Andrew Young is a consultant in the field of housing and
learning difficulties and has a special interest in benefits. He is
an adviser for Housing Options, a national service for people with
learning difficulties and their carers. He also works with
Hertfordshire Council’s money advice unit.
Philip Brewer is a young man with Asperger’s syndrome. He has
difficulty coping with the outside world and there are many areas
of his life in which he needs support. Predictably, his council has
no services for him or others like him; no specialised community
support, no housing and no way of providing him with the means to
move on to independence.
His only carer and supporter is Lawrence, his father. Lawrence
could see that, without a place of his own, his son would never
reach any real adulthood and that the whole family would be trapped
in a cycle of interdependence.
Lawrence’s answer to the lack of outside help was simple: he built
a self-contained annex for his son, which Philip moved into in
November 2002 on leasehold terms agreed between the two of them.
Lawrence had sought information from the council’s housing benefit
department about Philip’s entitlement, but no clear answers were
In the event, Philip received no housing benefit. Seven months
after claiming, he was told he would not be given help because the
council had decided that his tenancy was “non-commercial”. Lawrence
appealed on Philip’s behalf. This was heard by a local appeal
tribunal in November 2003. The tribunal sided with the council and
so Philip was left with no means of paying the rent to which his
father was legally entitled.
Philip’s case shows how the housing benefit regulations can
undermine cost-effective and individually centred responses to the
housing needs of people with learning difficulties, autism or
The regulations give local authorities the discretion to decide
that people are not liable to make payments for the place they live
in if the council believes the tenancy is not “on a commercial
basis”. What is a commercial basis? This is up to the authority to
decide and the concept has given rise to various test cases. In
Philip’s situation the local authority and the tribunal took the
view that Lawrence’s supportive role and the fact that he is
Philip’s father meant that there could not be a commercial
Although support and counselling charges for people in Philip’s
situation are now paid through the Supporting People programme, the
rent for the actual accommodation and other service charges is
still paid for by housing benefit when the tenant is on a limited
income. In practice, most people with intellectual disabilities
will need it when they are living independently, but there are
several ways in which the intricacy of housing benefit rules can
sabotage well thought-out housing plans. Local authorities can
refuse housing benefit on the basis that there is no real liability
to pay rent – that is if they think that the arrangement is a sham.
Even when it is accepted that there is a liability to pay, there
are a dozen reasons why a tenant can be treated as though there is
no such liability, and so will not receive any housing benefit.
Many of these reasons are for specific situations, but there is a
catch-all: refusing payment for any arrangement that they think has
been made up to take advantage of the housing benefit scheme.
Another problem which often crops up is the shortfall between what
the landlord charges and the figure upon which the council bases
its calculation for housing benefit. This might not be a big
problem if you can take a new job or move somewhere cheaper, but
for someone who is likely to rely on benefits all their life and
who may desperately need some consistency and stability, it can be
stressful and destructive.
Even where the landlord is a housing association or a charity, the
local authority can still decide to pay you less than your full
rent if your accommodation is deemed to be too large or expensive.
Some social services departments have tried to shore up tenancy
arrangements hit by this shortfall by making payments so that the
tenant does not get evicted. Unfortunately, this is often
self-defeating as other benefit regulations mean that tenants can
lose a lot of their income because of this help. Each local
authority has a budget for discretionary payments but these are
limited and tend to be spread too thinly to be a long-term
There are some justifications for these restrictions on housing
benefit entitlement: paying less housing benefit than the actual
rent was part of an attempt to regulate those charged in the
private market when rent control was scrapped. Refusing housing
benefit on the grounds of tenancies being “non-commercial” or
“contrived” can be viewed as a legitimate attempt to stop the
unscrupulous receiving public funds to which they are not
However, where supported and independent living for people with
intellectual disabilities are concerned, these rules are
For every Lawrence Brewer, who spent his capital and energy in
solving his son’s housing problem, there are many who would do the
same but who are put off by the complexity of the housing benefit
system and by the uncertainty around whether their ideas will stack
up financially. This is a waste of goodwill and private resources
which would otherwise go a long way to helping some people with
long-term disabilities have their own accommodation and prospects
What should be done? A simple change would be for the housing
benefit rules to accept that any tenancy which helps answer the
tenant’s community care needs is treated as a commercial tenancy
and so eligible for housing benefit. There also needs to be closer
co-operation between social services and housing benefit
departments so that planned independent living schemes can be given
approval for entitlement with rent agreed up front. The rules on
allowable rent levels need to be made more generous so that
disabled tenants do not have to cope with a shortfall on their
Lawrence took the appeal process one step further to the social
security commissioner, who ruled in his favour. In a recent
judgment, the commissioner said that there was nothing in the
family relationship in itself that prevented the tenancy
arrangement being a commercial one. And so, 18 months on, Philip
may finally get his rent. A good result for the Brewers, but how
many people have the stamina or the available support and expertise
to take things so far down the line?
Although this case has helped clarify how the housing benefit rules
should be interpreted, it is still a fact that anyone considering
providing accommodation for a relative is faced with uncertainties
and should take as much advice as possible beforehand, if only so
that they can be aware of the complexities that may arise.
Putting together an independent living package is a jigsaw, with
housing benefit the part that does not fit well. A change of
housing benefit regulation is needed to remedy this.
The value of carers’ work is accepted by all. Yet a vital part
of the system continues to penalise them, particularly parents
whose children need supported independence. This article looks at
the often obstructive way housing benefit rules are interpreted,
and at a recent legal decision which may make life easier for
parents wanting to provide accommodation for their children.
The 1987 Housing Benefit Regulations (as amended in 1996) are
the ones discussed here. Legal cases on this subject can be seen