Housing Rights welcomes passing of mitigation regulations & calls for additional safeguards to be put in place

Kate McCauley, Policy & Practice Manager with Housing Rights, calls for additional safeguards to be put in place following the passing of the mitigation regulations for the “Bedroom Tax”.

The NI Assembly has today approved the Housing Benefit (Welfare Supplementary Payment) Regulations (Northern Ireland) 2017. These regulations provide a legal mechanism under which additional mitigating payments can be made to those impacted by the introduction of the Social Sector Size Criteria due to take place on 20th February 2016.

Housing Rights welcomes the passing of this regulation, having previously highlighted the risk that failure to do so would have made it significantly more difficult for necessary supplementary payments to be made to up to 34,000 people.  Attention must now turn, however, to ensuring that additional interventions are made at a policy level to safeguard the intent of the mitigations.

Necessary safeguards

In normal circumstances, the NI Assembly Communities Committee and key stakeholders would have had the opportunity to review and scrutinise the regulations prior to their being passed.

In view of the fact that this opportunity was not available, Housing Rights welcomes the identification during today’s debate that the Minister will seek to publish on a six monthly basis, the numbers of claimants whose entitlement to supplementary payment ceases. This data will be important in assessing whether the intent of the regulations are working in practice. Housing Rights also welcome the suggestion that the NI Assembly Communities Committee could retrospectively scrutinise the regulations when the Assembly is reconvened.

Further policy interventions required

Housing Rights has now had the opportunity to review the regulations and it is clear that there are further policy interventions which can and should be made to strengthen the provisions.

Housing Rights welcomes the enabling form in which the regulations have been drafted. The key opportunity to safeguard the intent of the regulations, is in the procedures which are to be developed to review the operation of the payment scheme (Section 15). These procedures should be comprehensive (so that all decisions made under the regulations can be reviewed) and in the form of robust guidance.

Under each of the following sections of the regulations, it is our view that the following interventions could be made.

Section 2: Eligibility

A person’s entitlement ceases under the scenarios highlighted in 2(2). The only exception provided is under 2(3) which is if a property is allocated via Management Transfer status.

In our view this is the appropriate principle and it is welcome that the regulations provide an opportunity for exemption particularly as scenarios will undoubtedly arise where a person has no other option but to move to a property in which they would be under-occupying by the same or greater extent.  It would be important however, that the details regarding the criteria for management transfer are reviewed as the operation of supplementary payments is now linked to their use.

Section 7: Disclosure

Whilst recognising the critical role of accurate and reliable information in administering supplementary payments, it is our view that there is a compelling need to provide proper safeguards to ensure that the information sharing process is compatible with all legislative requirements and also reflects good practice.

The overriding principles for information sharing covered by the Data Protection Act, require information sharing to be necessary and proportionate. Robust guidance is therefore essential.

Under 7(4)(b) provision is made for information to be shared to a body which appears to the Department to ‘represent housing associations in Northern Ireland for the supply by it to the Housing Executive or a registered housing association for the use referred to in sub-paragraph (a)’.

It is unclear from a reading of this provision for what purpose it has been inserted in the regulations. It would be helpful if clarity could be provided as to the purpose of this provision and its accordance with Data Protection principles.

Sections 8-13: Overpayments

Housing Rights notes that the regulations allow for recovery of overpayments in cases of official error (see 8(6)).

In housing benefit and other social security benefits, recovery of overpayment in cases of official error is only permitted in cases where a person could reasonably have been expected to know that such overpayments were occurring. 

In light of this departure from normal practice, it is therefore welcome that the regulations have been written in a way which enable, rather than compel recovery of overpayments. For example the regulations state that the Department may recover’ instead of ‘the Department must recover’.

Housing Rights is mindful of the complexities of existing benefit payments and further of the significant changes already or about to happen with the migration to Universal Credit etc. in addition many claimants will now receive separate supplementary payments. It could therefore be very difficult to reasonably determine that overpayments caused by official error have occurred.

Whilst the regulations do not specify that discretion will apply in decisions regarding overpayment recovery, Housing Rights views it as essential that this occur. It is also the case that recovery of overpayment procedures normally allow discretion to recover in cases where doing so would cause undue hardship. Ensuring that guidance is developed which specifies that the regulations allow for such discretion to be used in decisions about whether or not to recover overpayments in both cases of official error and cases where doing so would cause undue hardship, are therefore essential.

Section 15: Review

Critically, the regulations require the Department to develop procedures in relation to the operation of the supplementary payments. The current regulations specify that these procedures should relate to a) a person’s entitlement to a welfare supplementary payment and (b) a decision to recover a payment of welfare supplementary payment. Unfortunately these provisions could be interpreted quite narrowly.

It will therefore be essential that the procedures developed are sufficiently broad to cover all decisions made under the operation of the regulations. 

It could usefully be suggested that the Department develop separate guidance be developed in relation to the operation of Welfare Supplementary Payments. Existing Decision Maker Guidance relates only to the operation of social security benefits and does not cover the supplementary payments provided for in this and other regulations which stem from the Fresh Start agreement.

Moving forward

The regulations approved by the Assembly today were passed in unusual circumstances. Despite this, the importance of safeguarding protections for vulnerable households was prioritised which is most welcome. Moving forward it will be important that this continues to be recognised and that the regulations work for both tenants and landlords. Housing Rights will be closely monitoring the implementation of the regulations and hopes to work closely with the Department, landlords and other stakeholders to ensure that these regulations deliver the intended protection.