The Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No 2) Regulations 2005

Amendment of the Council Tax Benefit Regulations

2.—(1) Subject to paragraph (2), the Council Tax Benefit Regulations shall be amended in accordance with the following provisions of this regulation.

(2) The amendments made by paragraphs (6) and (11) are to the Council Tax Benefit Regulations as modified in their application to persons to whom regulation 12 of the State Pension Credit Regulations applies.

(3) In regulation 2(2) (interpretation) the words “and regulation 4C(1) of these Regulations” shall be omitted.

(4) Regulation 4B(2) (circumstances in which a person is or is not to be treated as occupying a dwelling as his home) shall be omitted.

(5) In regulation 4C for paragraphs (1) to (5) there shall be substituted—

“(1) Subject to paragraph (2), a person who is throughout any day referred to in section 131(3)(a) of the Contributions and Benefits Act 1992 absent from the dwelling referred to in that section, shall be a prescribed person for the purposes of section 131(3)(b) of that Act in relation to that day.

(2) A person shall not, in relation to any day which falls within a period of temporary absence from that dwelling, be a prescribed person under paragraph (1).

(3) In paragraph (2), a “period of temporary absence” means—

(a) a period of absence not exceeding 13 weeks, beginning with the first whole day on which a person resides in residential accommodation where and for so long as—

(i) the person resides in that accommodation,

(ii) the part of the dwelling in which he usually resided is not let or sub-let, and

(iii) that period of absence does not form part of a longer period of absence from the dwelling of more than 52 weeks,

where he has entered the accommodation for the purpose of ascertaining whether it suits his needs and with the intention of returning to the dwelling if it proves not to suit his needs;

(b) a period of absence not exceeding 13 weeks, beginning with the first whole day of absence from the dwelling, where and for so long as—

(i) the person intends to return to the dwelling,

(ii) the part of the dwelling in which he usually resided is not let or sub-let, and

(iii) that period is unlikely to exceed 13 weeks; and

(c) a period of absence not exceeding 52 weeks, beginning with the first whole day of that absence, where and for so long as—

(i) the person intends to return to the dwelling,

(ii) the part of the dwelling in which he usually resided is not let or sub-let,

(iii) the person is a person to whom paragraph (4) applies, and

(iv) the period of absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period.

(4) This paragraph applies to a person who is—

(a) detained in custody on remand pending trial or required, as a condition of bail, to reside—

(i) in a dwelling, other than the dwelling referred to in paragraph (1), or

(ii) in premises approved under section 9 of the Criminal Justice and Court Services Act 2000(3),

or, detained in custody pending sentence upon conviction;

(b) resident in a hospital or similar institution as a patient;

(c) undergoing, or his partner or his dependent child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation;

(d) following, in the United Kingdom or elsewhere, a training course;

(e) undertaking medically approved care of a person residing in the United Kingdom or elsewhere;

(f) undertaking the care of a child whose parent or guardian is temporarily absent from the dwelling normally occupied by that parent or guardian for the purpose of receiving medically approved care or medical treatment;

(g) a person who is, in the United Kingdom or elsewhere, receiving medically approved care provided in accommodation other than residential accommodation;

(h) a student;

(i) a person who is receiving care provided in residential accommodation other than a person to whom paragraph (3)(a) applies; or

(j) a person who has left the dwelling he resides in through fear of violence, in that dwelling, or by a person who was formerly a member of the family of the person first mentioned.

(5) This paragraph applies to a person who is—

(a) detained in custody pending sentence upon conviction or under a sentence imposed by a court (other than a person who is detained in hospital under the provisions of the Mental Health Act 1983(4), or, in Scotland, under the provisions of the Mental Health (Scotland) Act 1984(5) or the Criminal Procedure (Scotland) Act 1995(6)); and

(b) on temporary release from such detention in accordance with Rules made under the provisions of the Prison Act 1952(7) or the Prisons (Scotland) Act 1989(8).

(5A) Where paragraph (5) applies to a person, then, for any day when he is on temporary release—

(a) if such temporary release was immediately preceded by a period of temporary absence under paragraph (3)(b) or (c), he shall be treated, for the purposes of paragraph (1), as if he continues to be absent from the dwelling, despite any return to the dwelling;

(b) for the purposes of paragraph (4)(a), he shall be treated as if he remains in detention;

(c) if he does not fall within sub-paragraph (a), he shall be a prescribed person for the purposes of section 131(3)(b).”.

(6) In regulation 28(9)(notional income)—

(a) in paragraph (1)(a), immediately before the words “the amount”, the words “subject to 28(1A),” shall be inserted;

(b) after paragraph (1) the following paragraphs shall be inserted—

“(1A) Paragraph (1)(a) shall not apply to the following where entitlement has been deferred—

(a) a Category A or Category B retirement pension payable under sections 43 to 55 of the Contributions and Benefits Act 1992;

(b) a shared additional pension payable under section 55A of that Act(10); or

(c) graduated retirement benefit payable under sections 36 and 37 of the National Insurance Act 1965(11).

(1B) For the purposes of paragraph (1A), entitlement has been deferred—

(a) in the case of a Category A or Category B pension, in the circumstances specified in section 55(3) of the Contributions and Benefits Act 1992(12);

(b) in the case of a shared additional pension, in the circumstances specified in section 55C(3) of that Act; and

(c) in the case of graduated retirement benefit, in the circumstances specified in section 36(4) and (4A) of the National Insurance Act 1965(13).”.

(7) Until 6th April 2005 the references in regulation 28(1B) (as inserted by paragraph (6)) to section 55(3) of the Social Security Contributions and Benefits Act 1992, section 55C(3) of that Act and section 36(4) and (4A) of the National Insurance Act 1965 shall have effect as if they were references to section 55(2) of the Social Security Contributions and Benefits Act 1992, section 55C(1) of that Act and section 36(4) and (7) of the National Insurance Act 1965 respectively.

(8) In regulation 53ZB(14) (extended payments (severe disablement allowance and incapacity benefit)) in paragraphs (1)(a)(i) and (6)(a)(i), for the words “housing benefit” there shall be substituted the words “council tax benefit”.

(9) In regulation 59B(5A)(15) (change of circumstances where state pension credit in payment) for the words “housing benefit” there shall be substituted the words “council tax benefit”.

(10) In Schedule 1 (applicable amounts), paragraph 14A(2)(a)(16) shall be omitted.

(11) In Schedule 4A (amounts to be disregarded in the calculation of income other than earnings) after paragraph 23 there shall be added—

“24.   Except in the case of income from capital specified in Part II of Schedule 5ZA, any actual income from capital.”

(1)

Regulation 4C was inserted by S.I. 1995/625.

(2)

Regulation 4B was inserted by S.I. 1995/560 and amended by S.I. 1998/563.

(3)

2000 c. 43.

(4)

1983 c. 20.

(5)

1984 c. 36.

(6)

1995 c. 46.

(7)

1952 c. 52.

(8)

1989 c. 45.

(9)

Regulation 28 was amended by S.I. 2004/290.

(10)

Sections 55A to C were inserted by paragraph 3 of Schedule 6 to the Welfare Reform and Pensions Act 1999 (c. 30).

(11)

1965 c. 51; sections 36 and 37 of the National Insurance Act 1965 were preserved in modified form by S.I. 1978/393.

(12)

Section 55 was substituted by section 134(3) of the Pensions Act 1995 (c. 26) and again by section 297(1) of the Pensions Act 2004 (c. 35).

(13)

Section 36(4) is to be replaced by a new section 36(4) and (4A) by S.I. 2005/454 as from 6th April 2005.

(14)

Regulation 53ZB was inserted by S.I.2004/319.

(15)

Regulation 59B was inserted by S.I. 2003/325 and paragraph (5A) was inserted into regulation 59B by S.I. 2004/2327.

(16)

Paragraph (14A) was inserted by S.I. 2000/2629.