The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 No. 406

Regulation 15

SCHEDULE 2 Decisions of rent payable

PART I Decisions

Significantly high rents

1.—(1) The Executive shall decide whether, in its opinion, the rent payable under the tenancy of the dwelling at the relevant time is significantly higher than the rent which the landlord might reasonably have been expected to obtain under the tenancy at that time.

(2) If the Executive decides under sub-paragraph (1) that the rent is significantly higher, the Executive shall also decide the rent which the landlord might reasonably have been expected to obtain under the tenancy at the relevant time.

(3) When making a decision under this paragraph, the Executive shall have regard to the level of rent under similar tenancies of similar dwellings in the locality (or as similar as regards tenancy, dwelling and locality as is reasonably practicable) and shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy.

Size and rent

2.—(1) The Executive shall decide whether the dwelling, at the relevant time, exceeds the size criteria for the occupiers.

(2) If the Executive decide that the dwelling exceeds the size criteria, the Executive shall also decide the rent which a landlord might reasonably have been expected to obtain, at the relevant time, for a tenancy which is—

(a) similar to the tenancy of the dwelling;

(b) on the same terms other than the term relating to the amount of rent; and

(c) of a dwelling which is in the same locality as the dwelling, but which—

(i) accords with the size criteria for the occupiers;

(ii) is in a reasonable state of repair, and

(iii) corresponds in other respects, in the Executive’s opinion, as closely as is reasonably practicable to the dwelling.

(3) When making a decision under sub-paragraph (2), the Executive shall have regard to the same matter and make the same assumption as specified in paragraph 1(3), except that in judging the similarity of other tenancies and dwellings the comparison shall be with the tenancy of the second dwelling referred to in sub-paragraph (2) and shall assume that no one who would have been entitled to housing benefit had sought or is seeking that tenancy.

Exceptionally high rents

3.—(1) The Executive shall decide whether, in its opinion, the rent payable for the tenancy of the dwelling at the relevant time is exceptionally high.

(2) In sub-paragraph (1) “rent payable for the tenancy” means—

(a) where a decision is made under sub-paragraph (2) of paragraph 2 the rent decided under that sub-paragraph;

(b) where no decision is so made and a decision is made under sub-paragraph (2) of paragraph 1, the rent decided under that sub-paragraph; and

(c) in any other case, the rent payable under the tenancy at the relevant time.

(3) If the Executive decides under sub-paragraph (1) that the rent is exceptionally high, the Executive shall also decide the highest rent, which is not an exceptionally high rent and which a landlord might reasonably have been expected to obtain at the relevant time (on the assumption that no one who would have been entitled to housing benefit had sought or is seeking the tenancy) for an uncontrolled tenancy of a dwelling which—

(a) is in the same locality as the dwelling;

(b) has the same number of bedrooms and rooms suitable for living in as the dwelling (or, where the dwelling exceeds the size criteria for the occupiers, accords with the size criteria); and

(c) is in a reasonable state of repair.

(4) For the purpose of deciding whether a rent is an exceptionally high rent under this paragraph, the Executive shall have regard to the levels of rent under uncontrolled tenancies of dwellings which—

(a) are in the same locality as the dwelling (or in as similar a locality as is reasonably practicable); and

(b) have the same number of bedrooms and rooms suitable for living in as the dwelling (or, in a case where the dwelling exceeds the size criteria for the occupiers, accord with the size criteria).

Local reference rents

4.—(1) The Executive shall make a decision of a local reference rent in accordance with the formula—

where—

• R is the local reference rent;

• H is the highest rent, in the Executive’s opinion—

  (a)

  which a landlord might reasonably have been expected to obtain, at the relevant time, for an uncontrolled tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

  (b)

  which is not an exceptionally high rent; and

• L is the lowest rent, in the Executive’s opinion—

  (a)

  which a landlord might reasonably have been expected to obtain, at the relevant time, for an uncontrolled tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

  (b)

  which is not an exceptionally low rent.

(2) The criteria are—

(a) that the dwelling under the uncontrolled tenancy—

(i) is in the same locality as the dwelling;

(ii) is in a reasonable state of repair, and

(iii) has the same number of bedrooms and rooms suitable for living in as the dwelling (or, in a case where the dwelling exceeds the size criteria for the occupiers, accords with the size criteria); and

(b) if the tenant does not have the use under the tenancy of the dwelling at the relevant time of more than one bedroom or room suitable for living in—

(i) that under the uncontrolled tenancy the tenant does not have the use of more than one bedroom or room suitable for living in;

(ii) if the rent under the tenancy at the relevant time includes payments for board and attendance and the Executive considers the amount fairly attributable to board and attendance is a substantial part of the rent, that a substantial part of the rent under the uncontrolled tenancy is fairly attributable to board and attendance;

(iii) if sub-head (ii) does not apply and the tenant shares a kitchen, toilet, bathroom and room suitable for living in with a person other than a member of his household, a non-dependant or a person who pays rent to the tenant, that the uncontrolled tenancy provides for the tenant to share a kitchen, toilet, bathroom and room suitable for living in, and

(iv) if sub-heads (ii) and (iii) do not apply, that the circumstances described in sub-heads (ii) and (iii) do not apply in relation to the uncontrolled tenancy.

(3) When ascertaining H and L under sub-paragraph (1), the Executive—

(a) shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy; and

(b) shall exclude the amount of any rent which, in the Executive’s opinion, is fairly attributable to the provision of services which are ineligible to be met by housing benefit.

(4) In sub-paragraph (2), “bedroom or room suitable for living in” does not include a room which the tenant shares with any person other than—

(a) a member of his household;

(b) a non-dependant; or

(c) a person who pays rent to the tenant.

(5) In sub-paragraph (3), “services” means services performed or facilities (including the use of furniture) provided for, or rights made available to, the tenant, but not, in the case of a tenancy where a substantial part of the rent under the tenancy is fairly attributable to board and attendance, the provision of meals (including the preparation of meals or provision of unprepared food).

Single room rents

5.—(1) The Executive shall decide a single room rent in accordance with the following formula—

where—

• S is the single room rent;

• H is the highest rent, in the Executive’s opinion—

  (a)

  which a landlord might reasonably have been expected to obtain, at the relevant time, for an uncontrolled tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

  (b)

  which is not an exceptionally high rent; and

• L is the lowest rent, in the Executive’s opinion—

  (a)

  which a landlord might reasonably have been expected to obtain, at the relevant time, for an uncontrolled tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

  (b)

  which is not an exceptionally low rent.

(2) The criteria are—

(a) that the dwelling under the uncontrolled tenancy is in the same locality as the dwelling and is in a reasonable state of repair;

(b) that, under the uncontrolled tenancy, the tenant—

(i) has the exclusive use of one bedroom;

(ii) does not have the use of any other bedroom;

(iii) shares the use of a room suitable for living in;

(iv) shares the use of a toilet and bathroom, and

(v) shares the use of a kitchen and does not have the exclusive use of facilities for cooking food; and

(c) that the rent does not include any payment for board and attendance.

(3) Sub-paragraphs (3) and (5) of paragraph 4 apply when ascertaining H and L under this paragraph as if the reference in those sub-paragraphs to H and L were to H and L under this paragraph.

Claim-related rent

6.—(1) In this paragraph, “claim-related rent” means—

(a) where the Executive makes a decision under sub-paragraph (2) of paragraph 1, sub-paragraph (2) of paragraph 2 and sub-paragraph (3) of paragraph 3, the lowest of the 3 rents decided under those sub-paragraphs;

(b) where the Executive makes a decision under only 2 of the sub-paragraphs referred to in head (a), the lower of the 2 rents decided under those sub-paragraphs;

(c) where the Executive makes a decision under only one of the sub-paragraphs referred to in head (a), the rent decided under that sub-paragraph;

(d) where the Executive does not make a decision under any of the sub-paragraphs referred to in head (a), the rent payable under the tenancy of the dwelling at the relevant time.

(2) Where the Executive makes any decision under paragraphs 1, 2 or 3, it shall also decide which rent is the claim-related rent.

(3) Where the dwelling is not in a hostel, the Executive shall also decide the total amount of ineligible charges, as defined in paragraph 7, which it has not included in the claim-related rent because of the assumptions made in accordance with that paragraph.

PART II Assumptions, etc.

Ineligible charges and support charges

7.—(1) For the purposes of this paragraph, “ineligible charges” means service charges which are ineligible to be met by housing benefit by virtue of regulation 13(3) and Schedule 1 except, in the case of a tenancy where the rent includes payments for board and attendance, and the Executive considers that a substantial part of the rent under the tenancy is fairly attributable to board and attendance, charges specified in paragraph 1(a)(i) of Schedule 1.

(2) When making a decision under paragraph 1, 2 or 3 of this Schedule, the Executive shall assume that the items to which the ineligible charges relate were not to be provided or made available.

Housing associations etc.

8.—(1) Where the landlord is a housing association or a charity, the Executive shall assume that the landlord is not such a body.

(2) The Executive shall not take into account the rent under any tenancy where the landlord is a housing association or where the landlord is a charity and the dwelling is provided by the landlord in the pursuit of its charitable purposes.

(3) In this paragraph “charity” has the same meaning as in the Charities Act (Northern Ireland) 1964.

PART III Indicative rent levels

9.—(1) The Executive shall decide the indicative rent level for each category described in sub-paragraph (3) in accordance with the following formula—

where—

• I is the indicative rent level;

• H is the highest rent, in the Executive’s opinion—

  (a)

  which a landlord might reasonably be expected to obtain at the time the decision is being made for an uncontrolled tenancy of a dwelling meeting the criteria in sub-paragraph (2); and

  (b)

  which is not an exceptionally high rent; and

• L is the lowest rent, in the Executive’s opinion—

  (a)

  which a landlord might reasonably be expected to obtain at the time the decision is being made for an uncontrolled tenancy of a dwelling meeting the criteria in sub-paragraph (2); and

  (b)

  which is not an exceptionally low rent.

(2) The criteria are that—

(a) the dwelling is in a reasonable state of repair; and

(b) the dwelling and tenancy accord with the category to which the decision relates.

(3) The categories for the purposes of this paragraph are—

(a) a dwelling where the tenant does not have use of more than one room and where a substantial part of the rent under the tenancy is fairly attributable to board and attendance;

(b) a dwelling where the tenant does not have use of more than one room, the tenancy provides for him to share a kitchen or toilet and head (a) does not apply;

(c) a dwelling where the tenant does not have use of more than one room and where heads (a) and (b) do not apply;

(d) a dwelling where the tenant does not have use of more than 2 rooms and where none of heads (a) to (c) applies;

(e) a dwelling where the tenant does not have use of more than 3 rooms and where none of heads (a) to (d) applies;

(f) a dwelling where the tenant does not have use of more than 4 rooms and where none of heads (a) to (e) applies;

(g) a dwelling where the tenant does not have use of more than 5 rooms and where none of heads (a) to (f) applies; and

(h) a dwelling where the tenant does not have use of more than 6 rooms and where none of heads (a) to (g) applies.

(4) When ascertaining H and L under sub-paragraph (1), the Executive—

(a) shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy; and

(b) shall exclude the amount of any rent which, in the Executive’s opinion, is fairly attributable to the provision of services which are ineligible to be met by housing benefit.

(5) In this paragraph—

“room” means a bedroom or room suitable for living in and in heads (a), (b) and (c) of sub-paragraph (3) does not include a room which the tenant shares with any person other than—

(a)

a member of his household;

(b)

a non-dependant of the tenant; or

(c)

a person who pays rent to the tenant;

“services” has the meaning given in paragraph 4(5).

PART IV Size criteria

10.  One bedroom or room suitable for living in shall be allowed for each of the following categories of occupier (and each occupier shall come within only the first category for which he is eligible)—

(a) a couple;

(b) a person who is not a child;

(c) 2 children of the same sex;

(d) 2 children who are less than 10 years old;

(e) a child.

11.  The number of rooms (excluding any allowed under paragraph 10) suitable for living in allowed are—

(a) if there are less than 4 occupiers, one;

(b) if there are more than 3 and less than 7 occupiers, 2; and

(c) in any other case, 3.

PART V Special cases

Houseboats

12.  Where a decision relates in whole or in part to mooring charges for a houseboat, this Schedule applies in relation to that decision (or, as the case may be, to that part which relates to those charges) with the following modifications—

(a) references to a tenancy, a tenancy of a dwelling or an uncontrolled tenancy are references to an agreement under which those charges are payable (and references to a landlord and a tenant shall be construed accordingly); and

(b) no decision shall be made under paragraph 2 and references to the dwelling exceeding the size criteria shall not apply.

Mobile homes

13.  Where a decision relates in whole or in part to payments in respect of the site on which a caravan or a mobile home stands, this Schedule applies in relation to that decision (or, as the case may be, that part which relates to those payments) with the following modifications—

(a) references to a tenancy, a tenancy of a dwelling or an uncontrolled tenancy are references to an agreement under which those payments are payable (and references to a landlord and a tenant shall be construed accordingly); and

(b) no decision shall be made under paragraph 2 and references to the dwelling exceeding the size criteria shall not apply.

Rental purchase agreements

14.  Where a decision relates to a rental purchase agreement, the agreement is to be treated as if it were a tenancy.

PART VI Interpretation

15.  In this Schedule—

“uncontrolled tenancy” means a tenancy which is not a protected or statutory tenancy within the meaning of the Rent (Northern Ireland) Order 1978(1) or a secure tenancy within the meaning of Article 25 of the Housing (Northern Ireland) Order 1983(2);

“decision” means a decision made in accordance with Part I or Part III;

“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;

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

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

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

“tenancy” includes—

(a)

a licence; and

(b)

a prospective tenancy or licence, and

references to a tenant, a landlord or any other expression appropriate to a tenancy shall be construed accordingly.

(1)

S.I. 1978/1050 (N.I. 20)

(2)

S.I. 1983/1118 (N.I. 15)