Citation and commencement

1.-(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

2.-(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 9 of Schedule 4 to that Act;

• "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 12A of the 1987 Regulations(2);

• "local authority" means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(3);

• "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;

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

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

• "rent" means any of the periodical payments referred to in regulation 10(1) of the 1987 Regulations(4);

• "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

• "the 1987 Regulations" means the Housing Benefit (General) Regulations 1987(5).

(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

3.-(1) Subject to articles 5 and 6, where a local authority, in accordance with regulations made under section 136(2) or (3) of the Social Security Administration Act 1992(6), 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).

(2) A rent officer for each registration area (within the meaning of section 43 of the Rent (Scotland) Act 1984(7)) on the first working day of each month shall-�

(a)make determinations in accordance with Part IV of Schedule 1 (indicative rent levels) in the registration area;

(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

4. Subject to articles 5 and 6, if the local authority applies to a rent officer for a redetermination, a rent officer shall make the redetermination and give notice in accordance with Schedule 3 and a rent officer whose advice is sought as provided for in that Schedule shall give that advice.

Insufficient information

5. If a rent officer needs further information in order to make a determination under article 3(1) or a redetermination under article 4, he shall serve notice on the local authority requesting that information and article 3(1) or, as the case may be, article 4 shall not apply to the making of that determination or redetermination until he receives the information.

Exceptions

6.-(1) No determination or 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 7(3) of the 1987 Regulations(8), 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 1987 Regulations(9)).

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

Special cases

7.-(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 10(1) of the 1987 Regulations(10).

(3) In a case where the local authority states in the application that the rent includes charges for general counselling or any other support 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(11) (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.

Amendment to 1995 Order

8.-(1) The Rent Officers (Additional Functions) (Scotland) Order 1995(12) 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

9.-(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

Article 3(1)(a)

PART IDETERMINATIONS

Significantly high rents

1.-(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 locality (or as similar as regards tenancy, dwelling and locality 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.

Size and rent

2.-(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 locality 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

3.-(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.

(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 locality 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 locality 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).

Local reference rents

4.-(1) The rent officer shall make a determination of a local rent in accordance with the formula-�

(2) The criteria are-�

(a)that the dwelling under the assured tenancy-�

(i)is in the same locality as the dwelling;

(ii)is in a reasonable state of repair; and

(iii)has 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, accords with the size criteria); and

(b)if the tenant does not have the use under the tenancy of the dwelling of more than one bedroom or room suitable for living in-�

(i)that under the assured tenancy the tenant does not have the use of more than one bedroom or room suitable for living in;

(ii)if the rent under the tenancy includes payments for board and attendance and the rent officer considers that the amount fairly attributable to board and attendance is a substantial part of the rent, that a substantial part of the rent under the assured tenancy is fairly attributable to board and attendance;

(iii)if sub-paragraph (ii) does not apply and the tenant shares a kitchen or toilet with a person other than a member of his household, a non-dependant or a person who pays rent to the tenant, that the assured tenancy provides for the tenant to share a kitchen or toilet; and

(iv)if sub-paragraphs (ii) and (iii) do not apply, that the circumstances described in sub-paragraphs (ii) and (iii) do not apply in relation to the assured tenancy.

(3) When ascertaining H and L under sub-paragraph (1), the rent officer-�

(a)shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy; and

(b)shall exclude the amount of any rent which, in the rent officer's opinion, is fairly attributable to the provision of services which are ineligible to be met by housing benefit.

(4) In sub-paragraph (2)(b)-�

• "bedroom or room suitable for living in" does not include a room which the tenant shares with any person other than-�

  (a)

  a member of his household;

  (b)

  a non-dependant (as defined in this sub-paragraph); or

  (c)

  a person who pays rent to the tenant; and

• "non-dependant" means a non-dependant of the tenant within the meaning of regulation 3 of the 1987 Regulations(13).

(5) In sub-paragraph (3), "services" means services performed or facilities (including the use of furniture) provided for, or rights made available to, the tenant, but not-�

(a)the provision of meals (including the preparation of meals or provision of unprepared food); or

(b)the provision of services to which any service charge for fuel relates.

Single room rents

5.-(1) The rent officer shall determine a single room rent in accordance with the following formula-�

(2) The criteria are-�

(a)that the dwelling under the assured tenancy is in the same locality as the dwelling and is in a reasonable state of repair;

(b)that, under the assured tenancy, the tenant-�

(i)has the exclusive use of one bedroom;

(ii)does not have the use of any other bedroom or room suitable for living in;

(iii)shares the use of a toilet; and

(iv)shares the use of a kitchen and does not have the exclusive use of facilities for cooking food; and

(c)that the rent does not include any payment for board and attendance.

(3) Sub-paragraphs (3) to (5) of paragraph 4 apply when ascertaining H and L under this sub-paragraph as if the reference in those sub-paragraphs to H and L were to H and L under this paragraph.

Services

6.-(1) Where the dwelling is not in a hostel and the rent officer makes a determination under-�

(a)paragraph 1(1) (where no determination is to be made under paragraph 1(2), 2(2) or 3(3));

(b)paragraph 1(2) (where no determination is to be made under paragraph 2(2) or 3(3));

(c)paragraph 2(2) (where no determination is to be made under paragraph 3(3)); or

(d)paragraph 3(3),

he shall also determine whether, in his opinion, any of the rent at the relevant time is fairly attributable to the provision of services which are ineligible to be met by housing benefit and, if so, the amount which in his opinion is so attributable (except where he considers the amount is negligible).

(2) In sub-paragraph (1)-�

• "rent", in relation to a determination under paragraph 1(2), 2(2) or 3(3), means (as the case may be) the rent determined under paragraph 1(2), 2(2) or 3(3) and, in relation to a determination under paragraph 1(1), means the rent payable under the tenancy at the relevant time; and

• "services" has the meaning given in paragraph 4(5).

Article 3(1)(b)

PART IIASSUMPTIONS etc.

Medical, nursing and other care services

7. In a case where the local authority states in the application that the rent includes any of the charges specified in paragraph 1(d), (e) or (f) of Part I of Schedule 1 to the 1987 Regulations(14) (ineligible service charges), the rent officer shall assume that-�

(a)the items to which the charges relate 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.

Housing associations etc.

8.-(1) In a case where the local authority states in the application that the landlord is a housing association or a charity, the rent officer shall assume that the landlord is not such a body.

(2) The rent officer shall not take into account the rent under any tenancy where the landlord is a housing association or where the landlord is a charity and the dwelling is provided by the landlord in the pursuit of its charitable purposes.

(3) In this paragraph-�

• "charity" has the same meaning as in the Charities Act 1993(15), except that it includes a Scottish charity (which has the same meaning as in section 1(7) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(16)); and

• "housing association" has the same meaning as in the Housing Associations Act 1985(17).

Article 3(1)(c)

PART IIINOTIFICATIONS OF PART I DETERMINATIONS

Notifications

9.-(1) Subject to sub-paragraph (2), the rent officer shall give notice to the local authority of determinations made under Part I within the relevant period.

(2) If the rent officer determines a rent under-�

(a)paragraph 4 (local reference rents); or

(b)paragraph 5 (single room rents),

which is equal to or more than the rent payable for the tenancy, the rent officer shall give notice to the local authority of this in place of giving notice of the determination made under paragraph 4 or, as the case may be, paragraph 5 (and sub-paragraph (1) shall apply to such a notice as it applies to determinations).

(3) In this paragraph-�

• "relevant period" means the period of 5 working days (or, where a 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-�

  (a)

  where the rent officer requests further information under article 5, the date on which he received the information; and

  (b)

  in any other case, the date on which he received the application;

  or as soon as practicable after that period; and

• "rent payable for the tenancy" has the same meaning as in paragraph 3(1).

10. Where the rent officer has made a determination under paragraph 3(3) of the highest rent for an assured tenancy and the rent payable under the tenancy includes a payment which is ineligible for housing benefit under paragraph 1(a)(i) or 4 of Schedule 1 to the 1987 Regulations (charges for meals or fuel)(18), the rent officer shall also state in the notice whether the rent determined by him-�

(a)includes an amount which would be ineligible for housing benefit under paragraph 1(a)(i) of Schedule 1 to the 1987 Regulations;

(b)includes an amount which would be ineligible for housing benefit under paragraph 4 of that Schedule; or

(c)includes both these amounts.

Article 3(2)(a)

PART IVINDICATIVE RENT LEVELS

11.-(1) The rent officer shall determine the indicative rent level for each category described in sub-paragraph (3) in accordance with the following formula-�

(2) The criteria are that-�

(a)the dwelling is in the area of the local authority;

(b)the dwelling is in a reasonable state of repair; and

(c)the dwelling and tenancy accord with the category to which the determination relates.

(3) The categories for the purposes of this paragraph are-�

(a)a dwelling where the tenant does not have use of more than one room where a substantial part of the rent under the tenancy is fairly attributable to board and attendance;

(b)a dwelling where the tenant does not have use of more than one room, the tenancy provides for him to share a kitchen or toilet and paragraph (a) does not apply;

(c)a dwelling where the tenant does not have use of more than one room and where paragraphs (a) and (b) do not apply;

(d)a dwelling where the tenant does not have use of more than two rooms and where none of paragraphs (a) to (c) applies;

(e)a dwelling where the tenant does not have use of more than three rooms and where none of paragraphs (a) to (d) applies;

(f)a dwelling where the tenant does not have use of more than four rooms and where none of paragraphs (a) to (e) applies;

(g)a dwelling where the tenant does not have use of more than five rooms and where none of paragraphs (a) to (f) applies; and

(h)a dwelling where the tenant does not have use of more than six rooms and where none of paragraphs (a) to (g) applies.

(4) When ascertaining H and L under sub-paragraph (1), the rent officer-�

(a)shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy; and

(b)shall exclude the amount of any rent which, in the rent officer's opinion, is fairly attributable to the provision of services which are ineligible to be met by housing benefit.

(5) In this paragraph-�

• "room" means a bedroom or room suitable for living in and in paragraphs (a), (b) and (c) of sub-paragraph (3) does not include a room which the tenant shares with any person other than-�

  (a)

  a member of his household;

  (b)

  a non-dependant of the tenant (within the meaning of regulation 3 of the 1987 Regulations); or

  (c)

  a person who pays rent to the tenant;

• "services" has the meaning given by paragraph 4(5).

Article 2

SCHEDULE 2SIZE CRITERIA

1. One bedroom or room suitable for living in shall be allowed for each of the following categories of occupier (and each occupier shall come within only the first category for which he is eligible)-�

(a)a married couple or an unmarried couple (within the meaning of Part VII of the Social Security Contributions and Benefits Act 1992(19));

(b)a person who is not a child;

(c)two children of the same sex;

(d)two children who are less than ten years old;

(e)a child.

2. The number of rooms (excluding any allowed under paragraph 1) suitable for living in allowed are-�

(a)if there are less than four occupiers, one;

(b)if there are more than three and less than seven occupiers, two; and

(c)in any other case, three.

Article 4

SCHEDULE 3REDETERMINATIONS

1. Schedules 1 and 2 shall apply in relation to a redetermination as they apply to a determination, subject to the following-�

(a)references to the relevant time shall be references to the time the original application for the determination is made or, if earlier, the tenancy ends; and

(b)for the definition of relevant period in paragraph 9 of Part III of Schedule 1 there shall be substituted-�

""relevant period" means the period of 20 working days beginning with the date of receipt of the application for a redetermination, or as soon as is reasonably practicable after that period;".

2. The rent officer making the redetermination shall seek and have regard to the advice of one or two other rent officers in relation to the redetermination.

Article 7

SCHEDULE 4SPECIAL CASES

Houseboats

1. Where an application for a determination or a redetermination relates in whole or in part to mooring charges for a houseboat, this Order applies in relation to that application (or, as the case may be, to that part which relates to those charges) with the following modifications-�

(a)references to a tenancy, a tenancy of a dwelling or an assured tenancy are references to an agreement under which those charges are payable (and references to a landlord and a tenant shall be construed accordingly); and

(b)no determination shall be made under paragraph 2 of Part I of Schedule 1 (size criteria) and references to the dwelling exceeding the size criteria shall not apply.

Mobile homes

2. Where an application for a determination or redetermination relates in whole or in part to payments in respect of the site on which a caravan or a mobile home stands, this Order applies in relation to that application (or, as the case may be, that part which relates to those payments) with the following modifications-�

(a)references to a tenancy, a tenancy of a dwelling or an assured tenancy are references to an agreement under which those payments are payable (and references to a landlord and a tenant shall be construed accordingly); and

(b)no determination shall be made under paragraph 2 of Part I of Schedule 1 (size criteria) and references to the dwelling exceeding the size criteria shall not apply.

Rental purchase agreements

3. Where an application for a determination or a redetermination relates to a rental purchase agreement, the agreement is to be treated as if it were a tenancy.

Article 9

SCHEDULE 5REVOCATIONS

Explanatory Note

(This note is not part of the Order)

This Order revokes and re-enacts with modifications the Rent Officers (Additional Functions) (Scotland) Order 1995 ("the 1995 Order") and revokes the Orders which amended it. It confers functions on rent officers in connection with housing benefit and rent allowance subsidy and requires rent officers to make determinations and redeterminations relating to a tenancy of a dwelling.

The main modifications relate to single room rent determinations under paragraph 5 of Part I of Schedule 1, which are required where the housing benefit claimant is a young individual. By an amendment (which is not yet in force) made to the 1995 Order by the Rent Officers (Additional Functions) (Scotland) Amendment Order 1997, such determinations would also have been required for single claimants as defined in that 1997 Order. This Order reverses the prospective amendment so that determinations will continue to be required only for young individuals. This Order also changes a criterion in paragraph 5(2)(b)(iv) of Part I of Schedule 1 which is relevant for determining single room rents and provides, in article 6(2), that single room rent determinations are no longer required for the accommodation specified in that provision (hostels, registered homes, etc.).

The other modifications include a requirement for rent officers to make additional assumptions, when making a determination or redetermination, and give additional information to local authorities in the cases specified in article 7(3) and (4) (general counselling or other support services: supported accommodation).

Article 8 of this Order also amends the 1995 Order by adding a requirement relating to supported accommodation similar to that in article 7(3) and (4).

Article 8 comes into force on 18th August 1997 whilst the rest of the Order comes into force on 3rd September 1997. Neither the amendment in article 8 nor the substantive provisions in the rest of the Order have effect relative to applications for determinations made before the respective commencement dates of those provisions.