The Housing Benefit (Subsidy) Order 1990

• Citation: S.I. 1990/785
• Sections: 30

Section 1 Citation, commencement and interpretation

(1) This Order which may be cited as the Housing Benefit (Subsidy) Order 1990 shall come into force on 20th April 1990.

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

“ the Act ” means the Social Security Act 1986;

“allowance” means a rent allowance;

“authority” means a housing, rating or local authority or, as the case may be, in Scotland, a levying authority;

“rebate” means a rent, rate or community charge rebate;

“relevant date” has the same meaning as in Schedule 4;

“relevant year” means the year ending 31st March 1990;

“scheme” means the housing benefit scheme as defined in section 28 of the Act;

“subsidy” means subsidy under section 30(1) or (1A) of the Act (rate rebate, rent rebate, rent allowance and community charge rebate subsidy) ;

“ the Regulations ” mean the Housing Benefit (General) Regulations 1987 ;

“the Rent Officers Order ” means the Rent Officers (Additional Functions) Order 1989 or, as the case may be, the Rent Officers (Additional Functions) (Scotland) Order 1989 ;

“the Scottish Regulations ” means the Housing Benefit (Community Charge Rebates) (Scotland) Regulations 1988 ;

“termination date” has the same meaning as in Schedule 4,

and other expressions shall have the same meaning as in the Regulations or, as the case may be, the Scottish Regulations.

(3) In this Order “qualifying expenditure” means the total of rebates and allowances granted by the authority during the relevant year, less–

(a) the deductions specified in articles 7 and 13; and

(b) where, under sub-section (6) of section 28 of the Act (arrangements for housing benefit), the authority has modified any part of the scheme administered by it, any amount by which the total of the rebates or allowances which it granted under the scheme during the relevant year exceeds the total of those which it would have granted if the scheme had not been so modified.

(4) In this Order, reference to a numbered article or Schedule is to the article in, or Schedule to, this Order bearing that number and, unless the context otherwise requires, reference in an article or a Schedule to a numbered paragraph is to the paragraph bearing that number in that article or that Schedule.

Section 2 Amount of subsidy

The amount of an authority’s subsidy for the relevant year–

(a) for the purposes of section 30(2) of the Act (subsidy in respect of rebates or allowances) shall be the amount or total of the amounts calculated in accordance with article 3;

(b) for the purposes of section 30(3) of the Act (subsidy in respect of the costs of administering housing benefit) may include an additional sum in respect of the cost of administering housing benefit calculated in accordance with Schedule 1.

Section 3 Rebates and allowances

(1) For the purposes of section 30(2) of the Act, an authority’s subsidy for the relevant year shall, subject to paragraph (2), be–

(a) in the case of an authority to which articles 4, 5, 6, 8, 9, 10 and 11 do not apply, 97 per cent. of its qualifying expenditure;

(b) in the case of an authority to which at least one of those articles is relevant–

(i) 97 per cent. of so much of its qualifying expenditure as remains after deducting the amount of the rebates or allowances to which each of those articles which is relevant applies; and

(ii) the appropriate amount calculated in respect of the rebates or allowances under each such article,

plus, in each case, the addition, where applicable, under article 12.

(2) Where the authority is the Scottish Homes or a new town corporation in Scotland, its subsidy for the relevant year shall include a further sum being–

(a) in the case of an authority to which sub-paragraph (a) of paragraph (1) applies, 3.5 per cent. of its qualifying expenditure but subject to the relevant maximum specified in column (2) of Schedule 2; or

(b) in the case of an authority to which sub-paragraph (b) of paragraph (1) applies, 3.5 per cent. of so much of its qualifying expenditure as remains after the deductions set out in paragraph (1)(b)(i), but subject to the relevant maximum specified in column (2) of Schedule 2.

Section 4 Backdated payments

(1) Subject to paragraph (2), where–

(a) during the relevant year an authority has, under paragraph (15) of regulation 72 of the Regulations or, as the case may be, paragraph (18) of regulation 59 of the Scottish Regulations (time and manner in which claims are to be made), treated any claim for a rebate or allowance as made on a day earlier than that on which it is made; and

(b) any part of that authority’s qualifying expenditure is attributable to such earlier period,

for the purposes of article 3(1)(b), the appropriate amount for the relevant year in respect of such part shall be 25 per cent. of the qualifying expenditure so attributable.

(2) This article shall not apply in a case to which article 9 applies.

Section 5 Disproportionate rent increase

(1) Where the average rent increase of an authority’s Category A tenants is greater than the average rent increase of their Category B tenants, for the purposes of article 3(1)(b), the appropriate amount for such part of the qualifying expenditure as is attributable to rent rebates granted during the relevant year shall be–

(a) 25 per cent. of that portion of the qualifying expenditure as is determined in accordance with paragraph (3); and

(b) 97 per cent. of the balance.

(2) For the purposes of paragraph (1), the average rent increase shall be determined by comparing the average rents of Category A tenants or, as the case may be, Category B tenants on the first relevant date with their average rent on the second relevant date.

(3) For the purposes of paragraph (1)(a), the portion of the qualifying expenditure shall be determined in accordance with the formula–

Where–

A is the total of rent rebates granted by the authority to Category A tenants and other tenants during the relevant year;

B is the amount calculated in accordance with the formula–

C is the amount calculated in accordance with the formula–

D is the average rent for Category B tenants on the second relevant date;

E is the average rent for Category B tenants on the first relevant date;

F is the average rent for Category A tenants on the second relevant date;

G is the average rent for Category A tenants on the first relevant date.

(4) In this article–

“Category A tenants” means tenants of the authority who on the first and second relevant dates are in receipt of rent rebates and reside at the same address on both dates;

“Category B tenants” means tenants of the authority who are not in receipt of rent rebates on the first and second relevant dates but reside at the same address on both dates;

“first relevant date” means a date, other than a day falling in a rent free period, determined by the authority occurring in March 1989; and

“second relevant date” means the same date occurring in March 1990 but if that date falls in a rent free period the nearest date in March 1990 to that date which is not in a rent free period;

“rent” means either–

the payments specified in sub-paragraphs (a) to (j) in paragraph (1) of regulation 10 of the Regulations (rent); or

the eligible rent,

as the authority may determine, provided that wherever the expression “rent” occurs in paragraphs (1) to (3) it has the same meaning throughout.

(5) This article shall not apply in a case to which article 9 applies.

Section 6 Treatment of high rents

(1) Subject to paragraphs (3) and (4), where any part of the qualifying expenditure of an authority within an area listed in column 1 of Schedule 3 is attributable to any allowance granted in respect of a person whose weekly eligible rent exceeds the threshold specified in relation to that authority in column 2 of that Schedule for the purposes of article 3(1)(b), the appropriate amount in respect of that allowance shall be calculated in accordance with paragraph (2).

(2) Where paragraph (1) applies–

(a) if the allowance granted is the same as or is less than the excess of eligible rent over the threshold, the appropriate amount shall be 25 per cent. of the qualifying expenditure attributable to such allowance;

(b) if the allowance granted is greater than the excess of the eligible rent over the threshold, the appropriate amount shall be the aggregate of 25 per cent. of the portion of the qualifying expenditure attributable to such allowance which is equal to the excess and 97 per cent. of the balance.

(3) Paragraph (1) shall not apply to an allowance payable by an authority in respect of–

(a) rents which exceed the threshold and which are registered in respect of a dwelling under Part IV, V or VI of the Rent Act 1977 or Part V, VI or VII of the Rent (Scotland) Act 1984 or which have been determined by a rent assessment committee in respect of a dwelling under Part I of the Housing Act 1988 or Part II of the Housing (Scotland) Act 1988 ; or

(b) rents which exceed the threshold and which have been referred to the rent officer under the Rent Act 1977 or the Rent (Scotland) Act 1984 but not registered by him because he is satisfied the rent is at or below the fair rent level and he has in writing so notified the authority; or

(c) rents which exceed the threshold where the relevant tenancy is one to which, before 15th January 1989, the provisions of sections 56 to 58 of the Housing Act 1980 applied .

(4) This article shall not apply in a case to which article 7 or 9 applies.

Section 7 Rent Officers' determinations

(1) Where this article applies the deductions referred to in article 1(3) are deductions, from allowances granted in respect of the period beginning on the relevant date and ending on the termination date, calculated in accordance with Schedule 4.

(2) Subject to article 8, this article applies where–

(a) an authority applies to a rent officer for a determination in relation to a dwelling under the Rent Officers Order; and

(b) the officer makes a determination under that Order.

(3) Except where paragraph (4) applies, and subject to article 8, this article applies where an authority could have applied for a determination in relation to a dwelling during the relevant year under Schedule 1 to the Rent Officers Order which a rent officer would have been required to make but the authority fails to apply for the determination.

(4) Subject to article 8, this article applies where an authority makes an application to a rent officer for a determination in a pre-commencement case under regulation 12A(5) of the Regulations; and for the purposes of calculating the deduction under this article the assumptions made in paragraph (6) of that regulation shall apply.

(5) This article applies where–

(a) the dwelling (A) is in a hostel; and

(b) by virtue of regulation 12A(2) of the Regulations an application for a determination in respect of that dwelling is not required because the dwelling is regarded as similar to another dwelling (B) in that hostel in respect of which a determination has been made, and in such a case the determination made in respect of dwelling (B) shall, for the purposes of this article, be treated as if it were a determination in respect of dwelling (A).

(6) Subject to article 8, this article applies where a rent officer has made a determination in respect of a tenancy of a dwelling and by virtue of paragraph 1 of Schedule 2 to the Rent Officers Order a new determination is not required in respect of another tenancy of the dwelling, and in such a case the determination made shall, for the purposes of this article, be treated as if it were a determination made in respect of that tenancy.

(7) Where a determination as to the rent which a landlord might reasonably be expected to obtain in respect of a dwelling is made by a rent assessment committee following a determination made by a rent officer under paragraph 1 of Schedule 1 to the Rent Officers Order, this article shall cease to apply in so far as it relates to a determination made by a rent officer under paragraph 1 of Schedule 1 to the Rent Officers Order from the date on which the committee’s determination takes effect.

Section 8 Exception to article 7

(1) This article shall apply in the case of any allowances granted in respect of a period ending not later than 31st October 1989 in the case of which–

(a) disregarding this article, article 7 would apply otherwise than by virtue of paragraph (5) thereof, and

(b) if article 7 did not apply, article 6 would apply,

in this article referred to as “the relevant allowances”.

(2) Where the authority–

(a) has made estimates of its likely subsidy in respect of the relevant allowances on the basis of proposals made by the Secretary of State as to the provisions now made by article 6 and Schedule 3 (disregarding the reference in article 6(4) to article 7), and

(b) has good reason for not making the calculations required by Schedule 4,

then in the case of the relevant allowances article 7 shall not apply and, accordingly, article 6 shall apply.

Section 9 Treatment of certain residential accommodation

Where any part of an authority’s qualifying expenditure is attributable to rebates or allowances granted under the Social Security and Housing Benefits Act 1982 to persons in respect of accommodation provided under–

(a) sections 21 to 24 and 26 of the National Assistance Act 1948 (provision of accommodation); or

(b) section 21(1) of and paragraph 1 or 2 of Schedule 8 to the National Health Service Act 1977 (prevention, care and after-care); or

(c) section 59 of the Social Work (Scotland) Act 1968 (provision of residential and other establishments) where board is available to the claimant,

for the purposes of article 3(1)(b), the appropriate amount for the relevant year in respect of such part shall be 90 per cent. of the qualifying expenditure so attributable.

Section 10 Homeless cases

(1) Where any part of an authority’s qualifying expenditure is attributable to a rebate granted in respect of the reasonable amount which a person is required to pay to an authority under section 69(2)(b) of the Housing Act 1985 for board and lodging accommodation made available to that person, for the purposes of article 3(1)(b), the appropriate amount shall be–

(a) if the rebate granted is the same as or less than the difference between the weekly eligible rent and the appropriate maximum amount, nil per cent. of the qualifying expenditure attributable to such rebate;

(b) if the rebate granted is greater than the difference between the weekly eligible rent and the appropriate maximum amount, nil per cent. of the portion of qualifying expenditure attributable to such rebate which is equal to the excess and 97 per cent. of the balance.

(2) In paragraph (1) the appropriate maximum amount shall be determined in accordance with the formula–

Where–

A is the weekly amount specified in column (2) of Schedule 5 in relation to an authority specified in column (1) of that Schedule;

B is the number equal to the number of persons aged 11 or over in respect of whom the accommodation has been made available; and

C is the product of £6 multiplied by the number equal to the number of persons aged under 11 in respect of whom the accommodation has been made available.

(3) In this article “board and lodging accommodation” means–

(a) accommodation provided for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which are both cooked or prepared and consumed in that accommodation or associated premises; or

(b) accommodation provided in a hotel, guest house, lodging home or some similar establishment,

but it does not include accommodation in a residential care home or nursing home within the meaning of the Income Support (General) Regulations 1987 nor in a hostel within the meaning of regulation 12A of the Regulations .

Section 11 Overpayment of rebates or allowances

(1) Where any part of an authority’s qualifying expenditure is attributable to an overpayment of rebates or allowances made and discovered in the relevant year, for the purposes of article 3(1)(b), the appropriate amount for the year in respect of such part shall be calculated in accordance with paragraph (2).

(2) Subject to paragraph (3), the appropriate amount shall be–

(a) in the case of an overpayment caused by an error of the authority making the payment, 15 per cent. of the qualifying expenditure attributable to the overpayment; and

(b) in the case of an overpayment caused by official error, 97 per cent. of so much of the qualifying expenditure attributable to the overpayment as has not been recovered by the authority; and

(c) in the case of any other overpayment, 30 per cent. of the qualifying expenditure attributable to the overpayment.

(3) In paragraph 2(b) “overpayment caused by official error” means an overpayment caused by a mistake made or something done or omitted to be done by an officer of the Department of Social Security or the Department of Employment, acting as such, or a decision of an adjudication officer appointed in accordance with section 97(1) of the Social Security Act 1975 where the claimant, a person acting on his behalf or any other person to whom the payment is made did not cause or materially contribute to that mistake, act or omission.

(4) This article shall not apply in a case to which paragraph (15) of regulation 72 of the Regulations or, as the case may be, paragraph (18) of regulation 59 of the Scottish Regulations (time and manner in which claims are to be made) applies.

Section 12 Addition to subsidy

Where, following the loss, destruction or non-receipt, or alleged loss, destruction or non-receipt of original instruments of payment, an authority makes duplicate payments and the original instruments have been or are subsequently encashed, the addition referred to in article 3(1) shall be equal to 30 per cent. of the amount of the duplicate payments.

Section 13 Deductions to be made in calculating subsidy in respect of rebates or allowances

(1) The deductions referred to in article 1(3) are of the following amounts where–

(a) a tenant of an authority, who is in receipt of rent rebate, while continuing to occupy, or when entering into occupation of, a dwelling as his home, either under his existing tenancy agreement or by entering into a new tenancy agreement–

(i) is during, or was at any time prior to, the relevant year able to choose whether or not to be provided with any services, facilities or rights and chooses or chose to be so provided; or

(ii) is during, or was at any time prior to, the relevant year able to choose either to be provided with any services or facilities or, whether or not in return for an award or grant from the authority, to provide such services or facilities for himself; or

(iii) would be able during, or would have been able at any time prior to, the relevant year to exercise the choice set out in sub-paragraph (i) or (ii) of this paragraph if he were not or had not at that time been in receipt of a rent rebate,

the amounts attributable during the relevant year to such services, facilities or rights whether they are or would be expressed as part of the sum fixed as rent, otherwise reserved as rent or expressed as an award or grant from the authority;

(b) during the relevant year a person becomes entitled to a rent-free period which has not been, or does not fall to be, taken into account in calculating the amount of rent rebate to which he is entitled under the Regulations, the amount of rebate which is or was payable to him in respect of such rent free period;

(c) during the relevant year an award in the form of a payment of money or monies worth, a credit to the person’s rent account or in some other form is made by an authority to one of its tenants in receipt of rent rebate, whether or not the person is immediately entitled to the award, the amount or value of the award, but no such deduction shall be made in respect of an award–

(i) made to a tenant for a reason unrelated to the fact that he is a tenant;

(ii) made under a statutory obligation;

(iii) made under section 137 of the Local Government Act 1972 (power of local authorities to incur expenditure for certain purposes not otherwise authorised);

(iv) except where sub-paragraph (a)(ii) applies, made as reasonable compensa tion for reasonable repairs or redecoration the tenant has, or has caused to be, carried out whether for payment or not and which the authority would otherwise have carried out or have been required to carry out; or

(v) of a reasonable amount made as compensation for loss, damage or inconvenience of a kind which occurs only exceptionally suffered by the tenant by virtue of his occupation of his home;

(d) during the relevant year the weekly amount of rebate or allowance is increased under paragraph (8) of regulation 69 of the Regulations or, as the case may be, regulation 57 of the Scottish Regulations (calculations of weekly amounts), the amount of such increase;

(e) during the relevant year a rebate has been paid in advance and an overpayment has occurred because a change in the circumstances of the recipient has reduced or eliminated entitlement to such rebate, the amount overpaid calculated from the end of the second benefit week after the recipient has disclosed such change of circumstances to the authority;

(f) during the relevant year it is discovered that a rebate or allowance has been paid under the Social Security and Housing Benefits Act 1982 in excess of entitlement, the amount of such overpayment;

(g) except where paragraph (h) applies, where during the relevant year it is discovered that an overpayment of rebate or allowance has been made in the preceding year an amount equal to–

(i) in the case of an overpayment caused by an error of the authority making the payment, 85 per cent. of the overpayment;

(ii) in the case of an overpayment caused by official error within the meaning of article 11(3), 3 per cent. of so much of the overpayment as has not been recovered by the authority; or

(iii) in the case of any other overpayment, 70 per cent. of the overpayment;

(h) where during the relevant year it is discovered that an overpayment of rebate or allowance has been made in the preceding year in circumstances to which regulation 91A of the Regulations (payment on account of a rent or rate rebate) or regulation 4A of the Housing Benefit (Transitional) Regulations 1987 (payments on account of housing benefit applied), the amount of such overpayment.

Section 14 Modification of subsidy on payments in excess of entitlement made before 1 April 1988

(1) Notwithstanding any provision made under the Social Security and Housing Benefits Act 1982 in respect of housing benefit paid in excess of entitlement, where an overpayment of benefit to which any such provision applies made before 1st April 1988 under that Act in a certificated case is discovered in the relevant year an authority’s subsidy in respect of such a payment shall be calculated as set out in paragraph (2).

(2) The amount of that subsidy shall be–

(a) in the case of an overpayment caused by an error of the authority making the payment, 15 per cent. of the overpayment; and

(b) in the case of an overpayment caused by official error within the meaning of article 11(3), 97 per cent. of so much of the overpayment as has not been recovered by the authority; and

(c) in the case of any other overpayment, 30 per cent. of the overpayment.

(3) In paragraph (1) “certificated case” has the meaning assigned to that expression by regulation 2(1) of the Housing Benefits Regulations as previously in force.

Section 1

Subject to paragraphs 3, 4, 5 and 6, the additional sum which may be paid to an authority under section 30(3) of the Act (referred to in this Schedule as “the additional sum”) shall be calculated in accordance with the following formula–

Where–

A is the amount available as subsidy in respect of the costs of administering housing benefit being–

in the case of the new town corporations in England, Wales or Scotland, the Development Board for Rural Wales, or the Scottish Homes, £1,842,000; or

in the case of authorities other than those specified in sub-paragraph (a) of this paragraph–

in England, £109,800,000;

in Wales, £4,950,000; or

in Scotland, £12,000,000;

B is the estimate of administration costs for the two years immediately preceding the year beginning 1st April 1988 submitted by that authority before 11th December 1987;

C is the total of such estimates submitted by all authorities in the category specified in sub-paragraph (a), (b)(i), (b)(ii) or (b)(iii), as the case may be, of the definition of A;

D is the figure for that authority’s workload, calculated in accordance with paragraph 2;

E is the total of the figures for the workload of all authorities in the category specified in sub-paragraph (a), (b)(i), (b)(ii) or (b)(iii), as the case may be, of the definition of A.

Section 2

The figure for an authority’s workload shall be the aggregate of the amounts obtained by applying the relevant formula to each of the categories of rebates and allowances applicable to that authority listed in column (1) of Table 2 below, that formula being–

(a) in the case of an authority specified in column (1) of Table 1 below, the product of F × G × H;

(b) in the case of any other authority, the product of F × G.

Where–

F is–

in the case of an authority which submitted before 17th November 1988 details of the numbers of persons in each of the categories listed in column 1 of Table 2 below who were in receipt of rebates or allowances both on 31st May 1988 and 31st August 1988–

the average number of such persons in each of the categories; plus

in the category of case specified in paragraph (b)(i) of column (1) of Table 2 (persons on income support, other tenants rent allowance cases) the number of boarders in an authority’s area estimated before 17th November 1988 by the Secretary of State, or in the case of an authority within the Greater London area, the number submitted before that date by that authority, to be in receipt of income support on a date in June 1988 multiplied by 5/4;

in the case of an authority listed in column (1) of Schedule 6 the figures for rebates and allowances specified for each of the categories listed in columns (2) and (3) of Schedule 6.

G is the figure specified in relation to that category in whichever of columns (2) to (6) of that Table is appropriate to that authority;

H is the cost adjustment figure specified in column (2) of Table 1 below.

For the purposes of “F”–

“the authorities within the Greater London area” are the authorities of Barking, Barnet, Bexley, Brent, Bromley, Camden, City of London, Croydon, Ealing, Enfield, Greenwich, Hackney, Hammersmith, Haringey, Harrow, Havering, Hillingdon, Hounslow, Islington, Kensington and Chelsea, Kingston upon Thames, Lambeth, Lewisham, Merton, Newham, Redbridge, Richmond upon Thames, Southwark, Sutton, Tower Hamlets, Waltham Forest, Wandsworth and Westminster.

TABLE 2

(a) Tenants of an authority–

(i) rent rebate

(ii) rate rebate

(iii) community charge rebate

(b) Other tenants–

(i) rent allowance

(ii) rate rebate

(iii) community charge rebate

(c) Persons other than tenants–

(i) rate rebate

(ii) community charge rebate

(a) Tenants of an authority–

(i) rent rebate

(ii) rate rebate

(iii) community charge rebate

(b) Other tenants–

(i) rent allowance

(ii) rate rebate

(iii) community charge rebate

(c) Persons other than tenants–

(i) rate rebate

(ii) community charge rebate

Section 3

(1) If the additional sum, as calculated under paragraph 1–

(a) exceeds–

(i) in England and Wales, 120 per cent. of an amount calculated in accordance with sub-paragraph (2) of this paragraph, the additional sum for that authority for that year shall be 120 per cent. of such amount; or

(ii) in Scotland, 130 per cent. of an amount calculated in accordance with sub-paragraph (2) of this paragraph, the additional sum for that authority for that year shall be 130 per cent. of such amount;

(b) is less–

(i) in England and Wales, than 80 per cent. of an amount calculated in accordance with sub-paragraph (2) of this paragraph, the additional sum for that authority for that year shall be 80 per cent. of such amount; or

(ii) in Scotland, than 90 per cent. of an amount calculated in accordance with sub-paragraph (2) of this paragraph, the additional sum for that authority for that year shall be 90 per cent. of such amount.

(2) The amount referred to in paragraph (1) shall be the additional sum payable to the authority calculated in accordance with Schedule 1 to the Housing Benefit (Subsidy) Order 1989 .

Section 4

Where the total of additional sums calculated under paragraphs 1 and 3 is less or more than–

(a) for new town corporations in England, Wales or Scotland, the Development Board for Rural Wales or the Scottish Homes, £1,842,000; or

(b) for authorities other than those specified in sub-paragraph (a) of this paragraph–

(i) in England, £109,800,000;

(ii) in Wales, £4,950,000; or

(iii) in Scotland, £12,000,000,

the amount of the additional sum for an authority to which paragraph 3 does not apply shall be calculated, subject to paragraph 5, in accordance with the following formula–

Where–

J is the additional sum calculated under paragraph 1 in respect of the authority;

K is the total of the additional sums calculated under paragraph 1 in respect of all authorities to which paragraph 3 does not apply in the category specified in sub-paragraph (a), (b)(i), (b)(ii) or (b)(iii) of this paragraph respectively;

L is the balance of the total amount specified in paragraph 1 available as subsidy in respect of the cost of administering housing benefit for authorities in the category specified in sub-paragraph (a), (b)(i), (b)(ii) or (b)(iii) of this paragraph respectively, after deduction of the additional sums for such authorities to which paragraph 3 applies.

Section 5

(1) If the additional sum for an authority for the relevant year as calculated under paragraph 4–

(a) exceeds–

(i) in England and Wales, 120 per cent. of an amount calculated under paragraph 3(2), the additional sum for that authority for that year shall be 120 per cent. of such amount; or

(ii) in Scotland, 130 per cent. of an amount calculated under paragraph 3(2), the additional sum for that authority for that year shall be 130 per cent. of such amount;

(b) is less–

(i) in England and Wales, than 80 per cent. of an amount calculated under paragraph 3(2), the additional sum for that authority for that year shall be 80 per cent. of such amount; or

(ii) in Scotland, than 90 per cent. of an amount calculated under paragraph 3(2), the additional sum for that authority for that year shall be 90 per cent. of such amount.

Section 6

Until the aggregate of the additional sums calculated under paragraphs 3, 4 and 5 equals the amount available as subsidy in respect of the cost of administering housing benefit for authorities in the category specified in sub-paragraph (a), (b)(i), (b)(ii), or (b)(iii) respectively of paragraph 4 the formula set out in paragraph 4 and paragraph 5 shall, subject to the modifications specified below, continue to apply to calculate the additional sum for those authorities to which neither paragraph 3 nor paragraph 5 has applied; and for that purpose–

(a) J shall apply as if the additional sum were the sum calculated under paragraph 4, or, if by virtue of this paragraph there has been more than one calculation, last calculated under that paragraph in respect of the authority;

(b) K shall apply as if the total of the additional sums were the total of the additional sums calculated under paragraph 4, or, if by virtue of this paragraph there has been more than one calculation last calculated under that paragraph in respect of all authorities to which paragraph 5 did not apply in that calculation; and

(c) L shall apply as if the amount to be deducted to determine the balance of the total amount available were the additional sums for authorities to which, in the calculation under paragraphs 4 and 5, or, if there has been more than one calculation under those paragraphs, the last such calculation paragraph 5 applied.

Section 1 Calculation of deductions

The deductions–

(a) in a case to which paragraph (2), (4), (5) or (6) of article 7 applies, shall be calculated in accordance with paragraph 2 or 3 as appropriate;

(b) in a case to which paragraph (3) of that article applies, shall be calculated in accordance with paragraph 6.

Section 2 Reasonable market rent

Where the rent officer determines a reasonable market rent and the amount of eligible rent exceeds the reasonable market rent less ineligible amounts, the amount to be deducted from allowances granted in respect of the period beginning with the relevant date and ending with the termination date shall be–

(a) an amount equal to 100% of the excess or the amount of the allowances granted, whichever is the lower, or

(b) where paragraph 5 applies, the difference between–

(i) the amount determined in accordance with sub-paragraph (a) of this paragraph; and

(ii) the amount obtained by dividing that amount by 97 and multiplying the quotient by 50.

Section 3 Determination as to size

Subject to paragraph 4, where the rent officer makes a determination under paragraph 2 of Schedule 1 of the Rent Officers Order that the dwelling exceeds the size criteria for its occupiers and he determines a reasonable market rent and a comparable rent for suitably sized accommodation, the amount to be deducted from allowances granted in respect of the period beginning on the relevant date and ending on the termination date shall be–

(a) for the period of 13 weeks beginning on the relevant date or, if shorter, for the period beginning on that date and ending on the termination date, if the amount of the eligible rent exceeds the reasonable market rent less ineligible amounts–

(i) an amount equal to 100% of the excess or the amount of the allowances granted in respect of that period, whichever is the lower or

(ii) where paragraph 5 applies, the difference between the amount determined in accordance with head of this sub-paragraph and the amount obtained by dividing that amount by 97 and multiplying the quotient by 50;

(b) for the period after the end of that period, if the amount of the eligible rent exceeds the comparable rent for suitably sized accommodation less ineligible amounts,

(i) an amount equal to 100% of the excess or the amount of the allowances granted in respect of that period, whichever is the lower or

(ii) where paragraph 5 applies, the difference between the amount determined in accordance with head of this sub-paragraph and the amount obtained by dividing that amount by 97 and multiplying the quotient by 50.

Section 4 Modification where determination is made as to size

(1) Where the rent officer has made a determination under paragraph 2 of Schedule 1 to the Rent Officers Order before paragraph (1) of article 2 of the Amendment Order came into force and it is probable that had that amendment been in force at the time of the determination–

(a) the rent officer would not have made the determination that the dwelling exceeded the size criteria, the amount to be deducted from allowances provided in respect of the period beginning on the relevant date shall be, if the amount of the eligible rent exceeds the reasonable market rent less ineligible amounts,

(i) the amount equal to 100% of the excess or the amount of the allowances granted, whichever is the lower or

(ii) where paragraph 5 applies, the difference between the amount determined in accordance with head of this sub-paragraph and the amount obtained by dividing that amount by 97 and by multiplying the quotient by 50; or

(b) the rent officer would have determined a higher comparable rent for suitably sized accommodation, the comparable rent shall be increased by an amount determined in accordance with the formula–

unless it is impracticable for an authority to calculate its subsidy otherwise than by reference to the determination actually made by the rent officer.

(2) In sub-paragraph (1)(b) of this paragraph–

“A” means the number equal to the number of rooms in excess of the size criteria which the rent officer has determined as suitable;

“B” means the number equal to the number of rooms in excess of the size criteria which it is probable the rent officer would have determined as suitable had the amendment been in force;

“C” means the reasonable market rent; and

“D” means, but for this paragraph, the comparable rent for suitably sized accommodation; and

“the Amendment Order” means the Rent Officers (Additional Functions) (Amendment) Order 1989 or, as the case may be, the Rent Officers (Additional Functions) (Scotland) Amendment Order 1989.

Section 5 Modification where determination is made as to size

This paragraph applies where an authority has not considered it appropriate to treat a person’s eligible rent as reduced under regulation 11 or 12 of the Regulations (restrictions on unreasonable rents or on rent increases).

Section 6 Failure to refer to rent officer

Where article 7(3) applies, the amount to be deducted from allowances granted from 1st April 1989 shall be 100 per cent. of such allowances.

Section 7 Relevant date

For the purposes of this Schedule–

(a) in a case where a claim for a rent allowance is made on or after 1st April 1989, the relevant date is the date on which entitlement to benefit commences;

(b) in a case where on 1st April 1989 there is, current on that date, a benefit period relating to a claim for an allowance in relation to the dwelling, the relevant date is–

(i) the date first occurring after 16th April 1989 on which any change of circumstances take effect; or

(ii) the date on which the benefit period ends, or if it ends before 17 April 1989, the date on which the next benefit period ends,

whichever is the earlier;

(c) in a case which would be an excluded tenancy under paragraph 1 of Schedule 2 to the Rent Officers Order but for the change to which sub-paragraph (a) or (b) of, or the rent increase to which sub-paragraph (c) of, that paragraph refers, the relevant date is–

(i) if the change or, as the case may be, rent increase affects a person’s entitlement to the allowance, the date on which his entitlement is affected;

(ii) if his entitlement is not affected, the date on which the change or, as the case may be, rent increase occurs;

(d) in a case where a rent officer makes both an interim determination and a further determination in accordance with paragraph 4 of Schedule 1 to the Rent Officers Order, the relevant date is–

(i) if the reasonable market rent determined under the further determination is higher than or equal to the amount determined under the interim determination, the date determined under the foregoing sub-paragraphs of this paragraph as appropriate;

(ii) if the reasonable market rent determined under the further determination is lower than the amount determined under the interim determination, the date on which the further determination is made by the rent officer or, if the authority has already paid benefit for the week in which that date falls, the following Monday, whichever the authority determines;

(e) in a case where the rent officer has made a re-determination under paragraph 1 of Schedule 4 to the Rent Officers Order, the relevant date is–

(i) if the reasonable market rent or, as the case may be, comparable rent for suitably sized accommodation determined under the re-determination is higher than or equal to the amount determined under the original determination, the date determined under the foregoing sub-paragraphs of this paragraph as appropriate;

(ii) if the reasonable market rent or, as the case may be, comparable rent for suitably sized accommodation determined under the re-determination is lower than the amount determined under the original determination, the date on which the re-determination is made by the rent officer or, if the authority has already paid benefit for the week in which that date falls, the following Monday, whichever the authority determines;

(f) in a case where–

(i) the dwelling is in a hostel; and

(ii) by virtue of regulation 12A(2) of the Regulations an application for a determination in respect of that dwelling is not required; and

(iii) there is current, on 9th October 1989, a benefit period relating to a claim for an allowance in relation to the dwelling,

the relevant date is the date (after that date) on which any change of circumstances takes effect or the date on which the benefit period subsequent to the benefit period current on 9th October 1989, begins, whichever is the earlier;

(g) in a case where–

(i) immediately before 10th April 1989 one of the occupiers of the dwelling was in receipt of income support under the Act and his applicable amount fell to be calculated in accordance with regulation 20 or regulation 71(1)(b) of, or paragraph 17 of Schedule 7 to, the Income Support (General) Regulations 1987; and

(ii) there is, on 10th April 1989, a benefit period relating to a claim for an allowance in relation to the dwelling,

the relevant date is the date (after 16th April 1989) on which any change of circumstances takes effect or the date on which the benefit period subsequent to the benefit period on 10th April 1989, begins, whichever is the earlier;

(h) in a case where–

(i) the dwelling is an assured tenancy by virtue of the Housing Act 1988 granted after 15th January 1989 but before 1st April 1989; and

(ii) there is, on 1st April 1989, a benefit period relating to a claim for an allowance in relation to the dwelling,

the relevant date is the date (after 16th April 1989) on which a relevant change of circumstances takes effect or the date on which the benefit period subsequent to the benefit period on 10th April 1989, begins, whichever is the earlier.

Section 8 Termination date

For the purposes of this Schedule “termination date” means–

(a) 31st March 1990; or

(b) the date on which a new determination by the rent officer in relation to the same dwelling is made; or

(c) the end of the tenancy in relation to which the determination is made,

whichever is earlier.

Section 9 Apportionment

For the purposes of this Schedule where more than one person is liable to make payments in respect of a dwelling the “comparable rent for suitably sized accommodation” or “reasonable market rent” shall be apportioned on the same basis as such payments are apportioned under regulation 10(5) of the Regulations.

Section 10 Interpretation

In this Schedule, unless the context otherwise requires–

“comparable rent for suitably sized accommodation” means the rent determined by a rent officer under paragraph 2(2) of Schedule 1 to the Rent Officers Order;

“ineligible amounts” means–

any amount which the rent officer determines under paragraph 3 of Schedule 1 to the Rent Officers Order is attributable to the provision of services ineligible to be met by housing benefit, except to the extent that it relates to fuel charges, plus the amount in respect of such charges ineligible to be met under Part II of Schedule 1 to the Regulations;

for a period beginning on or after 5th September 1989, in England and Wales, and 6th September 1989, in Scotland, any amount in respect of amounts ineligible to be met by housing benefit under paragraph 1A of Schedule 1 to the Regulations;

where the dwelling is a hostel within the meaning of regulation 12A of the Regulations (requirement to refer to rent officers), for the period beginning on or after 9th October 1989, any amount ineligible to be met by housing benefit under paragraph 1 of Schedule 1 to the Regulations, other than under sub-paragraphs (d) to (f) of that paragraph,

“reasonable market rent” means the rent determined by a rent officer under paragraph 1 of Schedule 1 to the Rent Officers Order;

and other expressions have the same meanings as in the Rent Officers Order.