‘Passporting’ to maximum housing benefit

 

Simon Osborne reviews the rules under which housing benefit (HB) claimants can be ‘passported’ to maximum HB.

Under the passporting rules, a claimant is automatically treated as having nil income and capital for HB purposes. In short, the passporting is through the HB means test, so that there is no need for a calculation before the maximum amount of HB to which the claimant is otherwise entitled is awarded. The passporting is triggered by the claimant’s entitlement to:

These benefits are referred to in this article as the ‘passporting benefits’.

It is important to remember that the passporting is only for having nil income and capital. No other entitlement rules are automatically satisfied. So, for example, a claimant who would be passported to maximum HB still has to satisfy the usual rules about being eligible for rent, having a tenancy on a commercial basis, etc. Her/his eligible rent is still set using the appropriate rules (eg, under the local housing allowance rules) and may still be reduced by non-dependant deductions. The claimant’s maximum HB and other specified benefits may still be such as to trigger the application of the benefit cap.

Under a completely separate rule, a claimant in receipt of IS or income-related ESA cannot be a ‘person from abroad’ for HB purposes – ie, s/he cannot be held not to satisfy the right to reside or habitual residence tests. The same applies to a claimant in receipt of income-based JSA, but only where s/he has a right to reside which is other than, among others, that of a jobseeker or family member of a jobseeker.1 Reg 10(3B)(k) and (l) HB Regs In short, there is limited passporting through the right to reside and habitual residence tests for recipients of certain other means-tested benefits.

The relevant rules are set out in the parts of the Housing Benefit Regulations 2006 that deal with the assessment of income and capital – in particular, where a claimant’s income and capital are to be ignored.

Specifically, the whole of a claimant’s income (including earnings) is to be ignored where s/he is ‘on’ IS, income-based JSA, income-related ESA or UC, or where s/he or her/his partner are in ‘receipt of’ the guarantee credit of PC.2 Sch 4 para 12 and Sch 5 para 4 HB Regs; reg 26 HB (SPC) Regs Similarly, the whole of a claimant’s capital is to be ignored where s/he is ‘on’ IS, income-based JSA, income-related ESA or UC, or where s/he or her/his partner are in ‘receipt of’ the guarantee credit of PC.3 Sch 6 para 5 HB Regs; reg 26 HB (SPC) Regs

For the purposes of these rules, being ‘on’ income-based JSA includes when it is not paid because of a sanction, during waiting days and when it is not paid because of the benefit offence rules. Being ‘on’ income-related ESA includes when it is not paid because of a disqualification and during waiting days. Being ‘on’ UC includes any day of entitlement, even if not in payment.4 Reg 3(3), (3A) and (3B) HB Regs; reg 2(3) and (3A) HB (SPC) Regs

Confusion often arises about the extent to which a local authority making a HB decision is bound by the DWP’s decision about the claimant’s entitlement to a passporting benefit. The situation has been clarified by caselaw.

Firstly, the general rule is that a local authority is bound by the DWP awarding entitlement to a passporting benefit, so that the local authority generally must then ignore the whole of the claimant’s income and capital. This was established by the decision of the High Court in R v Penwith District Council ex parte Menear [1991] 24 HLR 115, QBD.

The precise meaning of Menear has subsequently been clarified by Judge Wright in AM v Chesterfield Borough Council (HB) [2013] 245 (AAC) (Bulletin 237, p13). There, the First-tier Tribunal erred in thinking that Menear meant that even where the claimant was not entitled to IS, both the local authority and the tribunal were bound by the DWP’s finding that the claimant was living together with someone as husband and wife. Rather, Menear was authority for the proposition that where the claimant was on IS, then all of her and her partner’s earnings, income and capital were to be disregarded. But there was nothing that provided that a local authority be similarly bound by a DWP decision, where that decision was that the claimant was not entitled to IS. The only sense in which the local authority (and tribunal) was bound was by the finding that the claimant was not entitled to IS – ie, so that the passporting rules could not be applied and an assessment of income and capital had to be made. Also, even where Menear did apply, the binding was limited to findings about income and capital, not to any other issue of fact.

The two exceptions to the general rule established by Menear and clarified by AM v Chesterfield Borough Council (HB) are where:

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