Terms & Conditions

[Michelle Hunter]

Hi hoping for some assistance please.

We have a pensioner HB claim (both in their 80’s)whereby the property was purchased via RTB and the nephew loaned applicants the money to be able to purchase, the RTB went through in 2016. There was a loan charge placed on the property via the land registry with a provision that the loan was to be repaid either on sale or with 6 months notice.
5 years have lapsed since the RTB and because the applicants have not repaid the ‘loan’ the property was transferred to the nephew, by way of the loan being re-paid, June 2022. Again they have provided the land registry docs which evidence this. The value of the property is more than double the value of the loan.
An HB application has been submitted in May 2023 (with a backdating request to January 2023). The TA started in January 2023 with a rent of £550 per month and this is up-to-date as at June 2023. Age Concern advised them to apply for HB due to hardship. Applicants have stated that they would not have sold the property on the open market as it has been their home for 50 years and wouldn’t want to move out.

We want to refuse but struggling with what reg would take priority:
Deprivation
Contrivance
Commerciality
Non compulsion to sell

Which reg would you use, or can we refuse on multiple regs? I’ve looked on hbinfo and cant fine any info where this has been discussed prior.

TIA

[pbirks]

if you have more than one reasonm(grounds) for refusing – your decision needs to cover each and every one
They cant appeal your decision unless thy know your reasons for refusing.

Re commerciality – have you asked for the gas/electric certificates/energy certificates and the info for tenants pck they are legally required to have sight of befor a tenancy can commence? they are a legal requirement and likelt that if they have lived there 50+ years., there would have been some electrical updates required to get it certified as ok to let.

[peterdelamothe]

The Council also seeks to rely in the alternative on regulation 8 which
deals with liability to pay rent. In R(H) 3/03 (CH/1618/2002), the then
Commissioner advises at paragraph 9 that:

“The problems that arose in this case would have been avoided if the
local authority had based its decision in the alternative on regulation 8
and regulation 9. The facts often raise issues under both regulations. I
have seen decisions from some local authorities that are made on
alternative bases. That is an acceptable form of decision and ensures
that all the relevant issues are raised by an appeal. The local authority
in this case may wish to consider that approach in the future”.

This was Judge Jacobs. You start at your strongest point and if a Tribunal rejects your position, you move on “in the alternative” to the next. This can apply in all sorts of issues. You may refuse on grounds of capital. But the Judge decides some of the capital can be disregarded. So then you might move on to a different issue. Or it might be an overpayment. You might argue the OP is not an official error. A Judge may disagree. Then you might argue the OP is still recoverable because the claimant must have realised they were being overpaid etc.

This is more about presenting an appeal to a Tribunal rather than a specific regulation. What you want to avoid is the same case returning to a Tribunal when it could have been dealt with at the same hearing. Costly and time consuming and usually unfair to the claimant. On the other hand some exempt appeal cases can go on for may days!

[Peter Barker]

“This is more about presenting an appeal to a Tribunal rather than a specific regulation. What you want to avoid is the same case returning to a Tribunal when it could have been dealt with at the same hearing. Costly and time consuming and usually unfair to the claimant.”

Not only that, if you put all your eggs in (say) the commerciality basket and the Tribunal decides that the tenancy is on a commercial basis and the claimant is therefore entitled to HB, you cannot start again with a different reason for refusing HB. There is no power to revise a Tribunal decision: your only recourse would be to try an audacious UT appeal on the grounds that no Tribunal in its right mind presented with those facts would have missed the obvious relevance of (say) renting from an ex partner or trustee of a trust … to which the UT’s likely answer would be “if it’s so obvious why didn’t you rely on it in the original Tribunal?”

So yes, line up the alternatives and address each one in the decision.

[Andy Thurman]

I have nothing to add on the ‘mechanisms’ of the decision/tribunal process (already set out very well for you) but I would also caution on the need to substantiate each alternative as fully as possible.

The concern over this case is understandable but what are your reasons for the suggested arguments…

Deprivation? – Seems it was a lack of any such capital in the first place that is at the heart of this! There is, of course, the difference between the market value and the ‘sale price’ but, for this to be a deprivation decision you would need to explore the deals fully AND link it to the attempt to get HB. Maybe the loan agreement is worded such that the transfer of ownership is the outcome of non-compliance? I have no idea but do know I would need to find that out as otherwise any decision would be speculative. If they did not know about HB (and HB rules), how were their actions in June 2022 linked to the claim for HB prompted a year later by Age Concern? It could be a very clever set up but you need more than a knowledge that the property is worth more than the loan.
Contrivance? Much as above – could/should the nephew have acted more reasonably? (maybe they are just heartless/maybe they had reached the end of their tether due to Aunty/Uncle reneging time and again on the loan repayments.) What is more to the point is demonstrating a collusion between them to facilitate HB being awarded. If he is the rightful owner, why should he let his relatives live there rent free?
Commerciality? Six months rent already paid weakens this one. The advice to ask for safety certificates may prove the nephew is a bad/naive landlord but does that actually show it to be a non-commercial liability?
Non-compulsion to sell – seems they did have no choice?

This does not necessarily mean you should pay – there may be further details available and reasonable questions that can be asked.

[Author]

Posts