8 weeks or more arrears

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  • #34030
    simondoyle
    Participant

    Do any LAs, on receipt of a representation from a landlord saying their tenant is more than 8 weeks in arrears, suspend benefit immediately giving the claimant one month to provide proof they are not in arrears or the reason why they are withholding rent OR do you make enquiries but continue to pay the tenant?

    I am just trying to work out if Reg 11 of the DMA regs allows suspension immediately. It talks about ‘issues arising’ about the conditions of entitlement, but of course the issue is about payment not benefit so can suspension apply immediately in such a case.

    Apologies if this has been covered somewhere before on hbinfo but could quite pin it down in a search of the archives!

    Many thanks in advance

    #94982
    seanosul
    Participant

    I would be very careful about doing that, we pay four weeks in arrears,. suspending the claim therefore puts an innocent party into eight weeks of arrears (excluding the deposit).

    I would suggest that it is for the landlord to prove the debt not the tenant to prove innocence from the debt.

    Remember a tenant may have legitimately withhheld payment of rent in lieu of repairs, this is perfectly allowable in Housing Law.

    #48769
    Anonymous
    Guest

    I have queried both issues until Im blue in the face. Our policy is that we cannot suspend legally unless there is doubt as to entitlement so are being very strict and having to make detailed enquiries with both tenant and ll upon receipt of a request. We are going to look straight away at the improbable to pay aspect and consider paying the ll under 96 3 b where customer does nothave just reason for non payment and there is a suggestion of vulnerability. If customer suggests they will pay turn doen the request but then if they miss next payment ask ll to notify us requesting a recon and provide evidnec of additional arrears. By this time they will be 8 wks in arrears any way

    With the witholding of rent as there is a tenant dispute this has been queried with our legal section. It is suggested that where tenant has not took legal action ie environmental order of ccj against ll then ll want benefit to be paid to ll. We have said no as the argu,ent may be around a leaky tap. LL have therefore requested that the LA keeps hold of the payments until this can be resolved. Our legal section are looking into this now but could be an option. Believe me its driving me potty!!!

    #94983
    cbuck
    Participant

    I don’t see a huge problem with suspending these cases in order to make a correct decision. Suspension can prove a highly motivating force to get the claimant to contact us, and as they are not paying their rent with the HB anyway it is hardly causing them hardship!

    A determination under reg 95 imposes a duty, not a discretion, on the LA to pay the landlord. This determination forms part of the entitlement decison notified when a claim is decided. It continues as an element of the award in payment.

    If new information is received that shows that the determination of who to pay is/ may be now wrong we have grounds for considering a supercession of the award decision under DAR 7(2). Until that decision is made we are able to suspend payment under 11(2)(a)(ii). We would also at that point ask for the full story from both sides. At the end of the month we would then make the decision on reg 95 based on the information we had been able to gather.

    I may be dreaming it but I thought there was recent caslaw on a similar point (maybe one of the ‘can’t pay the same benefit twice’ decisions?)Following this discussion I am not so sure that the suspension route would be appropriate when exercising our discretion under reg 96 – not that (I think) we do that anyway.

    #94984
    Anonymous
    Guest

    You can’t suspend the claim in these circumstances. DMA only allows you to suspend pending a decision on [i:25c432f40b]entitlement[/i:25c432f40b], plus if you have decided not to pay the clt you have, in effect, made a decision. There is also a CD (can’t remember which one now) where clt witheld rent to force LL to do repairs and Commissioner held that it is was not in clt’s best interests to continue paying him (the clt) as the LL would then evict him – highly persuasive in my view.

    There is no legal power to hold on to HB until the dispute is settled. That disappeared in 2001. Also look at new Regulation 96(3B) in vulnerability cases – we pay the LL for 8 weeks while we are considering the issues.

    #94985
    cbuck
    Participant

    Hi Chris

    DAR 11(2)(a)(i) allows suspension for a doubt over entitlement.
    11(2)(a)(ii) where there is an issue regarding revision/ supercession. No requirement for an entitlement doubt.

    Witholding payment of benefit by suspending is not a decision (hence no right of appeal) just an administrative convenience to allow us time to make a decision.

    I have no doubt that there is no doubt(!) over ongong entitlement (rate etc) but there is a possible supercession due if we are considering imposing a change of payee under HB 95.

    At least, that’s my opinion.

    #94986
    Anonymous
    Guest

    Sorry, don’t agree. DAR11(2)(a) (ii) still talks about revising/superseding an AWARD (not a PAYMENT).

    I repeat, where is your legal power to withhold? (Sorry to be difficult but I have the scars, believe me)

    #94987
    seanosul
    Participant

    [quote:38e207ba65=”cbuck”]
    Witholding payment of benefit by suspending is not a decision (hence no right of appeal) just an administrative convenience to allow us time to make a decision.
    [/quote:38e207ba65]

    Withholding as a power disappeared in 2001 – that is why there is no appeal as we do not have the power to withhold.

    On what evidence are you going to suspend the claim? If it is just a letter, by the time evidence is obtained from the landlord (and the claimant would have a right of response) the tenant will be in 8 weeks of arrears. I would not make a change until the landlord has at least issued a notice of seeking possession to the claimant for 8 weeks of arrears, in that way there is VERY REAL evidence that arrears exist.

    #94988
    Nicky
    Participant
    #94989
    cbuck
    Participant

    An award has multiple determinations embodied within it. I consider that one of those determinations is whether the ‘must pay’ conditions of reg 95 are satisfied or not. In the absence of anything to suggest that there are arrears we make the award inferring that payment to claimant is OK. That aspect of the award is clearly appealable which suggests that it is as fundamental a part of the award as the applicable amount calc.

    If new info comes to light later to say that reg 95 may need to be looked at again surely that is grounds for revising or superceding the entire award. I don’t see how you can effect a change of payee without revision or supercession of the award?

    Sean

    [quote:1032d06059]Withholding as a power disappeared in 2001 [/quote:1032d06059]

    Sorry, this is before my time. I wasn’t aware of any previous legal meaning to ‘witholding’. I used in the everyday english sense that describes what we do with a reg 11 suspension (as opposed to the big stick nature of a reg 13 suspension).

    As far as 8 weeks arrears being caused by the holding back (better?) of payments, there is no doubt over the claimants entitlement to those monies so one of the questions to claimant would be – what are you going to do with the money we are holding for you? Most of these cases are resolved very quickly, usually by phone and interview, for the very reason that we do not want to be contributing to a tenancy problem.

    Even before the LHA direct payments bit we have attempted be proactive in this area and assist the reduction of homelessness. So whether or not arrears were at 8 weeks we encourage landlords to contact us before any formal proceedings start so we can work at keeping the tenant in their home, maybe considering a reg 96 – best interest change of payee if appropriate.

    #94990
    cbuck
    Participant

    Nicky

    Thanks very much; I was sure it wasn’t a dream!

    This has been a lovely distraction, feels like the first time in months I have looked at anything other than LHA. Back to the grind now though.

    #94991
    seanosul
    Participant

    [quote:0867b2dd41=”cbuck”]Most of these cases are resolved very quickly, usually by phone and interview, for the very reason that we do not want to be contributing to a tenancy problem.

    Even before the LHA direct payments bit we have attempted be proactive in this area and assist the reduction of homelessness. So whether or not arrears were at 8 weeks we encourage landlords to contact us before any formal proceedings start so we can work at keeping the tenant in their home, maybe considering a reg 96 – best interest change of payee if appropriate.[/quote:0867b2dd41]

    With respect, it is not for you to worry about the prevention of homeless element; there are equally as many Commissioners decisions confirming that how a claimant spends their HB is up to them. HB is the income of the tenant, not the income of the landlord and you should ensure that you have very good grounds to pay that income to their landlord. LHAs were designed to introduce landlord accountability – hence the reason they were going to be introduced in the social sector; your approach totally undermines that.

    #48779
    cbuck
    Participant

    [quote:5a2dbc6621]your approach totally undermines that.[/quote:5a2dbc6621]

    How on earth does encouraging tenants and landlords to work out their tenancy difficulties without resort to the courts undermine the concept of ‘landlord accountability’? From the reams of gumph I have waded through on the aims of LHA I see plenty of reference to promoting claimant responsibility but as you rightly say HB is a claimant entitlement, not landlords.

    Our approach to date has been to open the dialogue between tenants and their landlords in much the same way as the LHA scheme recomends. We already have an incredibly low percentage of dereg PT claims paid direct to landlord and have thus been supporting the concept of claimant responsibility for years. Just by getting involved in these situations we are able to point both tenants and landlords towards the housing advice services provided by the authority and encourage all parties to take a more professional and organised approach to their tenancies.

    With equal respect we all work for LAs that have a duty to the wider social welfare of our residents. If the HB system can help work towards the goal of homeless reduction then so much the better. I really do not see what policy aims are being undermined by putting in the extra work; as long as the right benefit is still getting paid at the right time!

    #94992
    seanosul
    Participant

    Part of the accountability in the green paper was to find a way to ensure tenants are better able to negotiate rents and when housed repairs (hence the restrictions on direct payments and the original intention to pay social landlords in the same way). Housing Departments would have to do something about rent arrears, other than blame benefits.

    The number one aim of direct payments was to tackle the repairs issue

    [quote:536d3a7d71]ensuring that unscrupulous landlords do not profit from Housing Benefit while neglecting their responsibilities – for example, by placing conditions on the receipt of Housing Benefit or limiting payment of Housing Benefit direct to landlords, where this would not unduly restrict the choice of properties available to tenants.[/quote:536d3a7d71]

    #94993
    cbuck
    Participant

    Fairy nuff. Missed that bit!

    Hopefully our case-by-case approach will continue to mean that HB payments cannot be used as a tool by ruthless landlords to penalise tenants.

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