The Rent Officers (Housing Benefit Functions) (Scotland) Order 1997

Citation and commencement

1.—(1) This Order may be cited as the Rent Officers (Housing Benefit Functions) (Scotland) Order 1997.

(2) This Order shall come into force for the purposes of article 8 on 18th August 1997 and for all other purposes on 3rd September 1997.

Interpretation

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

“assured tenancy” has the same meaning as in Part II of the Housing (Scotland) Act 1988, except that it includes a tenancy which would be an assured tenancy but for paragraph 9 of Schedule 4 to that Act;

“child” means a person under the age of 16;

“determination” means a determination made in accordance with Part I or IV of Schedule 1 to this Order;

“dwelling” means any residential accommodation whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises;

“hostel” has the same meaning as in regulation 12A of the 1987 Regulations(1);

“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(2);

“occupier” means a person (whether or not identified by name) who is stated, in the application for the determination, to occupy the dwelling as his home;

“redetermination” means a redetermination made in accordance with article 4;

“relevant time” means the time the application for the determination is made or, if earlier, the tenancy ends;

“rent” means any of the periodical payments referred to in regulation 10(1) of the 1987 Regulations(3);

“size criteria” means the standards relating to bedrooms and rooms suitable for living in specified in Schedule 2 to this Order;

“tenancy” includes any other right of occupancy and a prospective tenancy or right of occupancy and references to a tenant, a landlord or any other expression appropriate to a tenancy shall be construed accordingly; and

“the 1987 Regulations” means the Housing Benefit (General) Regulations 1987(4).

(2) In this Order any reference to a notice or application is to a notice or application in writing, except in a case where the recipient consents (whether generally or specifically) to the notice or application being transmitted by electronic means.

Determinations

3.—(1) Subject to articles 5 and 6, where a local authority, in accordance with regulations made under section 136(2) or (3) of the Social Security Administration Act 1992(5), applies to a rent officer for determinations in respect of a tenancy of a dwelling, a rent officer shall–

(a) make the determinations in accordance with Part I of Schedule 1 (determinations);

(b) comply with Part II of Schedule 1 when making the determinations (assumptions etc.); and

(c) give notice in accordance with Part III of Schedule 1 (notifications).

(2) A rent officer for each registration area (within the meaning of section 43 of the Rent (Scotland) Act 1984(6)) on the first working day of each month shall–

(a) make determinations in accordance with Part IV of Schedule 1 (indicative rent levels) in the registration area;

(b) comply with paragraph 8(2) of Part II of Schedule 1 (assumptions etc.) when making the determinations; and

(c) give to the local authority notice of the determinations relating to its area when they have been made.

Redeterminations

4.  Subject to articles 5 and 6, if the local authority applies to a rent officer for a redetermination, a rent officer shall make the redetermination and give notice in accordance with Schedule 3 and a rent officer whose advice is sought as provided for in that Schedule shall give that advice.

Insufficient information

5.  If a rent officer needs further information in order to make a determination under article 3(1) or a redetermination under article 4, he shall serve notice on the local authority requesting that information and article 3(1) or, as the case may be, article 4 shall not apply to the making of that determination or redetermination until he receives the information.

Exceptions

6.—(1) No determination or redetermination shall be made if the application for it is withdrawn.

(2) No determination shall be made under paragraph 3, 4 or 5 of Part I of Schedule 1 if the tenancy is of residential accommodation, within the meaning of regulation 7(3) of the 1987 Regulations(7), or in a hostel.

(3) No determination shall be made under paragraph 5 of Part I of Schedule 1 unless the local authority states in the application that the claimant is, or may be, a young individual (which has the same meaning as in the 1987 Regulations(8)).

(4) If the rent officer becomes aware that an application is not one which gives rise to a duty to make a determination or a redetermination, the rent officer shall give the local authority notice to that effect.

Special cases

7.—(1) This Order shall apply as specified in Schedule 4 in relation to–

(a) mooring charges payable for a houseboat;

(b) payments in respect of the site on which a caravan or a mobile home stands; or

(c) payments under a rental purchase agreement.

(2) Terms used in paragraph (1) have the same meaning in this article and in Schedule 4 as they have in regulation 10(1) of the 1987 Regulations(9).

(3) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support charges for general counselling or any other support services which are eligible for housing benefit solely by virtue of paragraph 1(f)(iii) of Schedule 1 to the 1987 Regulations(10) (landlord’s support services: supported accommodation) or solely by virtue of that provision and paragraph 1(f)(ii) of that Schedule, the rent officer shall assume when making a determination or a redetermination that–

(a) the services were not to be provided or made available; and

(b) the rent payable under the tenancy at the relevant time is such amount as is specified in the application as the rent which would have been payable under the tenancy at that time if those items were not to be provided or made available.

(4) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support services and the charges–

(a) are eligible for housing benefit by virtue of paragraph 1(f)(iii) of Schedule 1 to the 1987 Regulations, or that provision and paragraph 1(f)(ii) of that Schedule; and

(b) are also eligible for housing benefit by virtue of paragraph 1(f)(i) of that Schedule (support services: other exceptions),

the rent officer shall include in the notice to the local authority, required under article 3(1)(c), a statement of the amount of the rent payable for the tenancy (which has the same meaning as in paragraph 3(1) of Schedule 1 to this Order) which relates to those charges.

Amendment to 1995 Order

8.—(1) The Rent Officers (Additional Functions) (Scotland) Order 1995(11) shall be amended by the insertion at the end of article 6 (special cases) of the following:–

“(3) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support services which are eligible for housing benefit solely by virtue of paragraph 1(f)(iii) of Schedule 1 to the 1987 Regulations (landlord’s support services: supported accommodation) or solely by virtue of that provision and paragraph 1(f)(ii) of that Schedule, the rent officer shall assume when making a determination or a redetermination that–

(a) the services were not to be provided or made available; and

(b) the rent payable under the tenancy at the relevant time is such amount as is specified in the application as the rent which would have been payable under the tenancy at that time if those items were not to be provided or made available.

(4) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support services and the charges–

(a) are eligible for housing benefit by virtue of paragraph 1(f)(iii) of Schedule 1 to the 1987 Regulations, or that provision and paragraph 1(f)(ii) of that Schedule; and

(b) are also eligible for housing benefit by virtue of paragraph 1(f)(i) of that Schedule (support services: other exceptions),

the rent officer shall include in the notice to the local authority, required under article 3(1)(c), a statement of the amount of the rent payable for the tenancy (which has the same meaning as in paragraph 3(1) of Schedule 1 to this Order) which relates to those charges.”.

(2) The amendment made by paragraph (1) above does not have effect in a case where an application for a determination is made before 18th August 1997.

Revocations and application

9.—(1) Subject to paragraph (2), article 8 of this Order and the Orders specified in Schedule 5 are hereby revoked.

(2) Nothing in articles 2 to 7 has effect in a case where an application for a determination is made before 3rd September 1997 and, in such a case, the Rent Officers (Additional Functions) (Scotland) Order 1995 shall continue to have effect.

Malcolm Chisholm

Parliamentary Under Secretary of State, Scottish Office

St Andrew’s House,

Edinburgh

15th August 1997