing Benefit and Council Tax Benefit (Subsidy) Order 1997, shall come into force on the 21st day after the day on which it is laid before Parliament.

(2) In this Order, unless the context otherwise requires—

“the Act” means the Social Security Administration Act 1992;

“new authority” means

(i)

in England, a successor authority as defined in paragraph (1) of regulation 2 of the Local Government Changes for England (Housing Benefit and Council Tax Benefit) Regulations 1995(1) whose reorganisation date, as defined in that paragraph, was 1st April 1996;

(ii)

in Wales, an authority constituted under sections 20 and 21 of the Local Government Act 1972(2), and

(iii)

in Scotland, an authority constituted under section 2 of the Local Government etc. (Scotland) Act 1994(3);

“period overrun” has the meaning assigned to it by paragraph 1 of Schedule 4;

“relevant year” means the year ending 31st March 1997;

“the 1991 Order” means the Housing Benefit and Community Charge Benefit (Subsidy) Order 1991(4);

“the 1992 Order” means the Housing Benefit and Community Charge Benefit (Subsidy) Order 1992(5);

“the 1993 Order” means the Housing Benefit and Community Charge Benefit (Subsidy) (No.2) Order 1993(6);

“the 1994 Order” means the Housing Benefit and Council Tax Benefit (Subsidy) Order 1994(7);

“the 1995 Order” means the Housing Benefit and Council Tax Benefit (Subsidy) Order 1995(8), and

“the 1996 Order” means the Housing Benefit and Council Tax Benefit (Subsidy) Order 1996(9).

(3) In this Order, a reference to a numbered article or Schedule is to the article in, or Schedule to, this Order bearing that number and, unless the context otherwise requires, a reference in an article or a Schedule to a numbered paragraph or Part is to the paragraph or Part, as the case may be, bearing that number in that article or that Schedule and a reference in a paragraph to a lettered or numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter or number.

PART II HOUSING BENEFIT SUBSIDY

Interpretation of Part II

2.—(1) In this Part of this Order, unless the context otherwise requires—

“allowance” means a rent allowance;

“authority” means a housing or, as the case may be, local authority;

“board and lodging accommodation” means—

(a)

accommodation provided for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which are both cooked or prepared and consumed in that accommodation or associated premises; or

(b)

accommodation provided in a hotel, guest house, lodging house or some similar establishment,

but it does not include accommodation in a residential care home or nursing home within the meaning of regulation 19(3) of the Income Support (General) Regulations 1987(10) nor in a hostel within the meaning of regulation 12A of the Housing Benefit Regulations(11);

“housing benefit subsidy” means subsidy under section 135(1) of the Act (rate rebate, rent rebate and allowance subsidy payable) and under section 30(1A) of the Social Security Act 1986(12);

“rebate” means a rent rebate excluding, in the case of England and Wales, any Housing Revenue Account rebates(13);

“scheme” means the housing benefit scheme as defined in section 123 of the Social Security Contributions and Benefits Act 1992(14);

“Scottish corporation” means a development corporation within the meaning ascribed to that term in section 2 of the New Towns (Scotland) Act 1968(15) or Scottish Homes;

“the Housing Benefit Regulations” means the Housing Benefit (General) Regulations 1987(16);

“the Rent Officers Order” means the Rent Officers (Additional Functions) Order 1995(17) or the Rent Officers (Additional Functions) (Scotland) Order 1995(18), as the case may be;

“the Rent Officers Order 1990” means the Rent Officers (Additional Functions) Order 1990(19) or the Rent Officers (Additional Functions) (Scotland) Order 1990(20), as the case may be;

and other expressions used in this Part of this Order and in the Housing Benefit Regulations shall have the same meanings in this Order as in those Regulations.

(2) In this Part of this Order—

• “housing benefit qualifying expenditure” means the total of rebates and allowances, including any payments under regulation 91 of the Housing Benefit Regulations (payments on account of a rent allowance)(21) and any extended payments, lawfully granted by the authority during the relevant year, less—

  (a)

  the deduction, if any, calculated for that authority in article 6;

  (b)

  any allowances to which paragraph (5) of article 8 or paragraph 7 of Schedule 6, as the case may be, apply;

  (c)

  any rebates to which paragraph (4) of article 9 applies;

  (d)

  the deductions specified in article 11, and

  (e)

  where, under subsection (8) of section 134 of the Act(22) (arrangements for housing benefit), the authority has modified any part of the scheme administered by it, any amount by which the total of the rebates or allowances which it granted under the scheme during the relevant year exceeds the total of those which it would have granted if the scheme had not been so modified.

Amount of housing benefit subsidy

3.  The amount of an authority’s housing benefit subsidy for the relevant year—

(a) for the purposes of section 135(2) of the Act (subsidy in respect of rebates or allowances) shall be the amount or total of the amounts calculated in accordance with article 4;

(b) for the purposes of section 135(5) of the Act (subsidy in respect of the costs of administering housing benefit) may include an additional sum in respect of the costs of administering housing benefit calculated in accordance with Schedules 1 and 2.

Rebates and allowances

4.—(1) Subject to any adjustment in accordance with paragraph (3), for the purposes of section 135(2) of the Act, an authority’s housing benefit subsidy for the relevant year shall, subject to paragraph (2), be—

(a) in the case of an authority to which none of articles 5, 7, 8 and 9(1) to (3) apply, 95 per cent. of its housing benefit qualifying expenditure;

(b) in the case of any authority to which at least one of those articles applies an amount equal to the aggregate of—

(i) 95 per cent. of so much of its housing benefit qualifying expenditure as remains after deducting from total qualifying expenditure the amount of expenditure attributable to the rebates or allowances to which each of those articles which is relevant applies; and

(ii) the appropriate amount calculated in respect of the rebates or allowances under each such article,

plus, in each case, the additions, where applicable, under articles 9(5), 10 and 13(2), but subject, in each case, to the deductions, where applicable, under articles 12 and 13(3).

(2) Where the authority is a Scottish corporation, its housing benefit subsidy for the relevant year shall include a further sum being—

(a) in the case of an authority to which sub-paragraph (a) of paragraph (1) applies, 5.5 per cent. of its housing benefit qualifying expenditure, but subject to the relevant maximum specified in column (2) of Schedule 3; or

(b) in the case of an authority to which sub-paragraph (b) of paragraph (1) applies, 5.5 per cent. of so much of its housing benefit qualifying expenditure as remains after the deductions set out in paragraph (1)(b)(i), but subject to the relevant maximum specified in column (2) of Schedule 3.

(3) Where, during the relevant year there is a period overrun in respect of either rebates or allowances, or both, then the housing benefit subsidy for the authority for that year shall be adjusted by the deduction from the subsidy otherwise due under this article of—

(a) an amount equal to the percentage, as calculated in accordance with paragraph 2 of Schedule 4, of that part of the housing benefit qualifying expenditure for that authority attributable to expenditure in respect of allowances to the extent that the overrun relates to allowances; and

(b) an amount equal to the percentage, as calculated in accordance with paragraph 3 of Schedule 4, of that part of the housing benefit qualifying expenditure for that authority attributable to expenditure in respect of rebates to the extent that the overrun relates to rebates.

Backdated benefit

5.—(1) Subject to paragraph (2), where —

(a) during the relevant year an authority has, under paragraph (15) of regulation 72 of the Housing Benefit Regulations (time and manner of claiming)(23), treated any claim as made on a day earlier than that on which it is made (“backdated”); and

(b) any part of that authority’s housing benefit qualifying expenditure is attributable to such earlier period,

for the purposes of article 4(1)(b)(ii), the appropriate amount for the relevant year in respect of such part shall be 50 per cent. of the housing benefit qualifying expenditure so attributable.

(2) This article shall not apply in a case—

(a) to which article 10(1)(b)(ii) applies; or

(b) where—

(i) the person claiming fell within regulation 7A(4)(g) of the Housing Benefit Regulations (certain persons from abroad)(24);

(ii) he made that claim on or after 21st June 1996, but before 24th July 1996, and

(iii) an authority has backdated that claim.

Disproportionate rent increase

6.—(1) Except where paragraph (5), (6) or (7) applies, in the case of an authority in Scotland, where the average rent increase differential, as calculated in accordance with paragraph (2), for such an authority has a value greater than zero, the deduction from housing benefit qualifying expenditure specified in article 2(2)(a) shall be that proportion of the sum calculated for that authority in accordance with paragraph (4).

(2) (a) Subject to sub-paragraph (b), the average rent increase differential for each appropriate authority shall be calculated by applying the formula—

where

• A, B, C, D and E each has the value determined in accordance with paragraph (3).

(b) In the case of a new authority to which paragraph (5), as modified by paragraph (6), does not apply, the average rent increase differential for each such authority shall be calculated by applying the formula in sub-paragraph (a) except that, for the purposes of this sub-paragraph, the value of A shall be determined by multiplying F x G in relation to each predecessor authority of that new authority and then adding together the sum of that multiplication in relation to each such predecessor authority.

(3) For the purposes of paragraph (2)—

(a) subject to paragraph (2)(b), the value of A shall be the proportion calculated for that authority pursuant to paragraphs (3) and (4) of article 6 of the 1996 Order;

(b) the value of B shall be the average rent charged by the authority in respect of Category 1 dwellings on the final date;

(c) the value of C shall be the average rent charged by the authority in respect of Category 1 dwellings on the initial date;

(d) the value of D shall be the average rent charged by the authority in respect of Category 2 dwellings on the initial date;

(e) the value of E shall be the average rent charged by the authority in respect of Category 2 dwellings on the final date;

(f) the value of F shall be the proportion calculated for a predecessor authority pursuant to paragraphs (3) and (4) of article 6 of the 1996 Order, and

(g) the value of G shall be the proportion of the new authority’s housing stock which was previously the stock (or part thereof) of that predecessor authority.

(4) The sum referred to in paragraph (1) shall be that part of housing benefit qualifying expenditure attributable to rebates granted during the relevant year before any deduction by reason of this article but less any part of such expenditure to which article 4(1)(b)(ii) applies.

(5) This article shall not apply in the case of an authority—

(a) which has—

(i) set the rent for the relevant year according to the type, condition, class or description of the dwellings and the services, facilities or rights provided to the tenants, where that rent is reasonable having regard to those matters;

(ii) not taken account of whether a tenant was a beneficiary when setting rents for the relevant year, and

(iii) not let dwellings, either in the relevant year or in either of the two previous years, to beneficiaries irrespective of their housing needs;

or

(b) where—

(i) any increases in rent between the initial date and 1st April 1997 were of the same percentage and applied on the same day to all tenants irrespective of whether they were beneficiaries, and

(ii) the average rent increase differential calculated in accordance with article 6 of the 1996 Order for that authority had a value which was zero or less than zero.

(6) In relation to a new authority, this article shall be modified so that

• “initial date” means 1st April 1996 and in paragraph (5)—

  (a)

  at the beginning there shall be inserted the words “Provided that where the average rent increase differential calculated in accordance with article 6 of the 1996 Order for each predecessor authority had a value which was zero or less than zero,”;

  (b)

  in sub-paragraph (a)(iii) for “, either in the relevant year or in either of the two previous years,” there shall be substituted the words “in the relevant year”; and

  (c)

  in sub-paragraph (b) head (ii) shall be omitted.

(7) This article shall also not apply in a case to which article 9 applies.

(8) In this article (and, in the case of the definition of “beneficiary”, also in article 11(2))—

“average” means the arithmetic mean;

“beneficiary” means a person who is entitled or likely to become entitled to a rebate;

“Category 1 dwellings” means dwellings rented out by the authority on both the initial date and the final date in respect of which, on the final date, the persons liable to pay such rent were in receipt of rebates;

“Category 2 dwellings” means dwellings rented out by the authority on both the initial date and the final date in respect of which, on the final date, the persons liable to pay such rent were not in receipt of rebates;

“final date” means the 31st March 1997;

“initial date” means the 31st March 1996;

“predecessor authority” means, in the case of a new authority, any authority which, before 1st April 1996, administered rent rebates in that new authority’s area, and

“rent” means either—

(a)

the payments specified in sub-paragraphs (a) to (j) in paragraph (1) of regulation 10 of the Housing Benefit Regulations (rent)(25); or

(b)

the eligible rent,

as the authority may determine, provided that wherever the expression “rent” occurs in paragraph (3) it has the same meaning throughout in relation to that authority.

Treatment of high rents

7.—(1) Except in a case to which paragraph (2) applies, this article applies in a rent allowance case where the dwelling is an excluded tenancy by virtue of paragraph 1 and any of paragraphs 5 to 9 of Schedule 1A to the Housing Benefit Regulations(26) (excluded tenancies).

(2) This article does not apply in a case where—

(a) (i) a rent is registered in respect of a dwelling under Part IV, V or VI of the Rent Act 1977(27) or Part V, VI or VII of the Rent (Scotland) Act 1984(28); or

(ii) an application has been made for such registration as is mentioned in head (i) above, but no such registration has been made because the rent officer or rent assessment committee, as the case may be, are satisfied that the rent is at or below the fair rent level; or

(b) the relevant tenancy is one to which, before 15th January 1989, the provisions of sections 56 to 58 of the Housing Act 1980(29) (assured tenancies) applied; or

(c) the relevant dwelling is situated within the area of a housing action trust established under Part III of the Housing Act 1988 (Housing Action Trust Areas)(30); or

(d) the dwelling is an excluded tenancy by virtue of paragraph 3 or 10 of Schedule 1A to the Housing Benefit Regulations(31) (excluded tenancies).

(3) Where this article applies and any part of the housing benefit qualifying expenditure of an authority, whose area is or lies within an area identified in column (1) of Schedule 5, is attributable to any allowance granted in respect of a person whose weekly eligible rent exceeds the threshold specified in relation to that area in column (2) of that Schedule, for the purposes of article 4(1)(b)(ii), the appropriate amount in respect of that allowance shall be calculated in accordance with paragraph (4).

(4) Where paragraph (3) applies and—

(a) the allowance granted is the same as or is less than the excess of eligible rent over the threshold, the appropriate amount shall be 25 per cent. of that part of the housing benefit qualifying expenditure attributable to such allowance;

(b) the allowance granted is greater than the excess of the eligible rent over the threshold, the appropriate amount shall be 25 per cent. of that part of the housing benefit qualifying expenditure attributable to such allowance which is equal to the excess, and 95 per cent. of that part of the housing benefit qualifying expenditure attributable to the balance.

Rent officers' determinations

8.—(1) Where this article applies, the appropriate amount, for the purposes of article 4(1)(b)(ii), shall be calculated in accordance with Schedule 6.

(2) Except in a case to which article 5 applies and subject to paragraphs (6), (7) and (8), this article applies where—

(a) an authority applies to a rent officer for a determination to be made under the Rent Officers Order in relation to a dwelling; and

(b) the officer makes a determination under that Order.

(3) This article also applies in a case where—

(a) the dwelling (A) is in a hostel; and

(b) by virtue of regulation 12A(2) of the Housing Benefit Regulations(32) (exemptions from requirement to refer to rent officers) an application for a determination in respect of that dwelling (A) is not required because the dwelling is regarded as similar to another dwelling (B) in that hostel in respect of which a determination has been made, and in such a case the determination made in respect of dwelling (B) shall, for the purposes of this article, be treated as if it were a determination in respect of dwelling(A).

(4) This article also applies where a rent officer has made a determination in respect of a tenancy of a dwelling and by virtue of paragraph 2 of Schedule 1A to the Housing Benefit Regulations(33) (excluded tenancies) a new determination is not required in respect of another tenancy of the dwelling, and in such a case the determination made shall, for the purposes of this article, be treated as if it were a determination made in respect of that tenancy.

(5) This article also applies in a case where an authority is required, under regulation 12A of the Housing Benefit Regulations (requirement to refer to rent officer), to apply for a determination in relation to a dwelling during the relevant year which a rent officer would be required to make, but the authority fails to apply for that determination, and, in such a case, except where paragraph (3) applies, any allowance granted shall, subject to article 11(4), be deducted from housing benefit qualifying expenditure pursuant to article 2(2)(b).

(6) Where a determination as to the rent which a landlord might reasonably be expected to obtain in respect of a dwelling was made, prior to 2nd October 1995, by a rent assessment committee following a determination made by a rent officer under paragraph 1 of Schedule 1 to the Rent Officers Order 1990, this article shall cease to apply in so far as—

(a) regulation 7 of the Income-related Benefits Schemes and Social Security (Claims and Payments) (Miscellaneous Amendments) Regulations 1995(34) (transitional provision) applies with respect to the rent assessment committee’s determination; and

(b) that rent assessment committee’s determination relates to a determination made by a rent officer under that paragraph of that Schedule,

from the date on which the rent assessment committee’s determination takes effect.

(7) Where—

(a) a determination under paragraph 1 of Schedule 1 to the Rent Officers Order 1990 has been made by the rent officer, and

(b) an application is made to the rent assessment committee and a determination to which paragraph (6)(b) refers is made by that committee prior to 2nd October 1995, and, had that application been made before the reference to the rent officer which led to that determination, the rent officer would, in accordance with article 5(2) of the Rent Officers Order 1990(35), not have made such a determination,

this article shall cease to apply in so far as—

(i) regulation 7 of the Income-related Benefits Schemes and Social Security (Claims and Payments) (Miscellaneous Amendments) Regulations 1995 (transitional provision) applies with respect to that rent assessment committee’s determination; and

(ii) that rent assessment committee’s determination relates to a determination under paragraph 1 of Schedule 1 to the Rent Officers Order 1990.

(8) Except in a case to which paragraph (9), (10) or (11) applies, this article shall not apply where a maximum rent has been determined.

(9) In a case where a maximum rent has been determined by reference to a reckonable rent and a local reference rent, the appropriate amount shall be calculated in accordance with paragraph 11 of Schedule 6.

(10) In a case where, prior to the determination of a maximum rent, a payment was made pursuant to regulation 91 (payment on account) of the Housing Benefit Regulations(36), the appropriate amount shall be calculated in accordance with paragraph 6 of Schedule 6.

(11) In a case to which regulation 11(9) (maximum rent) of the Housing Benefit Regulations(37) applies, the appropriate amount shall be calculated in accordance with paragraph 12 of Schedule 6.

Additions in respect of homeless and short lease rebates

9.—(1) Subject to paragraphs (4) and (5), where paragraph (3) applies, and any part of the housing benefit qualifying expenditure of an authority identified in column (1) of Schedule 7 attributable to any rebate granted in respect of a person whose weekly eligible rent exceeds the threshold specified in relation to that authority in column (2) of that Schedule, then for the purposes of article 4(1)(b)(ii), the appropriate amount in respect of that rebate shall be calculated in accordance with paragraph (2).

(2) Where paragraph (1) applies—

(a) if the rebate granted is the same as or is less than the amount by which the eligible rent exceeds the threshold, the appropriate amount shall be 25 per cent. of that part of the housing benefit qualifying expenditure attributable to such rebates;

(b) if the rebate granted is greater than the amount by which the eligible rent exceeds the threshold, the appropriate amount shall be 25 per cent. of that part of the housing benefit qualifying expenditure attributable to such rebates which is equal to the excess and 95 per cent. of the housing benefit qualifying expenditure attributable to the balance after deducting that excess.

(3) This paragraph applies where a rebate is payable by an authority in respect of rents which exceed the threshold and—

(a) a person is required to pay to an authority under section 69(2)(b) of the Housing Act 1985(38), section 206 of the Housing Act 1996(39) or section 35(2)(b) of the Housing (Scotland) Act 1987(40), as the case may be, for board and lodging accommodation made available to that person;

(b) a person is required to pay to an authority under section 69(2)(b) of the Housing Act 1985, section 206 of the Housing Act 1996 or section 35(2)(b) of the Housing (Scotland) Act 1987, as the case may be, for accommodation, which the authority holds on a licence agreement from a landlord, made available to that person;

(c) a person is required to pay to an authority for accommodation outside the Housing Revenue Account, which the authority holds on a lease granted for a term not exceeding 3 years, made available to that person.

(4) Where, in Scotland—

(a) a person is required to pay to an authority for accommodation within the Housing Revenue Account which the authority holds on a lease granted for a term not exceeding 3 years, made available to that person, and

(b) an authority identified in column (1) of Schedule 7 has granted any rebate in respect of such payments,

the amount of any such rebate shall, subject to article 11(4), be deducted from housing benefit qualifying expenditure, pursuant to article 2(2)(c), and the addition, if any, in respect of such rebates, referred to in article 4(1), shall be calculated in accordance with paragraph (5).

(5) Where paragraph (4) applies—

(a) if the rebate granted is in respect of a person whose weekly eligible rent does not exceed the threshold specified in relation to that authority in column (2) of Schedule 7 (“the relevant threshold”), then the addition shall be 95 per cent. of that rebate;

(b) if the rebate granted is the same as or is less than the amount by which the eligible rent exceeds the relevant threshold, there shall be no addition, and

(c) if the rebate granted is greater than the amount by which the eligible rent exceeds the threshold, there shall be no addition in respect of such part of such rebate which is equal to the excess, but there shall be an addition of 95 per cent. of that part of such rebate attributable to the balance after deducting that excess.

Further additions to housing benefit subsidy

10.—(1) Subject to paragraphs (8) and (9), the additions referred to in article 4(1) are—

(a) where following the loss, destruction or non-receipt, or alleged loss, destruction or non-receipt of original instruments of payment, an authority makes duplicate payments and the original instruments have been or are subsequently encashed, an amount equal to 25 per cent. of the amount of the duplicate payments;

(b) subject to paragraphs (2) and (3), where, during the relevant year, it is discovered that an overpayment of rebate or allowance has been made and an amount is to be deducted under article 11 in relation to that overpayment, an amount equal to—

(i) in the case of an overpayment caused by departmental error, 95 per cent. of so much of the overpayment as has not been recovered by the authority;

(ii) in the case of a fraudulent overpayment 95 per cent. of the overpayment; or

(iii) except where head (i) or (ii) above applies, 25 per cent. of the overpayment;

(c) where, during the relevant year, it is discovered that an overpayment in respect of which a deduction was made under article 11 of the 1994 Order, 1995 Order or the 1996 Order (other than a deduction under article 11(1)(g) of the 1994 Order or 11(1)(f) of the 1995 or 1996 Orders) was a fraudulent overpayment the difference, if any, between 95 per cent. of any such overpayment and the amount of any housing benefit subsidy that has been paid to that authority in respect of that overpayment;

(d) in the case of an authority identified in column (1) of Schedule 8 the sum specified in relation to that authority in column (2) of that Schedule.

(2) The amount under paragraph (1)(b) shall not include an amount in relation to—

(a) an overpayment caused by an error of the authority making the payment, or

(b) any technical overpayment.

(3) Where an overpayment is caused by departmental error, but some or all of that overpayment is recovered by the appropriate authority, no addition shall be applicable to the authority in respect of the amount so recovered.

(4) In paragraphs (1)(b)(i) and (3) and in article 11(1)(e) “overpayment caused by departmental error” means an overpayment caused by a mistake made or something done or omitted to be done by an officer of the Department of Social Security or the Department for Education and Employment, acting as such, or a decision of an adjudication officer, social security appeal tribunal or Social Security Commissioner appointed in accordance with sections 38(1), 40(1), 51(1) and 52(1) of the Act (appointment of adjudication officers, chairmen and members of social security appeal tribunals and Commissioners) where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission.

(5) In paragraph (1)(b)(ii) and (c), in article 11(1)(f) and in paragraph 1 of Schedule 9 “fraudulent overpayment” means an overpayment in respect of a period falling wholly or partly after 31st March 1993 and which—

(a) is so classified by an officer of the authority, designated for that purpose by the authority, after that date; and

(b) occurs as a result of the payment of a rebate or allowance arising in consequence of—

(i) a breach of section 112 of the Act (false representations for obtaining benefit), or

(ii) knowingly failing to report a relevant change of circumstances, contrary to the requirements of regulation 75 of the Housing Benefit Regulations(41) (duty to notify change of circumstances), with intent to obtain or retain such a rebate or allowance for himself or another.

(6) In paragraph (2)(a) “overpayment caused by an error of the authority making the payment” means an overpayment caused by a mistake made or something done or omitted to be done by that authority, where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission.

(7) In paragraph (2)(b) “technical overpayment” means that part of an overpayment which occurs as a result of a rebate being granted in advance and—

(a) a change of circumstances reduces or eliminates entitlement to that rebate; or

(b) the authority subsequently identifies a recoverable overpayment which does not arise from a change in circumstances,

but shall not include any part of that overpayment occurring before the benefit week following the week in which the change is disclosed to the authority or it identifies that overpayment.

(8) Except for paragraphs (1)(b)(ii), (1)(c) and (5), this article shall not apply to that part of any rebate or allowance in respect of a case to which paragraph (15) of regulation 72 of the Housing Benefit Regulations (time and manner in which claims are to be made)(42) applies.

(9) Any reference in this article to an overpayment shall not include any rebate or allowances for any period overrun or other period immediately following expiry of the specified period determined under regulation 66 of the Housing Benefit Regulations(43) except for so much of any rebate or allowance to which the claimant would not have been entitled had a claim for that period been duly made and determined.

Deductions to be made in calculating housing benefit subsidy in respect of rebates or allowances

11.—(1) The deductions referred to in article 2(2)(d) are, subject to paragraph (4), to be of the following amounts where—

(a) subject to paragraphs (2) and (3), a tenant of an authority, who is in receipt of a rebate while continuing to occupy, or when entering into occupation of, a dwelling as his home, either under his existing tenancy agreement or by entering into a new tenancy agreement—

(i) is during, or was at any time prior to, the relevant year able to choose whether or not to be provided with any services, facilities or rights (“improvements”) and chooses or chose to be so provided; or

(ii) is during, or was at any time prior to the relevant year able to choose either to be provided with any improvements or, whether or not in return for an award or grant from the authority, to provide such improvements for himself; or

(iii) would be able during, or would have been able at any time prior to, the relevant year to exercise the choice set out in head (i) or (ii) of this sub-paragraph if he were not or had not at that time been in receipt of a rebate,

the amounts attributed during the relevant year to such improvements whether they are or would be expressed as part of the sum fixed as rent, otherwise reserved as rent or expressed as an award or grant from the authority;

(b) during the relevant year a person becomes entitled to a rent-free period which has not been, or does not fall to be, taken into account in calculating the amount of rebate to which he is entitled under the Housing Benefit Regulations, the amount of rebate which is or was payable to him in respect of such rent-free period;

(c) during the relevant year an award in the form of a payment of money or monies worth, a credit to the person’s rent account or in some other form is made by an authority to one of its tenants in receipt of rebate, whether or not the person is immediately entitled to the award, the amount or value of the award, but no such deduction shall be made in respect of an award—

(i) made to a tenant for a reason unrelated to the fact that he is a tenant;

(ii) made under a statutory obligation;

(iii) made under section 137 of the Local Government Act 1972(44) or section 83 of the Local Government (Scotland) Act 1973(45) (power of local authorities to incur expenditure for certain purposes not otherwise authorised);

(iv) except where sub-paragraph (a)(ii) applies, made as reasonable compensation for reasonable repairs or redecoration the tenant has, or has caused to be, carried out whether for payment or not and which the authority would otherwise have carried out or have been required to carry out; or

(v) of a reasonable amount made as compensation for loss, damage or inconvenience of a kind which occurs only exceptionally and which was suffered by the tenant by virtue of his occupation of his home;

(d) during the relevant year the weekly amount of rebate or allowance is increased pursuant to paragraph (2) or (3) of regulation 61 of the Housing Benefit Regulations(46), the amount of such increase;

(e) during the relevant year an amount is recovered in relation to an overpayment of a rebate or allowance which was caused by departmental error, within the meaning of article 10(4), the amount so recovered where the overpayment had occurred and been discovered in a year earlier than the relevant year;

(f) during the relevant year a fraudulent overpayment, within the meaning of article 10(5), is identified, the amount of the overpayment, but only to the extent that the amount of overpayment or any part of it has not been deducted from qualifying expenditure under article 4 of the 1994 Order, the 1995 Order or the 1996 Order, as the case may be;

(g) subject to sub-paragraphs (e) and (f), during the relevant year it is discovered that an overpayment of rebate or allowance has been made, the amount of such overpayment, but only to the extent that—

(i) the amount of such overpayment or any part of it has not been deducted from qualifying expenditure under article 3 of the Housing Benefit (Subsidy) Order 1989(47) or of the Housing Benefit (Subsidy) Order 1990(48) or under article 4 of respectively the 1991 Order, the 1992 Order, the 1993 Order, the 1994 Order, the 1995 Order or the 1996 Order, as the case may be; and

(ii) the amount of the overpayment or any part of it does not include an amount to which paragraph (15) of regulation 72 of the Housing Benefit Regulations or paragraph (7) of article 2 of the Community Charge Benefits (Transitional) Order 1989(49), or as the case may be, paragraph (18) of regulation 59 of the Housing Benefit (Community Charge Rebates) (Scotland) Regulations 1988(50) (time and manner in which claims are to be made) applied;

(h) during the relevant year any instrument of payment issued by an authority during that year is returned to that authority without being presented for payment or is found by that authority to have passed its date of validity without being presented for payment, the amount of any such instrument;

(i) during the year an amount is recovered in respect of which subsidy was paid pursuant to paragraph 6(2) of Schedule 6 to the 1996 Order, the amount so recovered where the payment on account was made in a year earlier than the relevant year.

(2) Subject to paragraph (3), no deduction shall be made under sub-paragraph (1)(a) in a case where the eligible rent for a tenant has been increased in a case to which that sub-paragraph would apply but—

(a) any such services, facilities or rights (“improvements”)—

(i) relate solely to the physical needs of the property in question or the needs of that tenant; and

(ii) the increased rent in relation to such improvements is reasonable;

(b) the tenant was eligible whether or not he was a beneficiary; and

(c) the authority has not let properties, to which they intend to make improvements, either in the relevant year or in the two years preceding that year, solely or largely to beneficiaries.

(3) In paragraph (2), “beneficiary” has the meaning it is given for the purposes of article 6 by paragraph (8) of that article and, in the case of a new authority, the words “or in the two years preceding that year” shall be omitted from sub-paragraph (c).

(4) Where in relation to any amount of a rebate or allowance a deduction falls to be made under two or more of article 8(5), article 9(4), paragraph 7 of Schedule 6 or the sub-paragraphs of paragraph (1), as the case may be, only the higher or highest, or, where the amounts are equal, only one amount, shall be deducted.

Deduction from housing benefit subsidy

12.  Where during the relevant year it is found by an authority that any instrument of payment issued by it during the period of 8 years ending on 31st March 1996 has been returned to that authority without having been presented for payment or has passed its date of validity without having been presented for payment, the deduction referred to in article 4(1) shall be the amount of any housing benefit subsidy that has been paid to that authority in respect of any such instrument.

Additions to and deductions from housing benefit subsidy in respect of benefit savings

13.—(1) Where this article applies, the addition to or, as the case may be, deduction from housing benefit subsidy referred to in article 4(1) shall be calculated in accordance with Part II of Schedule 9.

(2) This article applies in the case of an authority to which paragraph 2 of Part II of Schedule 9 applies and in such a case the addition shall be calculated in accordance with that paragraph.

(3) This article also applies in the case of an authority to which paragraph 4 of Part II of Schedule 9 applies and in such a case the deduction shall be calculated in accordance with that paragraph.

PART III COUNCIL TAX BENEFIT SUBSIDY

Interpretation of Part III

14.—(1) In this Part of this Order, unless the context otherwise requires—

“council tax benefit subsidy” means subsidy under section 140(51) of the Act;

“the Community Charge Benefits Regulations” means the Community Charge Benefits (General) Regulations 1989(52);

“the Council Tax Benefit Regulations” means the Council Tax Benefit (General) Regulations 1992(53);

“excess benefit” includes excess benefits under the Community Charge Benefits Regulations as well as excess benefit under the Council Tax Benefit Regulations,

and other expressions used in this Part of this Order and in the Council Tax Benefit Regulations shall have the same meanings in this Order as in those Regulations.

(2) In this part of this Order “council tax benefit qualifying expenditure” means the total of council tax benefit, including any extended payments, lawfully granted by the appropriate authority during the relevant year, less—

(a) the deductions specified in article 19; and

(b) where, under subsection (6) of section 139 of the Act(54) (arrangements for council tax benefit), the appropriate authority has modified any part of the scheme administered by it, any amount by which the total of the council tax benefit which it granted under the scheme during the relevant year exceeds the total of those which it would have granted if the scheme had not been so modified.

Amount of council tax benefit subsidy

15.  The amount of an appropriate authority’s council tax benefit subsidy for the relevant year—

(a) for the purposes of section 140(2)(55) of the Act (subsidy in respect of council tax benefit) shall be the amount or total of the amounts calculated in accordance with article 16;

(b) for the purposes of section 140(5)(56) of the Act (subsidy in respect of the costs of administering council tax benefit) may include an additional sum in respect of the costs of administering council tax benefit calculated in accordance with Schedules 1 and 2.

Council tax benefit

16.—(1) Subject to paragraph (2), for the purposes of section 140(2) of the Act, an appropriate authority’s council tax benefit subsidy for the relevant year shall be—

(a) in the case of an appropriate authority to which article 17 does not apply, 95 per cent. of its council tax benefit qualifying expenditure;

(b) in the case of an appropriate authority to which that article is relevant an amount equal to the aggregate of—

(i) 95 per cent. of so much of its council tax benefit qualifying expenditure as remains after deducting the amount of expenditure attributable to the council tax benefit to which that article applies; plus

(ii) the appropriate amount calculated in respect of the council tax benefit under that article,

plus, in each case, the additions, where applicable, under articles 18 and 21(2), less, in each case, the deductions, where applicable, under articles 20 and 21(3).

(2) Where, during the relevant year there has been a period overrun in respect of council tax benefit, that appropriate authority’s council tax benefit subsidy for that year shall be adjusted by deducting from the subsidy otherwise due under this article an amount equal to the percentage, as calculated in accordance with paragraph 4 of Schedule 4, of the council tax benefit qualifying expenditure for that authority.

Backdated benefit

17.—(1) Subject to paragraph (2), where—

(a) during the relevant year an appropriate authority has under paragraph (16) of regulation 62 of the Council Tax Benefit Regulations (time and manner in which claims are to be made)(57), treated any claim for council tax benefit as made on a day earlier than that on which it was made (“backdated”); and

(b) any part of that appropriate authority’s council tax benefit qualifying expenditure is attributable to such earlier period;

for the purposes of article 16(1)(b)(ii), the appropriate amount for the relevant year in respect of such part shall be 50 per cent. of the council tax benefit qualifying expenditure so attributable.

(2) This article shall not apply in a case—

(a) to which article 18(1)(b)(ii) applies; or

(b) where—

(i) the person claiming fell within regulation 4A(4)(g) of the Council Tax Benefit Regulations(58);

(ii) he made that claim on or after 21st June 1996, but before 24th July 1996; and

(iii) an authority has backdated that claim.

Additions to council tax benefit subsidy

18.—(1) Subject to paragraphs (8) and (9), the additions referred to in article 16 are—

(a) where, following the loss, destruction or non-receipt, or alleged loss, destruction or non-receipt of original instruments of payment, an appropriate authority makes duplicate payments and the original instruments have been or are subsequently encashed, an amount equal to 25 per cent. of the amount of the duplicate payments;

(b) subject to paragraphs (2) and (3), where it is discovered by an appropriate authority, during the relevant year, that excess benefits have been allowed and an amount is to be deducted under article 20 in relation to those excess benefits, an amount equal to—

(i) where the excess benefits are allowed in consequence of a departmental error, 95 per cent. of that part of the excess benefits which have not been recovered by the appropriate authority;

(ii) where fraudulent excess benefits are allowed 95 per cent. of the excess benefits; or

(iii) except where head (i) or (ii) above applies, 25 per cent. of the excess benefits;

(c) where, during the relevant year, it is discovered that excess benefit in respect of which a deduction was made under article 19 of the 1994 Order, the 1995 Order or the 1996 Order, as the case may be, (other than a deduction under sub-paragraph (1)(c) of that article) was fraudulent excess benefit, the difference, if any, between 95 per cent. of any such excess benefit and the amount of any council tax benefit subsidy that has been paid to that authority in respect of that excess benefit.

(2) The amount under paragraph (1)(b) shall not include an amount in relation to—

(a) any excess benefit allowed in consequence of an error of the appropriate authority making the payment;

(b) any technical excess benefit; or

(c) any excess benefit allowed and discovered in the relevant year, as a result of a reduction in the amount of council tax a person is liable to pay.

(3) Where excess benefits are allowed in consequence of departmental error, but some or all of that excess benefit is recovered by the appropriate authority, no addition shall be applicable to that authority in respect of the amount so recovered.

(4) In paragraph (2)(a) “excess benefit allowed in consequence of an error of the appropriate authority making the payment” means excess benefits in consequence of a mistake made or something done or omitted to be done by the appropriate authority where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute to that mistake, act or omission.

(5) In paragraph (1)(b)(i), in paragraph (3) and in article 19(1)(b) “excess benefits allowed in consequence of departmental error” means excess benefits in consequence of a mistake made or something done or omitted to be done by an officer of the Department of Social Security or the Department for Education and Employment acting as such, or a decision of an adjudication officer, social security appeal tribunal or Social Security Commissioner appointed in accordance with sections 38(1), 40(1), 51(1) and 52(1) of the Act (appointment of adjudication officers, chairmen and members of social security appeal tribunals and Commissioners) where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission.

(6) In paragraph (2)(b) “technical excess benefit” means that part of excess benefits which occurs as a result of benefits being allowed in advance and—

(a) a change of circumstances reduces or eliminates entitlement to those benefits; or

(b) the authority subsequently identifies recoverable excess benefits which arise otherwise than from a change in circumstances,

but shall not include any part of those excess benefits occurring before the benefit week next following the week in which the change is disclosed to the appropriate authority or it identifies those excess benefits.

(7) In paragraph (1)(b)(ii) and (c), in article 19(1)(c) and in paragraph 1 of Schedule 9 “fraudulent excess benefit” means excess benefit in respect of a period falling wholly or partly after 31st March 1993 and which—

(a) is so classified by an officer of the appropriate authority, designated for that purpose by the authority, after that date; and

(b) occurs as a result of the award or continuation of benefit arising in consequence of—

(i) a breach of section 112 of the Act (false representations for obtaining benefit); or

(ii) knowingly failing to report a relevant change of circumstances, contrary to the requirements of regulation 63 of the Community Charge Benefits Regulations or, as the case may be, of regulation 65 of the Council Tax Benefit Regulations (duty to notify change of circumstances), with intent to obtain or retain such benefit.

(8) Except for paragraphs (1)(b)(ii), (1)(c) and (7), this article shall not apply to an award of benefit to which paragraph (18) of regulation 60 of the Community Charge Benefits Regulations or paragraph (16) of regulation 62 of the Council Tax Benefit Regulations (time and manner in which claims are to be made)(59), as the case may be, applies.

(9) Any reference in this article to excess benefits shall not include any council tax benefit for any period overrun or any period immediately following expiry of the specified period determined under regulation 57(60) of the Council Tax Benefit Regulations (benefit period) except for so much of any such benefit to which the claimant would not have been entitled had a claim for that period been duly made and determined.

Deductions to be made in calculating subsidy in respect of council tax benefit

19.—(1) The deductions referred to in article 14(2) are, subject to paragraph (2), of the following amounts, namely where—

(a) an appropriate authority has by virtue of regulation 51(5) or 54(4) of the Council Tax Benefit Regulations (increases of weekly amounts for exceptional circumstances)(61) increased benefit in exceptional circumstances, the amount attributable to that increase;

(b) during the relevant year an amount is recovered in relation to excess benefits allowed in consequence of departmental error, within the meaning of article 18(5), and where the excess benefit had occurred and been discovered in one or more of the years ending 31st March 1991, 31st March 1992, 31st March 1993, 31st March 1994, 31st March 1995 or 31st March 1996, as the case may be, the amount so recovered;

(c) during the relevant year fraudulent excess benefit, within the meaning of article 18(7), is identified, the amount so identified, but only to the extent that the amount of the excess benefits or any part of it has not been deducted from council tax benefit qualifying expenditure under article 19 of the 1994 Order, the 1995 Order or the 1996 Order, as the case may be;

(d) subject to sub-paragraphs (b) and (c), during the relevant year it is discovered by an appropriate authority that excess benefits have been allowed, the amount of the excess benefits, but only to the extent that—

(i) the amount of the excess benefits or any part of it has not been deducted from community charge benefit qualifying expenditure under article 15 of the 1991 Order or article 16 of the 1992 Order or the 1993 Order or from council tax benefit qualifying expenditure under article 19 of the 1994 Order, the 1995 Order or the 1996 Order, as the case may be; and

(ii) the amount of the excess benefits or any part of it does not include an amount payable pursuant to either paragraph (18) of regulation 60 of the Community Charge Benefits Regulations or paragraph (16) of regulation 62 of the Council Tax Benefit Regulations (time and manner in which claims are to be made);

(e) during the relevant year any instrument of payment which was issued by an appropriate authority during that year is returned to that authority without being presented for payment or is found by that authority to have passed its date of validity without being presented for payment, the amount of any such instrument.

(2) Where in relation to any amount of benefit a deduction falls to be made under two or more sub-paragraphs of paragraph (1), only the higher or highest or, where the amounts are equal, only one amount shall be deducted.

Deduction from council tax benefit subsidy

20.  Where during the relevant year it is found by an appropriate authority that any instrument of payment issued by it during the period of 6 years ending on 31st March 1996 has been returned to that authority without having been presented for payment or has passed its date of validity without having been presented for payment, the deduction referred to in article 16(1) shall be the amount of any council tax benefit subsidy or community charge benefit subsidy that has been paid to that authority in respect of any such instrument.

Additions to and deductions from council tax benefit subsidy in respect of benefit savings

21.—(1) Where this article applies, the addition to or, as the case may be, deduction from council tax benefit subsidy referred to in article 16(1) shall be calculated in accordance with Part III of Schedule 9.

(2) This article applies in the case of an appropriate authority to which paragraph 5 of Part III of Schedule 9 applies and in such a case the addition shall be calculated in accordance with that paragraph.

(3) This article also applies in the case of an appropriate authority to which paragraph 7 of Part III of Schedule 9 applies and in such a case the deduction shall be calculated in accordance with that paragraph.

Signed by authority of the Secretary of State for Social Security.

A.J.B. Mitchell

Parliamentary Under-Secretary of State,

Department of Social Security

19th March 1997

We consent,

Patrick McLoughlin

Roger Knapman

Two of the Lords Commissioners of Her Majesty’s Treasury

19th March 1997