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Safeguard Policy

Introduction

The aim of this Local Housing Allowance (LHA) safeguard policy is to:

  • Minimise the risk of a tenant falling into rent arrears with their landlord and reducing the risk of being evicted.
  • Help to sustain tenancies for tenants.
  • Assure landlords that the LHA will be paid if they have tenants who are unable to manage their affairs.
  • Help to put tenants in touch with other agencies where necessary and to give people the opportunity and support to manage their own affairs.
  • To make reasonable, fair and consistent decisions on the merit of each case when deciding if a tenant is unable to manage their affairs.
  • To make the application form easy to complete and ensure that the process is transparent and straightforward.
  • To advise people of their appeal rights where applicable.

This safeguard policy is not designed to:

  • Supersede any support that a tenant receives to allow them the opportunity to manage their own affairs.
  • Be used by any party to circumvent the aims of the LHA scheme.
  • Be seen as a blanket policy for agencies providing support to private tenants.

Benefit Services will seek to identify potentially vulnerable claimants by:

  • Providing information regarding the issue of vulnerability whilst publicising the terms and conditions of LHA as a whole.
  • Providing information and advice to claimants and landlords.
  • Providing information and advice to internal and external Services and agencies.
  • Providing establishing vulnerability claim forms and making these available to claimants and internal and external Services and agencies.

Those that are not considered vulnerable are as follows:

  • Claimants who are temporarily unable to act for themselves.
  • Persons appointed to deal with the affairs of these claimants.

Payment of the Local Housing Allowance & tenants unable to manage their own affairs

Payment of the LHA will be paid to the claimant rather than the landlord.

However Regulation 96(3A)(b)(i) of the Housing Benefit Regulations 2006 states that payment of a rent allowance to a persons landlord may be made where the authority considers that the claimant is likely to have difficulty in managing his own financial affairs. This regulation gives the Council the discretion to make payment direct to a landlord, as a safeguard to ensure that the rent is paid on time. One of the aims of the housing benefit reform is to encourage tenants to take responsibility for their rent payments and this has to be balanced against the discretion to pay the landlord directly.

The phrase "is likely" means that there must be a degree of certainty that the tenant is unable to manage their affairs. It is not sufficient to conclude that there is the possibility that the tenant may have difficulty managing his affairs or that, because tenants in certain circumstances carry a risk that they may be unable to manage their affairs, the Benefits Service should pay the LHA direct to the landlord. Each case needs to be thoroughly investigated when considering representations that a tenant is likely to have difficulty in managing their affairs by taking account of the tenant's history and any other factors.

Similarly, the Council must distinguish between tenants who choose to manage their finances in a less than organised way and those that genuinely have difficulty managing their affairs. There is no legislative requirement on the Council to be proactive in identifying claimants who are unable to manage their affairs. The tenant will have to apply to the Council for their LHA to be paid to their landlord and supporting evidence from, for example, a Doctor, Social Worker, Support Agencies, Probation Officers, Counsellors, Court Orders, etc. will be required.

Possible reasons why a tenant may be unable to manage their own affairs

Decisions made regarding vulnerability will be made on the basis of the individual circumstances of each claimant, and in conjunction with any supporting evidence and information available. In addition, the decision must also be in the best interests of the claimant and based on the claimant's ability to manage their financial affairs specifically, not just in terms of the claimant's ability to manage their affairs generally.

Each case will be judged on its own merit. The list below provides some indicators of the possible reasons why a person may be unable to manage their own affairs. The list is not exhaustive.

  • Addiction - alcohol, drugs, gambling
  • Supporting People recipients
  • First language is not English
  • Fleeing violence
  • Homelessness - caused by social/financial/other factors
  • Inability to obtain a bank account
  • Learning difficulties - any level
  • Medical conditions - mental illness, terminal illness
  • Young persons leaving care
  • Bankruptcy/Sequestration
  • Consistent rent arrears shown - less than eight weeks at the current or any previous tenancies.
  • Direct deductions are currently being made by the Department of Work and Pensions from Income Support or Income Based Jobseekers Allowance
  • Severe debt problems

Dealing with representations

The Benefits Service will identify potential cases through representation either in person, via the telephone or in writing by one or several of the following sources:

  • The claimant
    Arrangements will be made for the claimant to complete an application form for their LHA to be paid to a landlord. A claimant will be referred to the Council's Money Advice Service where applicable.
  • Friends and family of the claimant
    The Benefits Service will only accept written representations from friends and family of the claimant with detailed reasons and, where available, evidence as to why the claimant is considered likely to have difficulty managing their affairs.
  • The landlord
    The Benefits Service will only accept written representations from a landlord with detailed reasons and, where available, evidence as to why the claimant is considered likely to have difficulty managing their affairs. Representation from a landlord only will not be sufficient for the Benefits Service to decide but the information will be taken into account for any decision reached.
  • Welfare groups / Money Advisors / Support Organisations
    The Benefits Service will accept written representations from welfare groups / money advisors along with supporting evidence to show that the tenant is likely to have difficulty managing their affairs.
  • Social Services, Doctors, Healthcare Professionals & Probation Officers
    The Benefits Service will accept representations and evidence from Social Services, Doctors and Probation Officers to show that the tenant is likely to have difficulty managing their affairs.
  • Jobcentre Plus or Pension Service
    The Benefits Service will accept representations and evidence from Jobcentre Plus and the Pension Service to show that the tenant is likely to have difficulty managing their affairs.

Standards of evidence

Evidence does not have to be addressed to the Council for it to accept it but it should be as up to date as possible although older evidence will still be accepted, provided it is relevant to the case concerned.

Any verbal or written contact with a claimant or representatives will be noted and treated as evidence. Evidence from Social Services, Doctors, Jobcentre Plus, the Pension Service, reputable financial institutions and courts will be accepted without question.

The Council's own benefit records and staff knowledge of the claimant or information from, for example, Housing Services or the homelessness team will be used to supplement any other evidence received.

The evidence and information received to establish any criteria/criterion identified should be, where possible, in a written or printable format for retention in the claimant's file. Acceptable sources of evidence and information are as detailed in the following list:

  • Claimant
  • Claimant's appointee, care worker, family or friends as appropriate
  • Council Services and Departments - Housing, Social Work and others as appropriate
  • Creditors
  • Department for Work and Pensions (DWP)
  • GP or other medical sources as appropriate - Consultants, hospital records
  • Landlord
  • Police or Courts
  • Probation Officer
  • Reputable financial institutions - building societies and any others as appropriate
  • Welfare Rights
  • Support Organisations

A claimant's inability to provide evidence may indicate vulnerability; however this does not confirm that the claimant is actually vulnerable.

Benefit Services staff must be pro-active in obtaining information if the claimant is unable to provide information, by cross-checking information available from other Council Departments or appropriate organisations.

Making a decision on a tenant's ability to manage their own affairs

The Benefits Service will only make a decision once there is sufficient information and evidence to do so. Failure to provide information or evidence will not by itself demonstrate that a person is unable to manage their own affairs.

If it is considered that a claimant is unable to manage their own affairs then they will be encouraged to seek support and advice, either within the Council or from other groups, to enable them to be in a better position to manage their affairs.

If a tenant meets the criteria and a direct payment is made to safeguard the rent to a landlord but the landlord is not "a fit and proper" person then the Benefits Service will balance the risk to the claimant and their family against the risk presented by the landlord. If the risk to the claimant is considered greater then the payment will be made to the landlord.

Unable to manage their own affairs

Possible reasons why a tenant is unable to manage their own affairs

  • Learning disabilities
  • Medical or physical condition
  • People with difficulty reading, writing or financial illiteracy
  • English as a second language
  • Addiction to drugs, alcohol or gambling
  • Severe debt problems
  • Undischarged bankruptcy
  • Inability to open a bank account
  • Mental Health problems
  • Addiction to drugs, alcohol or gambling
  • Severe debt problems
  • Undischarged bankruptcy
  • Inability to open a bank account
  • Mental Health problems

Suitable sources of evidence (This list is not exhaustive)

  • Letter from support provider or support organisation
  • Letter form Doctor
  • Letter from Social Worker
  • Internal benefit records & case history
  • Staff knowledge of claimant
  • Visiting officer knowledge of claimant
  • Other Council records
  • Letter from hospital
  • Letter from family and friends
  • Letter from community group
  • Letter from care worker
  • Letter from other Council service
  • Court documents
  • Letter from solicitor
  • Letter from creditors
  • Information from Money Advice / Citizens advice bureau (CAB)
  • Letter from Trustee
  • Letter from Healthcare professionals

In the eventuality that the individual circumstances of the claimant do not meet any of the criterion detailed above or no evidence has been provided or can be obtained, advice should be obtained from the Benefits Service's Policy Unit to establish a precedent. If necessary this policy will then be updated as necessary.

If the claimant is deemed to be vulnerable then payments should be made direct to the landlord.

Any excess LHA must still be paid to the claimant, or any third party as appropriate, even if the landlord receives direct payments. Note that excess payments are limited under the legislation to a maximum of £15.00 per week.

A decision letter with appeal rights will be issued to the claimant and/or to any representative acting on behalf of the claimant, and to the landlord.

If the claimant is not deemed to be vulnerable then payments should be made direct to the claimant. A letter will be issued to the claimant, including advice on where to obtain money advice, but will not be issued to the landlord.

If a clear or final decision cannot be made on the basis of the information and evidence already received then payments must not be withheld until a decision can be made.

Payments should be made direct to the claimant or, if appropriate, the first payment can be made to the landlord. A review date of one calendar month will be applied. The claimant's handling of the receipt of payments will be an indicator if vulnerability or perhaps unlikely to pay criterion exist.

A letter will be issued to the claimant, and/or representative acting on behalf of the claimant detailing that interim payments are being made to the claimant. The letter will request further information and/or evidence will be issued along with information about where to obtain further advice.

The probability of rent not being paid and payment of the Local Housing Allowance to the landlord instead of the tenant.

Regulation 96(3A)(b)(ii) of the Housing Benefit Regulations 2006 states that payment of a rent allowance to a persons landlord may be made where the authority considers that it is improbable that the claimant will pay his rent. This regulation gives the Council the discretion to make payment of the LHA direct to a landlord.

The Council need to balance the provisions to pay the landlord directly with the need to promote the aims of the Housing Benefit reforms.

The phrase "is improbable" means that there must be a degree of probability that a tenant will not pay his rent. It is not sufficient to conclude that there is the possibility that a tenant may not pay his rent.

The Benefits Service will assume that all tenants receiving the LHA will pay their rent unless evidence is received, or there are already records available to suggest otherwise. If evidence is received then the Benefits Service will thoroughly investigate each case when considering representations that it is improbable that the claimant will pay his rent.

The Benefits Service need to distinguish between tenants who are genuinely unlikely to pay their rent and those who would prefer not to take responsibility or may be unwilling to pay their rent, by cross-checking information available from other Council Departments or historical records.

Dealing with representations

It would be unusual for a tenant himself to suggest that it is improbable that he will pay his rent. It is therefore more likely that representations will be made by a landlord (past or present) or a third party who can demonstrate experience or knowledge of the tenant's payment history or behaviour.

The Benefits Service will identify potential cases through representation either in person, via the telephone or in writing by one or several of the following sources:

  • Friends and family of the claimant
    The Benefits Service will only accept written representations from friends and family of the claimant with detailed reasons and, where available, evidence as to why the claimant is considered unlikely to pay the rent. Evidence from family and friends alone will provide useful information but other evidence from other sources must support this. A claimant will be referred to the Council's Money Advice Service where applicable. The Benefits Service will not discuss the claimant's claim with family and friends unless the claimant has given consent.
  • The landlord
    All representation must be in writing and include where available, evidence that the claimant is considered unlikely to pay his rent. The landlord (past or present) will have first hand experience of whether a tenant has paid rent previously. There may be legitimate reasons why a tenant has withheld payment of rent for example where a landlord has failed to carry out repairs and the reason for the non-payment needs to be investigated.
  • Welfare groups, Money advisors, Social Services, Doctors and Probation officers
    The Benefits Service will accept representations and evidence from Welfare Groups, Money advisors, Social Work, Doctors and Probation Officers to show that the tenant is unlikely to pay his rent. Persons who have sought money advice, whilst acknowledging that they need support may be unable to deal with their new responsibilities. Advisors dealing with debt problems will have knowledge of the tenant's financial management skills and their evidence will be relevant to the Benefits Service.
  • Jobcentre Plus or Pension Service
    The Benefits Service will accept representations and evidence from Jobcentre Plus and the Pension Service to show that the tenant is unlikely to pay his rent.

Possible indicators that a tenant is unlikely to pay their rent

The credit history could be a useful indicator, arrears of utility charges, letters from the tenant's bank, evidence of unpaid standing orders / direct debits could all indicate that the tenant does not manage his money sufficiently well and is unlikely to do so in the future.

Other indicators include previous Housing Benefit overpayments or rent arrears for an earlier tenancy (Private or Council) and Council Tax arrears. A benefit claimant with a history of rent arrears is more relevant, as this may indicate that a tenant may not place great importance on paying their rent. In situations where records show persistent arrears or a failure to keep to arrangements then the tenant may be considered to be unlikely to pay his rent.

Some tenants may prefer to have their LHA paid direct to a landlord. If a tenant presents himself / herself as having no intention of paying their rent to their landlord then the Benefits Service should only act on the tenants instruction where the consequences could damage the landlord financially and lead to an eviction. The Benefits Service will monitor claims like this more frequently, as the likelihood may be that the claimant would not report changes in circumstances promptly.

Making a decision on payment of rent

The Benefits Service will take into account the following factors when making a decision about paying the LHA to a landlord instead of a tenant.

However, if a tenant is eight weeks or more in arrears then Regulation 95(1) (b) of the Housing Benefit Regulations 2006 applies and payment should be made to the landlord under the statutory provisions provided that it is in the interests of the claimant to make such a payment and that the Benefits Service is satisfied that the landlord is "fit and proper". The Benefits Service will encourage landlords to report arrears earlier rather than just resorting to the eight-week provision. However it should be noted that this is not a discretionary decision made in terms of this Safeguard Policy. This decision is a requirement in terms of the Housing Benefit Regulations.

  • If a tenant is unlikely to pay their rent under Regulation 96 (3A)(b)(ii) but the landlord is not a " fit and proper" person then the Benefits Service will balance the risk to the claimant and their family against the risk presented by the landlord. If the risk to the claimant is considered the greater problem then the payment will be made to the landlord.
  • Where the arrears arose wholly during a period, for which the LHA has not been paid, then the first payment only should be made to the landlord and future payments to the tenant.
  • A tenant who has failed to use Housing Benefit Payments to pay his rent in the past can be assumed to be unlikely to pay his rent unless good reasons for non-payment of rent are provided.
  • Any arrangement that a tenant has made to pay his rent will be taken into account along with all representations and evidence received.

Decisions made regarding likelihood of payment will be made on the basis of the individual circumstances of each claimant, and in conjunction with any supporting evidence and information available.

In addition, the decision must also be in the best interests of the claimant and based on the claimant's ability to manage their financial affairs specifically.

The evidence and information received to establish any criteria/criterion identified should be, where possible, in a written or printable format for retention in the claimant's file. A claimant's inability to provide evidence does not mean that the claimant's circumstances should be accepted or disregarded. Benefit Services staff must be pro-active in obtaining information if the claimant is unable to provide information by cross-checking information available from other Council Departments or appropriate organisations.

A claimant who states that they will not pay their rent should not be deemed to be an unlikely payer on the basis of this statement alone.

A claimant who is withholding payments to their landlord due to outstanding repairs or maintenance cannot be deemed to be an unlikely payer.

In the eventuality that the individual circumstances of the claimant do not meet any of the criterion detailed above or no evidence has been provided or can be obtained, advice should be obtained from the Policy Unit to establish a precedent. If necessary this policy will then be updated as necessary.

If the claimant is deemed to be an unlikely payer the payments should be made direct to the landlord.

If the claimant has rent arrears for their current liability then the Local Authority has the discretion to also pay any excess to the landlord direct. This discretion only applies if the arrears are for rent due but not any other debts outstanding to the landlord.

A decision letter with appeal rights will be issued to the claimant and/or to any representative acting on behalf of the claimant, and to the landlord.

If the claimant is not deemed to be vulnerable then payments should be made direct to the claimant. A letter will be issued as above, including advice on where to obtain money advice, but will not be issued to the landlord.

If a clear or final decision cannot be made on the basis of the information and evidence already received then payments must not be withheld until a decision can be made.

Payments should be made direct to the claimant or, if appropriate, the first payment can be made to the landlord. A review date of one calendar month will be applied. The claimant's handling of the receipt of payments will be an indicator if vulnerability or perhaps unlikely to pay criterion exist.

A letter will be issued to the claimant, and/or representative acting on behalf of the claimant detailing that interim payments are being made to the claimant. The letter will request further information and/or evidence will be issued along with information about where to obtain further advice.

Making a payment to a landlord before reaching a decision

Regulation 96 (3B) of the Housing Benefit Regulations 2006 gives the Council the discretion to make a payment of the LHA to a landlord for a period not exceeding 8 weeks whilst still considering if the LHA payment should be made to a landlord on the grounds that the claimant is either having difficulty managing their own affairs or it is improbable that the claimant will pay his rent. The Council may use this discretion after taking into account the claimant's circumstances and the supporting evidence provided.

Payment of the first Local Housing Allowance to the landlord

Housing Benefit Regulations state that "a first payment of rent allowance following the making of a decision on a claim may be made in whole or in part by sending to the claimant an instrument of payment payable to that landlord"

The Housing Benefit Regulations allow the Council to send the first payment of the LHA to the tenant but with the cheque made payable to the landlord. Only the first payment may be made under this provision. Subsequent payments must be made payable to the tenant unless there are grounds for paying the landlord arising from "unable to manage their affairs" or "unlikely to pay" provisions, as detailed earlier in this document.

The provision can only be made where:

  • the claimant has not already fully met their rental liability, less ineligible charges, for the period covered by the benefit payment, and;
  • it would be in the interests of the efficient administration of housing benefit.

In the cases outlined below the benefits service will make payment of the LHA payable to the landlord. In doing this:

  • It will provide confirmation that a genuine tenancy has been created between landlord and tenant;
  • It reduces the potential of abuse where the initial LHA payment is larger than a normal payment due to a delay in deciding a claim.
  • It will inform the landlord that the Housing Benefit claim has been determined and that they can make arrangements with the tenant regarding future payments of rent

Circumstances when the first payment of LHA should NOT be made payable to the landlord but sent to the tenant's address by cheque or paid by BACS transfer

The Benefits Service will not make the first payment to the landlord when there is information to show that the tenant is likely to have paid the rent for the period covered by the first payment.

The Housing Benefit claim form asks whether the tenant has already made rent payments to the landlord, the date payments were made and requests evidence of this.

Where a tenant has already paid rent to the landlord that covers the period up to the date of the claim, this can be accepted as information that the tenant is likely to have paid their rent for the period covered by the first LHA payment. In these instances the first payment should be made payable to the tenant and not the landlord.

If the landlord is not a "fit and proper person" then the Benefits Service will make payment of the LHA to the tenant.

Circumstances when the first payment of LHA should be made payable to the landlord by cheque but sent to the tenant's address

If a tenant has not paid their rent then the first payment will be made payable to the landlord.

The payment of the LHA will only be up to the value of the rent for the relevant period any excess LHA will be paid to the tenant.

Applicants for direct payments of Local Housing Allowance made to their landlord will be issued with an application form and covering letter to determine their vulnerability under the Policy. Analysis of the claimant's eligibility for direct payments will be assessed according to the claimant's personal circumstances (with regard to their health, social, financial medical or any other extenuating circumstances).

It is proposed to review eligibility for direct payments at 1 to 5 yearly intervals in order to establish ongoing entitlement to such payments.

Tenant has requested that the first payment is not made payable to the landlord

The Housing Benefit claim form advises the tenant that the first LHA payment will be made payable to the landlord where rent is unpaid and invites the claimant to make representations if he finds this to be unsuitable.

Where a tenant does not want the first payment made payable to the landlord the Benefits Service will establish that the tenant occupies the property, that the tenant has a genuine liability and the reasons why the payment should not be made payable to the landlord.

The decision made to make the first payment to the tenant and not the landlord will be based on the facts provided by the tenant and any evidence to support this. The Benefits Service will document the decision reached. The landlord has no right of appeal where the Benefits Service does not consider making the first payment to the landlord.

A cheque that is made payable to a landlord and issued to a tenant that is not cashed and is subsequently made payable to the tenant makes the landlord an affected person. The Benefits Service will inform the landlord of the decision to pay the tenant and offer them a right of appeal. The Benefit claim form will advise the claimant that this procedure will followed to avoid any breach of the Data Protection Act.

Landlord is not considered a "fit and proper" person

The Benefits Service will not make the first payment of the LHA payable to the landlord where a decision to treat a landlord as not a " fit and proper" has been made by the Council unless the payment is for 8 weeks or more and the tenant is in arrears.

Notification of decision & appeal rights

The Benefits Service will not stop or delay the payment of the LHA while deciding upon a case. All persons affected by the Benefits Service decision will be notified of the decision in writing and advised of their appeal rights.

A Person Affected is:

  • A claimant
  • Someone acting on behalf of the claimant who is appointed by the Courts
  • Someone who the Council agrees is appointed to act on behalf of the claimant
  • A landlord - but only in matters relating to whom payment of Benefit is to be made
  • An agent - but only in matters relating to whom payment of Benefit is to be made
  • Any person from whom it is determined an overpayment is to be recovered

Appeals

A person affected can query the Council's decision and request further information about the decision within 1 calendar month of the date on the decision letter.

If the affected person disagrees with the initial review of their housing benefit award they then have the right to appeal to an the Tribunal Service. The request must be in writing and must be received by the Council within one month of the date on the decision notification letter.

Appointees

A person who has been appointed to act on behalf of a claimant who is "unable for the time being to act" will not be viewed as being unable to manage their own affairs. Nor will the claimants they act for, until such times as they cease to have an appointee acting for them.

Review periods

Decisions made under the safeguard policy to pay the local housing allowance direct to a landlord will be reviewed in accordance with the timetable below:

In the event that there is a change of circumstances during the period of review, the original decision will be reviewed to establish if it is still appropriate.

Tenant unable to manage their own affairs Period of review
Evidence received from a Council Service, GP of claimant, DWP, Courts, Financial Institutions that demonstrate that the circumstances of the claimant will be long-term i.e. more than 6 months The decision to make the payment to the landlord will be reviewed 3 years (36 months) after the decision was first made unless evidence is received in the interim period from the same sources that there has been a change of circumstances
Evidence received from a Council Service, GP of claimant, DWP, Courts, Financial Institutions that demonstrate that the circumstances of the claimant will be short-term i.e. less than 6 months or evidence received from other sources The decision to make the payment to the landlord will be reviewed 12 months after the decision was first made unless evidence is received in the interim period from the same sources that there has been a change of circumstances
Tenant is unlikely to pay their rent Period of review
Evidence received from a Council Service, GP of claimant, DWP, Courts, Financial Institutions that demonstrate that the circumstances of the claimant will be long-term i.e. more than 6 months The decision to make the payment to the landlord will be reviewed 3 years (36 months) after the decision was first made unless evidence is received in the interim period from the same sources that there has been a change of circumstances
Evidence received from a Council Service, GP of claimant, DWP, Courts, Financial Institutions that demonstrate that the circumstances of the claimant will be short-term i.e. less than 6 months or evidence received from other sources The decision to make the payment to the landlord will be reviewed 12 months after the decision was first made unless evidence is received in the interim period from the same sources that there has been a change of circumstances

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