Defective decision made after claimant dies, Revise? Executor?

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    Claimant owned the property and in 1992 she gifted it to her 2 sons, she remained living in the property rent free until April 2022 when she starts to get charged rent and claims HB.

    We sent tenancy questionnaires to her and her landlord (son). In her replies she advised she would not pay rent if HB was not paid. When asked if she would pay a shortfall if HB did not cover full amounts, she replied that she cannot say. When asked if she would be allowed to stay in property if HB was not paid, she replied that she was not sure, due to cost of living increase, landlord is no longer able to subsidise. She has not been given the how to rent booklet. Another factor is that the rent was set at £196.15 pw, but the LHA rate is only £92.00 therefore the shortfall would be £104.15 pw – over half the rent charge

    In the Son’s replies (landlord) he has advised that he would take legal advise if HB was not paid, when asked what he would do if HB was paid but did not meet the full rent or how he would collect arrears, he advised that he would discuss with tenant – there was no mention of warnings or eviction. when asked if he would allow tenant to remain in property if HB was not paid, he responded that he would discuss with tenant. He asked why he is now charging rent, he responded that the situation was no longer tenable in current financial climate.

    On 19/07/22 we requested more info from claimant and her son. What we hadn’t been aware of when the info was requested, was that claimant had passed away over a week before.

    In the absence of any response from claimant or sons, claim was made defective, and the letter was addressed to the Exor’s of Mrs Claimant.

    The son has contacted us and asked what info was missing and has proceeded to advise that up until April 2022 they were able to carry the can on all the expenses of running the house and the repairs, new roof, rewire, replacement of heating system. That the state of the economy impacted them both and covid put a complete halt on all income for 2 years as they could not claim furlough or any government payment.

    We don’t believe that the tenancy was valid (reg(8)) as we don’t believe the sons would have ever have collected rent nor do we believe that they would have evicted the claimant if hb was not paid, even if reg 8 was satisfied, we wouldn’t award under reg 9 – family arrangement / taking advantage of HB system.

    What we are not sure of is whether we should now make a new decision under regs 8 / 9 as the missing info has been supplied within a month of our defective decision and reasonable for delay of landlord due to death of mother. OR should we just leave the defective decision as it is.

    Whatever we do, would the decision notices being issued to the ‘Exors of Mrs Claimant’ mean that the executors are a person affected by the decision and therefore able to appeal it?

    There would be a few more questions I would have asked the landlord, and if we are to revise and refuse under reg 8 / 9, should I request the further details or just refuse based on the details we have?


    Yes in the circumstances I suggest you should make a new decision and that would include the right of appeal. I do not believe this was a defective claim and I see no power to reject a claim on lack of information in this way. Indeed the caselaw has clarified that for many years. A Tribunal would probably allow the son to at least attend a hearing as a witness….although I have no idea what the decision would be as this sounds like a classic family style arrangement and you are right to argue in the alternative on regs 8 and 9. There is no reason why a FTT cannot consider this matter although it cannot then go to Upper Tribunal whatever the decision (because of death). Any further questions could be clarified at a Tribunal hearing. It sounds like you are dangerously close to asking too much on too many occasions and this denying the (now deceased) claimant her right of appeal. Your decision is that she is not entitled on reg 8 and reg 9 and you must now (to quote Judge Jacobs) now put up or shut up…either pay or refuse and allow an independent tribunal to have a look.

    I would suggest you look again at your defective claim procedure. Always a controversial area of course but now I think the process is clear.

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