HOUSING, ENGLAND AND WALES Citation, commencement and interpretation 1 1 This Order which may be cited as the Housing Benefit (Subsidy) Order 1990 shall come into force on 20th April 1990. 2 In this Order, unless the context otherwise requires– “ the Act ” means the Social Security Act 1986; “allowance” means a rent allowance; “authority” means a housing, rating or local authority or, as the case may be, in Scotland, a levying authority; “rebate” means a rent, rate or community charge rebate; “relevant date” has the same meaning as in Schedule 4; “relevant year” means the year ending 31st March 1990; “scheme” means the housing benefit scheme as defined in section 28 of the Act; “subsidy” means subsidy under section 30(1) or (1A) of the Act (rate rebate, rent rebate, rent allowance and community charge rebate subsidy) ; “ the Regulations ” mean the Housing Benefit (General) Regulations 1987 ; “the Rent Officers Order ” means the Rent Officers (Additional Functions) Order 1989 or, as the case may be, the Rent Officers (Additional Functions) (Scotland) Order 1989 ; “the Scottish Regulations ” means the Housing Benefit (Community Charge Rebates) (Scotland) Regulations 1988 ; “termination date” has the same meaning as in Schedule 4, and other expressions shall have the same meaning as in the Regulations or, as the case may be, the Scottish Regulations. 3 In this Order “qualifying expenditure” means the total of rebates and allowances granted by the authority during the relevant year, less– a the deductions specified in articles 7 and 13; and b where, under sub-section (6) of section 28 of the Act (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. 4 In this Order, 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, reference in an article or a Schedule to a numbered paragraph is to the paragraph bearing that number in that article or that Schedule. Amount of subsidy 2 The amount of an authority’s subsidy for the relevant year– a for the purposes of section 30(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 3; b for the purposes of section 30(3) of the Act (subsidy in respect of the costs of administering housing benefit) may include an additional sum in respect of the cost of administering housing benefit calculated in accordance with Schedule 1. Rebates and allowances 3 1 For the purposes of section 30(2) of the Act, an authority’s subsidy for the relevant year shall, subject to paragraph (2), be– a in the case of an authority to which articles 4, 5, 6, 8, 9, 10 and 11 do not apply, 97 per cent. of its qualifying expenditure; b in the case of an authority to which at least one of those articles is relevant– i 97 per cent. of so much of its qualifying expenditure as remains after deducting the amount of 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 addition, where applicable, under article 12. 2 Where the authority is the Scottish Homes or a new town corporation in Scotland, its 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, 3.5 per cent. of its qualifying expenditure but subject to the relevant maximum specified in column (2) of Schedule 2; or b in the case of an authority to which sub-paragraph (b) of paragraph (1) applies, 3.5 per cent. of so much of its 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 2. Backdated payments 4 1 Subject to paragraph (2), where– a during the relevant year an authority has, under paragraph (15) of regulation 72 of the Regulations or, as the case may be, paragraph (18) of regulation 59 of the Scottish Regulations (time and manner in which claims are to be made), treated any claim for a rebate or allowance as made on a day earlier than that on which it is made; and b any part of that authority’s qualifying expenditure is attributable to such earlier period, for the purposes of article 3(1)(b), the appropriate amount for the relevant year in respect of such part shall be 25 per cent. of the qualifying expenditure so attributable. 2 This article shall not apply in a case to which article 9 applies. Disproportionate rent increase 5 1 Where the average rent increase of an authority’s Category A tenants is greater than the average rent increase of their Category B tenants, for the purposes of article 3(1)(b), the appropriate amount for such part of the qualifying expenditure as is attributable to rent rebates granted during the relevant year shall be– a 25 per cent. of that portion of the qualifying expenditure as is determined in accordance with paragraph (3); and b 97 per cent. of the balance. 2 For the purposes of paragraph (1), the average rent increase shall be determined by comparing the average rents of Category A tenants or, as the case may be, Category B tenants on the first relevant date with their average rent on the second relevant date. 3 For the purposes of paragraph (1)(a), the portion of the qualifying expenditure shall be determined in accordance with the formula– A - ( A × B C ) Where– A is the total of rent rebates granted by the authority to Category A tenants and other tenants during the relevant year; B is the amount calculated in accordance with the formula– D E × 100 C is the amount calculated in accordance with the formula– F G × 100 D is the average rent for Category B tenants on the second relevant date; E is the average rent for Category B tenants on the first relevant date; F is the average rent for Category A tenants on the second relevant date; G is the average rent for Category A tenants on the first relevant date. 4 In this article– “Category A tenants” means tenants of the authority who on the first and second relevant dates are in receipt of rent rebates and reside at the same address on both dates; “Category B tenants” means tenants of the authority who are not in receipt of rent rebates on the first and second relevant dates but reside at the same address on both dates; “first relevant date” means a date, other than a day falling in a rent free period, determined by the authority occurring in March 1989; and “second relevant date” means the same date occurring in March 1990 but if that date falls in a rent free period the nearest date in March 1990 to that date which is not in a rent free period; “rent” means either– the payments specified in sub-paragraphs (a) to (j) in paragraph (1) of regulation 10 of the Regulations (rent); or the eligible rent, as the authority may determine, provided that wherever the expression “rent” occurs in paragraphs (1) to (3) it has the same meaning throughout. 5 This article shall not apply in a case to which article 9 applies. Treatment of high rents 6 1 Subject to paragraphs (3) and (4), where any part of the qualifying expenditure of an authority within an area listed in column 1 of Schedule 3 is attributable to any allowance 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 for the purposes of article 3(1)(b), the appropriate amount in respect of that allowance shall be calculated in accordance with paragraph (2). 2 Where paragraph (1) applies– a if 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 the qualifying expenditure attributable to such allowance; b if the allowance granted is greater than the excess of the eligible rent over the threshold, the appropriate amount shall be the aggregate of 25 per cent. of the portion of the qualifying expenditure attributable to such allowance which is equal to the excess and 97 per cent. of the balance. 3 Paragraph (1) shall not apply to an allowance payable by an authority in respect of– a rents which exceed the threshold and which are registered in respect of a dwelling under Part IV, V or VI of the Rent Act 1977 or Part V, VI or VII of the Rent (Scotland) Act 1984 or which have been determined by a rent assessment committee in respect of a dwelling under Part I of the Housing Act 1988 or Part II of the Housing (Scotland) Act 1988 ; or b rents which exceed the threshold and which have been referred to the rent officer under the Rent Act 1977 or the Rent (Scotland) Act 1984 but not registered by him because he is satisfied the rent is at or below the fair rent level and he has in writing so notified the authority; or c rents which exceed the threshold where the relevant tenancy is one to which, before 15th January 1989, the provisions of sections 56 to 58 of the Housing Act 1980 applied . 4 This article shall not apply in a case to which article 7 or 9 applies. Rent Officers' determinations 7 1 Where this article applies the deductions referred to in article 1(3) are deductions, from allowances granted in respect of the period beginning on the relevant date and ending on the termination date, calculated in accordance with Schedule 4. 2 Subject to article 8, this article applies where– a an authority applies to a rent officer for a determination in relation to a dwelling under the Rent Officers Order; and b the officer makes a determination under that Order. 3 Except where paragraph (4) applies, and subject to article 8, this article applies where an authority could have applied for a determination in relation to a dwelling during the relevant year under Schedule 1 to the Rent Officers Order which a rent officer would have been required to make but the authority fails to apply for the determination. 4 Subject to article 8, this article applies where an authority makes an application to a rent officer for a determination in a pre-commencement case under regulation 12A(5) of the Regulations; and for the purposes of calculating the deduction under this article the assumptions made in paragraph (6) of that regulation shall apply. 5 This article applies where– a the dwelling (A) is in a hostel; and b by virtue of regulation 12A(2) of the Regulations an application for a determination in respect of that dwelling 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). 6 Subject to article 8, this article applies where a rent officer has made a determination in respect of a tenancy of a dwelling and by virtue of paragraph 1 of Schedule 2 to the Rent Officers Order 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. 7 Where a determination as to the rent which a landlord might reasonably be expected to obtain in respect of a dwelling is made by a rent assessment committee following a determination made by a rent officer under paragraph 1 of Schedule 1 to the Rent Officers Order, this article shall cease to apply in so far as it relates to a determination made by a rent officer under paragraph 1 of Schedule 1 to the Rent Officers Order from the date on which the committee’s determination takes effect. Exception to article 7 8 1 This article shall apply in the case of any allowances granted in respect of a period ending not later than 31st October 1989 in the case of which– a disregarding this article, article 7 would apply otherwise than by virtue of paragraph (5) thereof, and b if article 7 did not apply, article 6 would apply, in this article referred to as “the relevant allowances”. 2 Where the authority– a has made estimates of its likely subsidy in respect of the relevant allowances on the basis of proposals made by the Secretary of State as to the provisions now made by article 6 and Schedule 3 (disregarding the reference in article 6(4) to article 7), and b has good reason for not making the calculations required by Schedule 4, then in the case of the relevant allowances article 7 shall not apply and, accordingly, article 6 shall apply. Treatment of certain residential accommodation 9 Where any part of an authority’s qualifying expenditure is attributable to rebates or allowances granted under the Social Security and Housing Benefits Act 1982 to persons in respect of accommodation provided under– a sections 21 to 24 and 26 of the National Assistance Act 1948 (provision of accommodation); or b section 21(1) of and paragraph 1 or 2 of Schedule 8 to the National Health Service Act 1977 (prevention, care and after-care); or c section 59 of the Social Work (Scotland) Act 1968 (provision of residential and other establishments) where board is available to the claimant, for the purposes of article 3(1)(b), the appropriate amount for the relevant year in respect of such part shall be 90 per cent. of the qualifying expenditure so attributable. Homeless cases 10 1 Where any part of an authority’s qualifying expenditure is attributable to a rebate granted in respect of the reasonable amount which a person is required to pay to an authority under section 69(2)(b) of the Housing Act 1985 for board and lodging accommodation made available to that person, for the purposes of article 3(1)(b), the appropriate amount shall be– a if the rebate granted is the same as or less than the difference between the weekly eligible rent and the appropriate maximum amount, nil per cent. of the qualifying expenditure attributable to such rebate; b if the rebate granted is greater than the difference between the weekly eligible rent and the appropriate maximum amount, nil per cent. of the portion of qualifying expenditure attributable to such rebate which is equal to the excess and 97 per cent. of the balance. 2 In paragraph (1) the appropriate maximum amount shall be determined in accordance with the formula– ( A × B ) - C Where– A is the weekly amount specified in column (2) of Schedule 5 in relation to an authority specified in column (1) of that Schedule; B is the number equal to the number of persons aged 11 or over in respect of whom the accommodation has been made available; and C is the product of £6 multiplied by the number equal to the number of persons aged under 11 in respect of whom the accommodation has been made available. 3 In this article “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 home or some similar establishment, but it does not include accommodation in a residential care home or nursing home within the meaning of the Income Support (General) Regulations 1987 nor in a hostel within the meaning of regulation 12A of the Regulations . Overpayment of rebates or allowances 11 1 Where any part of an authority’s qualifying expenditure is attributable to an overpayment of rebates or allowances made and discovered in the relevant year, for the purposes of article 3(1)(b), the appropriate amount for the year in respect of such part shall be calculated in accordance with paragraph (2). 2 Subject to paragraph (3), the appropriate amount shall be– a in the case of an overpayment caused by an error of the authority making the payment, 15 per cent. of the qualifying expenditure attributable to the overpayment; and b in the case of an overpayment caused by official error, 97 per cent. of so much of the qualifying expenditure attributable to the overpayment as has not been recovered by the authority; and c in the case of any other overpayment, 30 per cent. of the qualifying expenditure attributable to the overpayment. 3 In paragraph 2(b) “overpayment caused by official 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 of Employment, acting as such, or a decision of an adjudication officer appointed in accordance with section 97(1) of the Social Security Act 1975 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. 4 This article shall not apply in a case to which paragraph (15) of regulation 72 of the Regulations or, as the case may be, paragraph (18) of regulation 59 of the Scottish Regulations (time and manner in which claims are to be made) applies. Addition to subsidy 12 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, the addition referred to in article 3(1) shall be equal to 30 per cent. of the amount of the duplicate payments. Deductions to be made in calculating subsidy in respect of rebates or allowances 13 1 The deductions referred to in article 1(3) are of the following amounts where– a a tenant of an authority, who is in receipt of rent 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 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 services or facilities or, whether or not in return for an award or grant from the authority, to provide such services or facilities 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 sub-paragraph (i) or (ii) of this paragraph if he were not or had not at that time been in receipt of a rent rebate, the amounts attributable during the relevant year to such services, facilities or rights 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 rent rebate to which he is entitled under the 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 rent 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 (power of local authorities to incur expenditure for certain purposes not otherwise authorised); iv except where sub-paragraph (a)(ii) applies, made as reasonable compensa tion 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 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 under paragraph (8) of regulation 69 of the Regulations or, as the case may be, regulation 57 of the Scottish Regulations (calculations of weekly amounts), the amount of such increase; e during the relevant year a rebate has been paid in advance and an overpayment has occurred because a change in the circumstances of the recipient has reduced or eliminated entitlement to such rebate, the amount overpaid calculated from the end of the second benefit week after the recipient has disclosed such change of circumstances to the authority; f during the relevant year it is discovered that a rebate or allowance has been paid under the Social Security and Housing Benefits Act 1982 in excess of entitlement, the amount of such overpayment; g except where paragraph (h) applies, where during the relevant year it is discovered that an overpayment of rebate or allowance has been made in the preceding year an amount equal to– i in the case of an overpayment caused by an error of the authority making the payment, 85 per cent. of the overpayment; ii in the case of an overpayment caused by official error within the meaning of article 11(3), 3 per cent. of so much of the overpayment as has not been recovered by the authority; or iii in the case of any other overpayment, 70 per cent. of the overpayment; h where during the relevant year it is discovered that an overpayment of rebate or allowance has been made in the preceding year in circumstances to which regulation 91A of the Regulations (payment on account of a rent or rate rebate) or regulation 4A of the Housing Benefit (Transitional) Regulations 1987 (payments on account of housing benefit applied), the amount of such overpayment. Modification of subsidy on payments in excess of entitlement made before 1 April 1988 14 1 Notwithstanding any provision made under the Social Security and Housing Benefits Act 1982 in respect of housing benefit paid in excess of entitlement, where an overpayment of benefit to which any such provision applies made before 1st April 1988 under that Act in a certificated case is discovered in the relevant year an authority’s subsidy in respect of such a payment shall be calculated as set out in paragraph (2). 2 The amount of that subsidy shall be– a in the case of an overpayment caused by an error of the authority making the payment, 15 per cent. of the overpayment; and b in the case of an overpayment caused by official error within the meaning of article 11(3), 97 per cent. of so much of the overpayment as has not been recovered by the authority; and c in the case of any other overpayment, 30 per cent. of the overpayment. 3 In paragraph (1) “certificated case” has the meaning assigned to that expression by regulation 2(1) of the Housing Benefits Regulations as previously in force. Signed by authority of the Secretary of State for Social Security. Gillian Shephard Parliamentary Under Secretary of State, Department of Social Security 28th March 1990. We consent, Kenneth Carlisle D. Lightbown Two of the Lords Commissioners of Her Majesty’s Treasury 30th March 1990.