Commentary on Sections PART 2: Housing benefit and council tax benefit Section 31: Loss of housing benefit following eviction for anti-social behaviour, etc
148.Subsection (1) of section 31 will insert sections 130B to 130G in the Social Security Contributions and Benefits Act 1992. Section 130B will provide for the reduction, or non-payment, of housing benefit where certain conditions are met. The first condition is that a relevant order for possession of the claimant’s (to be known as the “former occupier”) home has been made by a court on grounds relating to anti-social or criminal behaviour. The relevant orders are set out in section 130C. The second condition is that he has ceased to live in that home as a result of that order.
149.The third condition will operate slightly differently depending on the territory concerned. In England and Wales, the third condition is that the claimant has failed to comply, without good cause, with a warning notice issued to him by a local authority with a view to improving his behaviour (section 130B(2)). In Scotland, the third condition is that the claimant has failed to comply with a requirement by a local authority to take specified action, without good cause, having been warned that such a failure would affect the amount of Housing Benefit payable to him (section 130B(3)) and the authority has recommended that the claimant’s benefit be so affected. The final condition is that the claimant satisfies the conditions for entitlement to Housing Benefit.
150.It is intended that once a person has satisfied the first two conditions, the relevant local authority will make an attempt to engage with him, if it has not already, with the aim of ending, or preventing repetition of, his anti-social behaviour through the provision of rehabilitation. Where the person refuses to co-operate, the local authority will have the option of using this sanction to encourage him to co-operate with the rehabilitation.
151.Section 130B (4) will provide a power to prescribe the rate of benefit reduction and the circumstances in which it is payable. The intention is to reduce Housing Benefit by 10% for the first 4 weeks, followed by 20% for a further 4 weeks and then 100% for either a period of up to 5 years beginning with the date of the possession order (section 130B(8)) or until the local authority considers that the sanction should no longer apply (section 130B(6)). Examples of circumstances where the local authority might consider the sanction is no longer appropriate are where the person has begun co-operating with rehabilitation, where rehabilitation services are no longer available or where the person has, or his family have, become particularly vulnerable. It is intended that a lower rate of reduction will apply to those considered to be in hardship. This could include households where someone is seriously ill or pregnant and households with children or which include those with caring responsibilities.
152.The sanction, having been brought to an end by a local authority can be restarted if the person fails to comply with a further warning notice or, in Scotland, fails to comply with a further requirement and the authority recommends it should apply. So, if the person stops co-operating with rehabilitation, a further warning can be issued or further action specified. If this is not complied with, without good cause, the sanction will start to run again (sections 130B(6) and (7)).
153.Only one sanction can be applied in relation to a relevant order for possession, albeit the sanction can stop and start up to the date 5 years after the original possession order was made (section 130B(9)).
154.Section 130B(10) will define a local authority for the purpose of this section by reference to existing legislation.
155.Section 130C will set out the relevant orders for possession. All the orders for possession specified in subsections (1) and (2) are made on grounds of behaviour causing a nuisance or annoyance to neighbours or criminal behaviour. It does not matter if the possession is made purely on those grounds or on those grounds coupled with other grounds (section 130C(3)).
156.The relevant orders for possession specified can be stayed, suspended, or (in Scotland) sisted, with conditions attached. Those conditions may relate to behaviour and the payment of rent and rent arrears. If a relevant possession order is made and stayed, suspended or sisted with behaviour conditions, the sanction can only be applied if the order takes effect as a result of the breach of those behaviour conditions (section 130C(4), (5) and (6)).
157.Section 130D(1) will provide a power to prescribe circumstances in which benefit not paid due to the application sanction can be paid to the claimant. An example of such circumstances will be where a claimant has made a successful application for the relevant order for possession to be set aside.
158.Section 130D(2) will provide a power to vary the definition of relevant orders for possession.
159.Section 130D(3) will provide a power to prescribe the matters which should be taken into account when deciding whether or not a person has good cause, and circumstances in which a person is, or is not, to be regarded as having good cause, for not complying with a warning notice or a requirement of a Scottish local authority.
160.Section 130E will make provision for cases where the claimant is a member of a couple. Subsection (2) would provide that where both members of a couple lived in a dwelling to which a relevant order for possession relates and leave the dwelling as a result, housing benefit could be subject to a future sanction should either member of that couple fail to comply with a warning notice or in Scotland take specified action. If only one member of the couple resided in a dwelling to which a relevant order for possession relates the sanction is not to apply (section 130E (3)).
161.Section 130F will make provision for the necessary information sharing. New information sharing powers are necessary to provide for relevant information regarding relevant orders for possession to be given to the Secretary of State by the courts or others who may be aware of such an order (in England and Wales); for the Secretary of State to provide relevant information relating to relevant orders for possession or housing benefit to local authorities providing services related to rehabilitation; for authorities providing rehabilitation services to give relevant information to the Secretary of State for purposes relating to the administration of housing benefit; and for the sharing of relevant information within and between authorities administering housing benefit or providing rehabilitation services.
162.Section 130F(1) will allow the Secretary of State, through regulations, to require courts to notify him when a relevant order for possession is made and provide relevant details of it. Section 130F(1) will also enable the Secretary of State, through regulations, to require similar information to that required from a court from others who may be aware of the making of a relevant order for possession. Such people could include for instance the landlord or local authority. The intention is to place the obligation on the courts in the first instance. This subsection will not apply to Scotland.
163.Section 130F(2) will enable the Secretary of State to provide information obtained under section 130F(1) to a relevant local authority providing rehabilitation services, or to a person authorised by the authority to provide those services. It will also allow the Secretary of State to provide information he holds relating to housing benefit to those authorities or service providers.
164.Section 130F(3) will provide for the Secretary of State to require, through regulations, relevant information for purposes relating to the administration of housing benefit to be provided by a relevant authority providing rehabilitation services or a person authorised by the authority to provide those services to him. Information could include whether a person has satisfied some or all of the conditions of sections 130B (1), (2) and (3).
165.Section 130F(4) will allow the Secretary of State to require, through regulations, that relevant information may be shared within and between authorities administering housing benefit and those providing rehabilitation services for purposes relating to the administration of housing benefit.
166.Section 130F(5) will allow the Secretary of State to require, through regulations, that relevant information be shared within and between authorities administering housing benefit and those providing rehabilitation services for purposes relating to the provision of rehabilitation services. This subsection would not apply in Scotland, where existing legislation already allows such information sharing.
167.Section 130F(6) will define relevant information. The manner in which relevant information is to be supplied may be prescribed by the Secretary of State (section 130F (7)).
168.The intention is to pilot the use of a sanction in about 10 authorities in England for a period of 2 years. Section 130G will provide the necessary piloting powers. It will not apply to Scotland.
169.Subsection (2) of Section 31 will provide that any regulations made under subsection 130B(4), relating to the rate of the benefit reduction, and regulations made under subsection 130D(2), relating to varying what constitutes a relevant order for possession, must be approved by both Houses of Parliament.
170.Subsection (3) of section 31 will limit the duration of the powers in section 31. Subsection (3) will bring the provisions of section 31 to an end at 31 December 2010. Any regulations made under this provision will cease to have effect after this date, although it is possible for the regulations to cease to have effect before that date if they so provide. For example, it is intended that regulations made under the piloting power (section 130G) will cease to have effect before that date. Further primary legislation will need to be in place to allow the scheme (or any replacement scheme) to operate after 31 December 2010.
171.Subsection (4) will enable Secretary of State to make orders preventing anything which has been done under section 31 (other than piloting) from having effect after 31 December 2010. The piloting regulations will end any sanction in force at the end of the pilot period. It is unlikely that this power will be used but it is included as a safeguard.