SDP and House Sharing rules. Who is a                              NON Dependant?

Severe disability premium

JSA(IB) and Income Support

Non-dependants
 

23208 Non-dependants are people who are aged 18 or over who

1. normally reside with the claimant or

2. the claimant normally resides with (see DMG 23209).
 

That is, share the accommodation (see DMG 23212). Certain people who normally reside with the claimant are not regarded as non-dependants (see DMG 23220).

1 JSA Regs, reg 2(1); IS (Gen) Regs, reg 3(1); R(IS) 12/96

Meaning of normally resides

Normally resides means usually resides and should be tested over a period to which usually can relate. A person who is temporarily absent from their normal home, continues to normally reside where they usually live and with the people they usually live with.

Example 1

Jack normally lives in his mother’s house and is not entitled to SDP because his mother is a non-dependant. He goes into respite care for one week every other month. While he is in respite care Jack still normally resides in his mother’s house.

He does not qualify for SDP.

Example 2

Mary normally lives alone in her own flat. She is entitled to SDP. Her brother Steven comes to stay with her for a week at a time every three months. He is not a nondependent because he does not normally live with Mary. She keeps her entitlement to SDP whilst Steven is staying with her.
 

 When considering where a person normally resides the DM should have regard to

1. the total amount of time spent in a place

2. how often time is spent in a place

3. how permanent the stay is thought to be

4. the person’s intentions

5. individual circumstances

6. what degree the accommodation is shared

7. the services provided

8. whether the person owns or rents any other accommodation

9. whether the person has any liabilities for services/utilities/tv licence.

Example

Agnes who is aged 59 claims IS. She has been awarded DLA and no one gets CA for caring for her. Agnes owns her own home but for the past two years has slept every night at her son’s house. She keeps her clothes and some of her things at her son’s house. She goes home for the day two or three days a week, to clean up and do the garden. But she always returns to her son’s to sleep. Agnes is responsible for the bills for her home and she and her son still regard Agnes’s house as her home. Agnes’s house has never been put up for sale.

The DM decides that Agnes normally lives at her son’s house because

1. she sleeps at her son’s house every night

2. her clothes and some of her things are kept at her son’s

3. she only goes back to her own house occasionally and in daylight hours

4. she spends the majority of her time at her son’s house.

Agnes is not entitled to SDP.

Students

23211 In a case where a student lives at a university address during term time and lives at their parents’ home for some weekends and during the holidays, the DM should have regard to the considerations at DMG 23210 before deciding which address is where they normally reside. Whichever address is chosen will remain the student’s normal residence even when they spend time at the other home.
 

Example

A student still retains a bedroom, furniture and some clothing at their parents’ home, they still get some mail there, are registered with the local dentist and are actually resident for 18 full weeks and most weekends. On this evidence the DM decides that the student normally resides at their parents’ home and are only temporarily absent from it whilst at university.

Alternatively the DM may decide that because the student has a tenancy agreement for a university address, they have some furniture and clothes there, they live there for 32 weeks of the year and are liable for gas, electricity and a tv licence that they normally reside at the university address and are only temporarily absent from it whilst back living with their parents.
 

Sharing the accommodation

People should not be regarded as sharing the accommodation if;

1. the only shared area is a

1.1 bathroom or

1.2 lavatory or

1.3 communal area (see DMG 23213) or

2. they are separately liable to make payments (see DMG 23214) to the landlord

for that accommodation.

1 JSA Regs, reg 2(6); IS (Gen) Regs, reg 3(4); R(IS) 12/96

Note: A person should still be regarded as sharing the kitchen even if they do not enter or use it where items for the persons use are stored there or their meals are prepared there. A kitchen is not shared if a person needs to pass through it to gain access to their self contained flat.

 A communal area is an area of common access (not a room) including;

1. halls

2. stairways and

3. rooms of common access in sheltered accommodation1.

1 JSA Regs, reg 2(7); IS (Gen) Regs, reg 3(5)

Meaning of “liable to make payments”

23214 “Liable to make payments” refers to legal liability. When considering the question of liability, the DM must consider whether

1. the claimant has the contractual capacity to enter into an enforceable contract and

2. there was an intention to create legal relations.

23215 If the conditions in DMG 23214 are met, the DM must then establish that;

1. there is an obligation to make payments derived from a recognized source of law (for example contract law) and 2. the obligation to make the payments is for the occupation of the premises and not, for example, for food or clothing and 3. the power to bring the licence or lease to an end is referable to a breach of the condition to make the payment under the contractual licence or lease and not to some other matter.

1 R(IS) 11/98

23216 Whether a person has separate liability to a landlord (see DMG 23212 2.) should be determined by reference to the arrangements within the group. But DMs should note that the liability has to be to the same landlord. Reference to some other liability of the person to a third party is not relevant.~
 

Example

Tom claims JSA. He gets DLA and no one gets CA for caring for him. He lives in a privately rented house which he shares with three other people. They all have their own bedroom but share the kitchen and bathroom. Each are liable to pay the landlord rent for their room.

The DM decides that Tom does not normally reside with the other residents of the house. They are all separately liable to make payments to the landlord for their accommodation. Tom has no non-dependants and is awarded SDP.

23217 Where a claimant lives in the parent’s home, the DM should establish;

1. the terms on which the claimant lives there and 2. what payments are made and 3. the purpose of those payments.

The DM must then consider whether there is a contractual liability.

Contractual capacity

23218 In England and Wales, only an infant, or a person of unsound mind, may not have the capacity to incur legal liability. DMs should accept that a claimant has sufficient capacity unless there is very strong evidence to the contrary.

Carer stays overnight

23219 A carer may stay overnight with the person they are looking after. In such a case the DM should consider whether the carer normally resides with that person and should find out

1. whether the carer has a separate address 2. if the carer has a separate address, whether they use it and if so, how often 3. what address the carer uses as a postal address 4. what address the carer is registered at for CT purposes.
 

People who are not non-dependants

23220 People who normally reside with the claimant but who are not non-dependants are;

1. any person aged under 18
2. any member of the claimant’s family (see DMG Chapter 22)
3. any child or young person who is not treated as a member of the claimant’s household (see DMG Chapter 22)
4. a person and their partner who
4.1 lives in, to care for the claimant or partner and
4.2 is engaged by a
4.2.a charitable or
4.2.b voluntary organization which makes a charge to the claimant or partner for the person’s services. A voluntary organization is a non-profit making organization that is not a public authority or LA2
5. any person who is not a close relative (see DMG 23222) of the claimant or partner who
5.1 is liable to make payments on a commercial basis to the claimant or partner for occupation of the dwelling or
5.2 the claimant or partner is liable to make payments to on a commercial basis for the occupation of the dwelling or
5.3 is separately liable to make payments to the landlord for occupation of the dwelling
6. any person who is not a close relative (see DMG 23222) and who is a member of the household of a person to whom 5. applies
7. a person or their partner who is not a close relative, except where
8. applies, who jointly occupies the claimant’s dwelling and who is
7.1 a co-owner of the dwelling with the claimant or partner or
7.2 jointly liable with the claimant or partner to make payments to the same landlord for the occupation of the dwelling
8. a close relative who satisfies 7. and the
8.1 claimant or partners co-ownership or joint liability arose
8.1.a before 11.4.88 or 8.1.b if later, on or before the date on which the claimant or partner first occupied the dwelling or
8.2 the saving provision applies 3 (see Appendix 2 to this Chapter)
9. a person in receipt of
9.1 “AA” or
9.2 the middle or highest rate of the care component of DLA4 or
9.3 the daily living component of PIP at the standard or enhanced rate or
9.4 AFIP
10. a person, including a close relative who
10.1 joins the claimant’s household for the first time to care for the claimant or partner and
10.2 immediately before joining either the claimant or partner satisfied the conditions for SDP 5
11. a person who is blind or treated as blind (see DMG 23072)6.

 

Note 1: When considering 7.1 it does not matter if there are other co-owners.

Note 2: For the purpose of 9. receipt of the allowance will stop where the person has been a hospital inpatient for a prescribed period, at this point the person will be considered a non dependant.

Note 3: The provision in 10. only applies for the first twelve weeks from the date that person first joined the claimant’s household.

1 JSA Regs, reg 2 & Sch 1, para 15(1)(b), 15(2)(c) & 20I(1)(c); IS (Gen) Regs, reg 3; Sch 2, para 13(2)(a)(ii) &

13(2)(b)(iii); 2 JSA Regs, reg 1(3); IS (Gen) Regs, reg 2(1); 3 JSA Regs, Sch 1, para 15(8); IS (Gen)

Amdt No 6 Regs; 4 JSA Regs, Sch 1, para 15(4)(a) and 20I(3)(a); IS (Gen) Regs, Sch 2, para 13(3)(a);

5 JSA Regs, Sch 1, para 15(4)(b) and 20I(3)(b); IS (Gen) Regs, Sch 2, para 13(3)(c);

6 JSA Regs, Sch 1, para 15(4)(c) and 20I(3)(c); IS (Gen) Regs, Sch 2, para 13(3)(d);

7 JSA Regs, Sch 1, para 15(6) & 20I(5); IS (Gen) Regs, Sch 2, para 13(4)
 

Commercial basis

23221 For a liability to be on a commercial basis1 (see DMG 23220 5.)

1. there should be a legal liability to make the payment and

2. the payment should be broadly in line with what a lodger might pay for similar accommodation and facilities. Payments for gas, electricity, laundry, food and the provision of care are not payments for facilities. Payments for such items do not confer liability and should be ignored in any comparison.

1 R(IS) 11/98
 

Meaning of close relative

23222 A close relative is1

1. a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, stepparent, step-son, step-daughter, brother, sister, or 2. if any of the preceding persons is one member of a couple, the other member of that couple and 3. similar relationships arising through civil partnerships 2.
 

1 JSA Regs, reg 1(3); IS (Gen) Regs, reg 2(1); 2 CP Act 04, s 246

23223 “Brother” and “sister” includes half-brother and half-sister. A child who is adopted becomes a child of the adoptive parents and the brother or sister of any other child of those parents. The adopted child stops being the child of, or the brother or sister of any children of, the natural parents. Whether an adopted person is a close relative of another person depends on the legal relationship not the blood relationship 1.




©A1 ESA/DLA/PIP Benefits Help and Support (UK only)