Terms & Conditions

[graeme]

Is a tribunal judge able to decide whether a tenancy agreement is a sole tenancy or a joint tenancy?

The situation is this… Our Housing Options Team helped a tenant and her live in carer to secure private rented accommodation having done an affordability assessment. However when she came to sign the agreement the landlord asked that they both sign the agreement and they did, albeit with (carer) written after the carer’s name. The HB application also said the carer was a JT. The intention from HO had been that it would be a sole tenancy with the carer as an ND. The shared rate of HB was paid to the HB claimant.

Having now left and both moved into an HA property she is appealing the decision to pay shared rate on advice from her new housing officer. Mistakenly she believed she is exempt from shared rate as she has PIP, however the carer receives CA so there is no SDP. On review we decided they are a common household so paid two room rate, but limited to half of the rent. She’s now insisting het tenancy was a sole tenancy as that’s what Housing Options told her she would have. I’m asking housing options for advice on the TA as it stands, but if this goes to tribunal is it within the judge’s remit to make that decision?

[Peter Barker]

If the other person did not claim HB/UC for the other half of the rent, you would have the option of apportioning the rent other than 50/50 to arrive at as near as possible the same amount they could have claimed between them had they regarded themselves as joint tenants and both claimed (this of course is subject to the other person’s income and capital). You might even decide that a 100:0 apportionment in favour of the claimant would be reasonable

[Andy Thurman]

Seconding that – this sort of thing is more common with families where the daughter/son gets added by the letting agent as soon as they are adults – just a cynical tactic to provide further options for chasing arrears. Given the background provided, I think the 100%/nil split is fine in this case.

[graeme]

The JT/carer went on to claim the UC housing element. They’re very close and in fact the carer writes the claimant’s emails to us from the claimant’s email address. If this is a decision a judge can take I’d want to warn them in advance of the ramifications on the UC claim, but thinking this is difficult in terms of data protection.

[pbirks]

if the carer /joint tenant got the housing element of UC – why does your customer want the full rent? are there arrears because someone didnt pay the rent over, or was it over LHA rates so a restriction?

is the new HA property paid on a split? presumably there shouldnt be any shortfall if both are claiming HB/UC on the HA property?

[graeme]

Our claimant is fixated on the fact that she is entitled to more HB because she was advised this by her new housing adviser. I expect they didn’t give the adviser the full picture though. Between them they don’t seem to recognise the bigger picture and they’re out of our area now and I understand that it’s a sole tenancy.
Our Housing Options has come back to me and said that the document definitely constitutes a joint tenancy, so just wondering whether a judge might be able to make different judgement on that? Or whether they could decide that a different split of the rent was apprpopriate?

[pbirks]

but if the rent has been paid, why would you revise to award more HB? just because she **WANTS** the money doesnt mean it should be paid….

[Peter Barker]

A Tribunal judge can certainly take a view as to whether a document successfully creates a joint tenancy, but of course only for the purpose of the HB decision. I have just had a UT decision on the reverse situation: where the T/A is in one name but the FtT took the view that it was a de facto joint tenancy. The UT has remitted the case to be reheard because the FtT did not give adequate reasons or make adequate findings of fact to support its conclusion about the tenancy – the rehearing Tribunal will have to do that now. But yes, the Tribunal can go behind the written T/A if it thinks there is evidence that it doesn’t reflect the true intentions of the parties.

The decision is UA-2022-001625-HB, not on the UT website yet.

The Judge can also decide on the appropriate percentage split between the joint tenants, if it is a joint tenancy.

[Andy Thurman]

Clearly the claim for UC Housing costs by the carer changes things. If the carer did not consider themselves liable why would they make such a claim. As Peter has said, it is a matter that a tribunal would consider but the evidence in this case does not appear to be in the claimant’s favour.
Issue a full statement of reasons if you have not already done so and if she wants to appeal it that is her right. (If she has already appealed it must, of course, be submitted unless she properly withdraws.)

[graeme]

Thank you very much for all of youir comments, that’s very helpful.

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