Simon Osborne reviews the rules under which housing benefit (HB) claimants can be ‘passported’ to maximum HB.
What is ‘passporting’?
Under the passporting rules, a claimant is automatically treated as having nil income and capital for HB purposes. In short, the passporting is through the HB means test, so that there is no need for a calculation before the maximum amount of HB to which the claimant is otherwise entitled is awarded. The passporting is triggered by the claimant’s entitlement to:
- income support (IS);
- income-based jobseeker’s allowance (JSA);
- income-related employment and support allowance (ESA);
- guarantee credit of pension credit (PC); or
- (where HB may still be awarded) universal credit (UC).
These benefits are referred to in this article as the ‘passporting benefits’.
It is important to remember that the passporting is only for having nil income and capital. No other entitlement rules are automatically satisfied. So, for example, a claimant who would be passported to maximum HB still has to satisfy the usual rules about being eligible for rent, having a tenancy on a commercial basis, etc. Her/his eligible rent is still set using the appropriate rules (eg, under the local housing allowance rules) and may still be reduced by non-dependant deductions. The claimant’s maximum HB and other specified benefits may still be such as to trigger the application of the benefit cap.
Under a completely separate rule, a claimant in receipt of IS or income-related ESA cannot be a ‘person from abroad’ for HB purposes – ie, s/he cannot be held not to satisfy the right to reside or habitual residence tests. The same applies to a claimant in receipt of income-based JSA, but only where s/he has a right to reside which is other than, among others, that of a jobseeker or family member of a jobseeker.1 In short, there is limited passporting through the right to reside and habitual residence tests for recipients of certain other means-tested benefits.
What are the passporting rules?
The relevant rules are set out in the parts of the Housing Benefit Regulations 2006 that deal with the assessment of income and capital – in particular, where a claimant’s income and capital are to be ignored.
Specifically, the whole of a claimant’s income (including earnings) is to be ignored where s/he is ‘on’ IS, income-based JSA, income-related ESA or UC, or where s/he or her/his partner are in ‘receipt of’ the guarantee credit of PC.2 Similarly, the whole of a claimant’s capital is to be ignored where s/he is ‘on’ IS, income-based JSA, income-related ESA or UC, or where s/he or her/his partner are in ‘receipt of’ the guarantee credit of PC.3
For the purposes of these rules, being ‘on’ income-based JSA includes when it is not paid because of a sanction, during waiting days and when it is not paid because of the benefit offence rules. Being ‘on’ income-related ESA includes when it is not paid because of a disqualification and during waiting days. Being ‘on’ UC includes any day of entitlement, even if not in payment.4
Decision making and passporting
Confusion often arises about the extent to which a local authority making a HB decision is bound by the DWP’s decision about the claimant’s entitlement to a passporting benefit. The situation has been clarified by caselaw.
Firstly, the general rule is that a local authority is bound by the DWP awarding entitlement to a passporting benefit, so that the local authority generally must then ignore the whole of the claimant’s income and capital. This was established by the decision of the High Court in R v Penwith District Council ex parte Menear  24 HLR 115, QBD.
The precise meaning of Menear has subsequently been clarified by Judge Wright in AM v Chelmsford Borough Council (HB)  245 (AAC) (Bulletin 237, p13). There, the First-tier Tribunal erred in thinking that Menear meant that even where the claimant was not entitled to IS, both the local authority and the tribunal were bound by the DWP’s finding that the claimant was living together with someone as husband and wife. Rather, Menear was authority for the proposition that where the claimant was on IS, then all of her and her partner’s earnings, income and capital were to be disregarded. But there was nothing that provided that a local authority be similarly bound by a DWP decision, where that decision was that the claimant was not entitled to IS. The only sense in which the local authority (and tribunal) was bound was by the finding that the claimant was not entitled to IS – ie, so that the passporting rules could not be applied and an assessment of income and capital had to be made. Also, even where Menear did apply, the binding was limited to findings about income and capital, not to any other issue of fact.
The two exceptions to the general rule established by Menear and clarified by AM v Chelmsford Borough Council (HB) are where:
- even despite the award of a passporting benefit, the local authority has a reasonable doubt about the claimant’s entitlement to HB, in which case it may suspend payment and investigate; and
- the local authority has good reason to believe that the claimant obtained entitlement to the passporting benefit via fraud. This exception to Menear was approved by the Court of Appeal in R v South Ribble DC HBRB ex parte Hamilton  33 HLR 102, CA. It is at least arguable, however, that even this exception should not apply where the DWP has examined the claim and decided that there is no fraud.
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