Terms & Conditions

[jonesjl]

Hi all,

I have a case where the landlord (claimant’s father) is not registered with Rent Smart Wales and has now said that he will not register with them and instead will put the house up for sale. All the usual contrived checks were carried out when claim was originally set up but claim started before RSW came into effect.

We have been paying HB for a number of years up to the point this was discovered.

Claimant states that his father however will be continuing to charge him rent until the property is sold.

So there is a Tenancy Agreement in place and rent payments being made.

Does that fact that the father isn’t registered with RSW imply that this isn’t being run on a Commercial basis? I can’t see anything in the regs to say that just because a landlord isn’t registered with RSW it doesn’t automatically follow that HB cannot be paid.

Does anyone have any thoughts / similar cases?

Thanks

[peterdelamothe]

As always in this type of case would a landlord letting on a commercial basis refuse to follow the law? In my view, no. The penalty is often severe; it is a mandatory legal requirement.

No letting agency would agree to rent out a property until and unless the law had been complied with. No different to the landlord or agent refusing to follow the Tenant Fees Act. Or perhaps changing the locks and evicting the tenant without notice. A criminal offence.

You are right that much of this legislation is Housing rather than HB. Do I think it applies to HB and reg 9? Yes I do and I dont know any private landlord that would take such risks (apart from the very dodgy group that we can read about in the housing press).

Not everyone agrees with me. I maintain that a commercial agreement can only exist if the housing law is complied with….so the EPC is valid, the law on gas and electricity inspections is followed. Many of these are criminal offences not just civil and if the landlord does not bother with say a yearly gas inspection to save £100 then they face a £30,000 fine or up to 14 years in prison if the tenant is killed by carbon monoxide leaking from a faulty boiler. Which they are every year.

In my experience it is always the “family arrangement” like your case that the issues arise. They want it both ways. It is not really a landlord / tenant arrangement…..just Dad or son etc. I dont really want to charge rent or spend any money on following the law on renting or bother registering as required by the law in Wales. None of their business. When I want to chuck the tenant out I will without bothering about tenant rights. All I want is the HB money from the Council.

Does reg 9 apply? Absolutely yes. The Renters Reform Act being discussed today in Parliament applies to all tenants. There is no exclusion for family who are being charged rent and paid by benefits. But thats just my view and reg 9 deals with that clearly….but again just in my view.

So I would review the case and based on the new info stop HB and happily take the matter to a Tribunal.

[jonesjl]

Thanks Peter, that’s helpful and makes perfect sense.

[pbirks]

just to add that you cannot decide retrospectively that it wasnt commercial – you made a decision it was – you are noe reviewing that , and there are new criteria which help you make that decision ( gas, electricity certs, being registered RSW etc) so the claim may fail the commerciality bar movig forward, but you wont be able to create an overpayment.

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