Denial of housing benefit for nightshelter accommodation

Carmel Ferguson, solicitor and member of Housing Rights Service's Legal Team investigates how a recent Upper Tribunal hearing will impact locally.  This widely reported case upheld a local authority's decision not to grant housing benefit to a homeless applicant.  Could this set a worrying precedent that will impact on people in Northern Ireland?

Nightshelter not considered a "home" for purposes of housing benefit

OR v Secretary of State for Work and Pensions and Isle of Anglesey CC [2013] UKHT 065 (AAC)

The UK Upper Tribunal recently held that an appellant was not entitled to housing benefit to cover the costs of his stay in a night shelter.The Tribunal held that a person who is allowed to stay overnight (for a charge) at a night shelter but is:

• not allowed to remain there during the day,
• has to leave in the morning taking his belongings with him and 
• has no right to stay in any part of the night shelter,

is not occupying a dwelling as a home and therefore is not entitled to Housing Benefit.

The first Tribunal had considered whether the night shelter fell into the definition of a hostel.

The Upper Tribunal said that the issue was whether the accommodation was a dwelling being occupied by the claimant as his ‘home’. If it was not, payment of its charges did not qualify for housing benefit. It was only if it was being occupied as a home that its status as a hostel would become relevant (for the purpose of quantifying the amount of housing benefit)

In deciding that the night shelter in question was not a dwelling which the applicant was occupying as his home, the Judge in the Upper Tribunal stressed that the case turned on its own particular facts and that nothing in his judgment was intended to prescribe how housing benefit claims from rough sleepers should be decided

Facts of the case

The Night Shelter was on the ground floor of a former British Legion club. There was dormitory accommodation for a maximum of 10 people. There was a food preparation area. There were toilet and washing facilities in the building but shower facilities were in a separate building. Places were awarded on a first come first served basis. Those wishing to stay in the shelter had to register before 6 pm. and had to leave before 8 am.

How this case relates to Northern Ireland

As this is a decision of an Upper Tribunal it is not binding in Northern Ireland but in the absence of any local decisions on the same point, it will be taken in to account. Housing Rights Service is not aware of any similar decisions taken by the Housing Executive but would be hugely interested to hear from any advisers who have had a similar case where a client has been refused housing benefit for nightshelter accommodation. 

Update

This judgement led to a number of councils in Great Britain taking a decision not to award housing benefit for periods of time spent in nightshelters, resulting in the closure of one facility in Manchester.  On 1 July Inside Housing reported that the Communities & Local Government Department and the Department for Work and Pensions issued a joint note to all councils to try to clear up any confusion over payment of housing benefit for stays in nightshelters. 

The note points out: ‘In his decision the judge made it clear that this case was limited to its own particular facts and state expressly that the case was not “intended to prescribe how housing benefit claims for rough sleepers should be decided”.  Inside Housing has further details on the Government's response to this case. 

Keep up to date with case law and legislation

Members of Housing Rights Service will have an opportunity to discuss this case and other recent case law with Carmel and her legal colleagues at our next Housing Practitioner's Forum meeting.  Contact us if you'd like to find out more about the Housing Practitioner's Forum and other benefits of membership.