The Rent Officers (Housing Benefit Functions) (Scotland) Order 1997

Made: 15th August 1997

Laid before Parliament: 15th August 1997

Coming into force

The Secretary of State, in exercise of the powers conferred upon him by section 70(1) and (2) of the Housing (Scotland) Act 1988, and of all other powers enabling him in that behalf, hereby makes the following Order:

Citation and commencement

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• (1) This Order may be cited as the Rent Officers (Housing Benefit Functions) (Scotland) Order 1997.

• (2) This Order shall come into force for the purposes of article 8 on 18th August 1997 and for all other purposes on 3rd September 1997.

Interpretation

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• (1) In this Order, unless the context otherwise requires–

• ...

• “assured tenancy" has the same meaning as in Part II of the Housing (Scotland) Act 1988, except that it includes a tenancy which would be an assured tenancy but for paragraph 7 or 9 of Schedule 4 to that Act;

• “board and attendance determination” means a determination made in accordance with article 4C;

• “broad rental market area” has the meaning specified in paragraph 4 of Part I of Schedule 3A or paragraph 4 of Schedule 3B, as the case may be, to this Order;

• “broad rental market area” has the meaning specified in paragraph 4 of Schedule 3B; “broad rental market area determination” means a determination made in accordance with article 4B(1) or 4B(1A), as the case may be;

• “broad rental market area determination” means a determination made in accordance with article 4B(1A); “child" means a person under the age of 16;

• “determination" means a determination made in accordance with Part I or IV of Schedule 1 to this Order;

• “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;

• “hostel” has the same meaning as in regulation 2(1) of the Housing Benefit Regulations or, as the case may be, regulation 2(1) of the Housing Benefit (State Pension Credit) Regulations;

• “the Housing Benefit Regulations” means the Housing Benefit Regulations 2006;

• “the Housing Benefit (State Pension Credit) Regulations” means the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006;

• “local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

• “local housing allowance determination” means a determination made in accordance with article 4B(2) or article 4B(2A), as the case may be;

• “local housing allowance determination” means a determination made in accordance with article 4B(2A); “occupier" means a person (whether or not identified by name) who is stated, in the application for the determination, to occupy the dwelling as his home;

• “pathfinder authority” means a local authority specified in column (1) of the table in Part II of Schedule 3A, on and after the date specified in column (2) of that table in relation to that authority;

• “person who requires overnight care” has the meaning given by regulation 2(1) of the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations;

• “redetermination" means a redetermination made in accordance with article 4;

• “relevant date” means the date specified by a pathfinder authority in an application for a local housing allowance determination made in accordance with regulation 13A(4)(a) of the Housing Benefit Regulations F3 or, as the case may be, regulation 13A(4)(a) of the Housing Benefit (State Pension Credit) Regulations;

• “relevant date” means the date specified by a local authority in an application for a local housing allowance determination made in accordance with regulation 13D(7)(a) of the Housing Benefit Regulations or, as the case may be, regulation 13D(7)(a) of the Housing Benefit (State Pension Credit) Regulations; “relevant period” means–in relation to a determination, the period of five working days (or, where the determination does not relate to a prospective tenancy and the rent officer intends to inspect the dwelling before making the determination, 25 working days) beginning with–where the rent officer requests further information under article 5, the date on which he receives the information; andin any other case, the date on which he receives the application for the determination; andin relation to a redetermination, the period of 20 working days beginning with–where the rent officer requests further information under article 5, the date on which he receives the information; andin any other case, the date on which he receives the application for that redetermination;

• “relevant time" means the time the application for the determination or board and attendance determination is made or, if earlier, the tenancy ends;

• “rent” means any of the periodical payments referred to in regulation 12(1) of the Housing Benefit Regulations or, as the case may be, regulation 12(1) of the Housing Benefit (State Pension Credit) Regulations;“size criteria" means the standards relating to bedrooms and rooms suitable for living in specified in Schedule 2 to this Order;

• “tenancy" includes any other right of occupancy and a prospective tenancy or right of occupancy and references to a tenant, a landlord or any other expression appropriate to a tenancy shall be construed accordingly; and

• ...

• working day” means any day other than a Saturday, a Sunday or a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971.

• (2) In this Order any reference to a notice or application is to a notice or application in writing, except in a case where the recipient consents (whether generally or specifically) to the notice or application being transmitted by electronic means.

Determinations

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• (1) Subject to articles 3A and 6, where a local authority, in accordance with regulations made under section 136(2) or (3) of the Social Security Administration Act 1992 or section 122(5) of the Housing Act 1996, applies to a rent officer for determinations in respect of a tenancy of a dwelling, a rent officer shall–

• (a) make the determinations in accordance with Part I of Schedule 1 (determinations);

• (b) comply with Part II of Schedule 1 when making the determinations (assumptions etc.); and

• (c) give notice in accordance with Part III of Schedule 1 (notifications) within the relevant period or as soon as is practicable after that period.

• (2) A rent officer for each registration area (within the meaning of section 43 of the Rent (Scotland) Act 1984 ) on the first working day of each month shall–

• (a) make determinations in accordance with Part IV of Schedule 1 (indicative rent levels) in relation to the area of each local authority, except for a local authority which is a pathfinder authority, within the registration area except in relation to the area of a local authority which is a pathfinder authority;

• (b) comply with paragraph 8(2) of Part II of Schedule 1 (assumptions etc.) when making the determinations; and

• (c) give to the local authority notice of the determinations relating to its area when they have been made.

Redeterminations

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• (1) Subject to article 6, where the local authority applies to a rent officer for a redetermination of any determination or redetermination in respect of a tenancy of a dwelling the rent officer shall, in accordance with Schedule 3–

• (a) make redeterminations of any effective determinations and any effective redeterminations in respect of that tenancy; and

• (b) give notice within the relevant period or as soon as is practicable after that period.

• (2) For the purposes of paragraph (1)–

• (a) “effective determinations” means any determinations made in accordance with Part I of Schedule 1 which have effect at the date of the application for a redetermination of a determination or redetermination; and

• (b) “effective redeterminations” means any redeterminations made in accordance with Schedule 3 which have effect at that date.

• (3) A rent officer whose advice is sought as provided for in Schedule 3 shall give that advice.

Insufficient information

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If a rent officer needs further information in order to make a determination under article 3(1), a redetermination under article 4, a board and attendance determination under article 4C or a board and attendance redetermination under article 4D, he shall serve notice on the local authority requesting that information where the information supplied under regulation 114A of the Housing Benefit Regulations or regulation 95A of the Housing Benefit (State Pension Credit) Regulations was incomplete or incorrect, he shall serve notice on the local authority requesting it to supply the further information required under regulation 114A or regulation 95A, as the case may be, or to confirm whether the information already supplied is correct and, if it is not, to supply the correct information ....

Exceptions

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• (1) No determination, redetermination, board and attendance determination or board and attendance redetermination shall be made if the application for it is withdrawn.

• (2) No determination shall be made under paragraph 3, 4 or 5 of Part I of Schedule 1 if the tenancy is of residential accommodation, within the meaning of regulation 9(4) of the Housing Benefit Regulations or, as the case may be, regulation 9(4) of the Housing Benefit (State Pension Credit) Regulations, or in a hostel.

• (3) No determination shall be made under paragraph 5 of Part I of Schedule 1 unless the local authority states in the application that the claimant is, or may be, a young individual (which has the same meaning as in the Housing Benefit Regulations and the Housing Benefit (State Pension Credit) Regulations).

• (4) If the rent officer becomes aware that an application is not one which gives rise to a duty to make a determination, redetermination, board and attendance determination or a board and attendance redetermination, the rent officer shall give the local authority notice to that effect.

Special cases

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• (1) This Order shall apply as specified in Schedule 4 in relation to–

• (a) mooring charges payable for a houseboat;

• (b) payments in respect of the site on which a caravan or a mobile home stands; or

• (c) payments under a rental purchase agreement.

• (2) Terms used in paragraph (1) have the same meaning in this article and in Schedule 4 as they have in regulation 12(1) of the Housing Benefit Regulations or, as the case may be, regulation 12(1) of the Housing Benefit (State Pension Credit) Regulations.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment to 1995 Order

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• (1) The Rent Officers (Additional Functions) (Scotland) Order 1995 shall be amended by the insertion at the end of article 6 (special cases) of the following:–

(3) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support services which are eligible for housing benefit solely by virtue of paragraph 1(f)(iii) of Schedule 1 to the 1987 Regulations (landlord’s support services: supported accommodation) or solely by virtue of that provision and paragraph 1(f)(ii) of that Schedule, the rent officer shall assume when making a determination or a redetermination that– (a) the services were not to be provided or made available; and (b) the rent payable under the tenancy at the relevant time is such amount as is specified in the application as the rent which would have been payable under the tenancy at that time if those items were not to be provided or made available. (4) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support services and the charges– (a) are eligible for housing benefit by virtue of paragraph 1(f)(iii) of Schedule 1 to the 1987 Regulations, or that provision and paragraph 1(f)(ii) of that Schedule; and (b) are also eligible for housing benefit by virtue of paragraph 1(f)(i) of that Schedule (support services: other exceptions), the rent officer shall include in the notice to the local authority, required under article 3(1)(c), a statement of the amount of the rent payable for the tenancy (which has the same meaning as in paragraph 3(1) of Schedule 1 to this Order) which relates to those charges.

• (2) The amendment made by paragraph (1) above does not have effect in a case where an application for a determination is made before 18th August 1997.

Revocations and application

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• (1) Subject to paragraph (2), article 8 of this Order and the Orders specified in Schedule 5 are hereby revoked.

• (2) Nothing in articles 2 to 7 has effect in a case where an application for a determination is made before 3rd September 1997 and, in such a case, the Rent Officers (Additional Functions) (Scotland) Order 1995 shall continue to have effect.

SCHEDULE 1

PART I — DETERMINATIONS

Significantly high rents

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• (1) The rent officer shall determine whether, in his 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 rent officer determines under sub-paragraph (1) that the rent is significantly higher, the rent officer shall also determine the rent which the landlord might reasonably have been expected to obtain under the tenancy at the relevant time.

• (3) When making a determination under this paragraph, the rent officer shall have regard to the level of rent under similar tenancies of similar dwellings in the vicinity (or as similar as regards tenancy, dwelling and vicinity 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.

• (4) For the purposes of this paragraph and paragraph 2 “vicinity” means—

• (a) the area immediately surrounding the dwelling; or

• (b) where, for the purposes of sub-paragraph (2)(c) of paragraph 2, there is no dwelling in the area immediately surrounding the dwelling which satisfies the description in heads (i), (ii) and (iii) of that sub-paragraph, the area nearest to the dwelling where there is such a dwelling.

Size and rent

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• (1) The rent officer shall determine whether the dwelling, at the relevant time, exceeds the size criteria for the occupiers.

• (2) If the rent officer determines that the dwelling exceeds the size criteria, the rent officer shall also determine 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 vicinity 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 rent officer’s opinion, as closely as is reasonably practicable to the dwelling.

• (3) When making a determination under sub-paragraph (2), the rent officer 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

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• (1) The rent officer shall determine whether, in his 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 determination is made under sub-paragraph (2) of paragraph 2, the rent determined under that sub-paragraph;

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

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

• (3) If the rent officer determines under sub-paragraph (1) that the rent is exceptionally high, the rent officer shall also determine 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 assured tenancy of a dwelling which–

• (a) is in the same neighbourhood 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 determining whether a rent is an exceptionally high rent under this paragraph, the rent officer shall have regard to the levels of rent under assured tenancies of dwellings which–

• (a) are in the same neighbourhood 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 of criteria).

• (5) For the purposes of this paragraph and paragraph 4(6) “neighbourhood” means—

• (a) where the dwelling is in a town or city, the part of that town or city where the dwelling is located which is a distinct area of residential accommodation; or

• (b) where the dwelling is not in a town or city, the area surrounding the dwelling which is a distinct area of residential accommodation and where there are dwellings satisfying the description in sub-paragraph (4)(b).

Local reference rents

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• (1) The rent officer shall make a determination of a local rent in accordance with the formula–