Terms & Conditions

[Graham Keys]

I’m sure I’m missing something obvious but I left my brain in neutral today.

Two joint tenants share a property and are each getting HB based on a 50% share.

The first tenant vacates the property to take up a new tenancy without giving notice to the landlord and asks for unavoidable liability to be paid for 4 weeks at her previous address.

The second tenant argues that she should be apportioned 100% of the rent from the time the first tenant left as once the others 4 weeks runs out she will not be able to manage just on a 50% share.

How would you apportion this and from which date?

[markp]

Treat remaining joint tenant as responsible for full liability under Reg 8 in order to keep roof over her head?

Landlord can, after all, take action against either or both parties.

Do I know what I'm doing? The jury's out on that........................

[Anonymous]

At first glance, 2 x 50% is the same as 1 x 100% so it doesn’t really make any difference whether you go for four weeks’ notice for Claimant 1 or instant reapportionment in Claimant 2’s favour.

Then it occurred to me that the size criteria come into play. If you are saying there is a four week unavoidable notice period for Claimant 1, then Reg 7(6) deems her to be occupying both dwellings. I think that deeming fiction could just about be extended to embrace the linked concept of occupiers for RO size purposes (Commissioner Jacobs analysed the issue of deeming provisions at great length in CH/4546/2002 and I think the “legislative purpose” of Reg 7(6)(d) is to leave things as they were on the old claim for the four-week overlap – I think that would cover the RO size criteria).

Whereas if you cut claimant 1 loose immediately and reapportion to claimant 2, there might be a size restriction straight away.

Of course, if claimant 2 is still not over-accommodated, then I don’t think it makes any difference either way.

Now you’ll tell me that one of them gets max HB and the other doesn’t, which would complicate things still further …

[Graham Keys]

Ta. They are both under 25 so will be hit by the SRR once one of them leaves. At the moment the rent is 300.00 per month, so they are both getting 150.00 each.

The SRR is 195.00 per month.

My initial answer was to pay an extra 4 weeks at 50% each, then make the remaining tenant 100% responsible after that and apply the SRR. That maximises the amount of HB for both them.

However, the processor was arguing to apportion the rent to 100% straight away, apply the SRR and not allow the overlap. At which point I promptly started to doubt myself…

[markp]

Graham,

Just glad it’s yours!

Do I know what I'm doing? The jury's out on that........................

[Kevin D]

Ok, I’ll have a go.

Liability is the first issue (irrespective of 2 homes, or anything else for that matter).

The vacating tenant clearly thinks that s/he has 50% liability – otherwise overlapping HB would not have been claimed.

If that is correct, I don’t see how the remaining tenant can be treated as 100% liable.

As to whether the vacating tenant is entitled to HB for the overlapping period is neither here nor there. Liability isn’t dependant on what HB is payable. HB is dependant on liability [[b:cfb7a516ff]CH/2123/2006 – para 12[/b:cfb7a516ff]].

Once liability is sorted, only then can 2-homes be considered. In the original post, it is stated that the vacating tenant didn’t give any notice. Unless there is more, it seems hard to argue that she meets the test of reasonably avoiding dual liability. In which case, two homes isn’t payable but, if liability has been considered to be good enough for 2 homes consideration, it is still 50% for the whole period (i.e. you can’t have it both ways).

If, on the other hand, you decide that the remaining tenant is in fact liable for 100% from the outset, (thereby ignoring the statement of the vacating tenant) the vacating clmt is, er, stuffed in any case. And, the SRR applies straight away.

Good luck…..

[Anonymous]

My contribution above was based on two assumptions that were perhaps a bit hasty.

The first assumption was that the two claimants were and still are joint tenants, so that they are both jointly liable, except that one of them doesn’t live there anymore

The second assumption was that benefit is paid direct to the landlord, so that claimant 1 is not looking to walk away with 4 weeks’ HB in her pocket.

If those assumptions are correct, I think Kevin’s first test is satisfied: both claimants are liable for rent.

Next, as Kevin says, if claimant 1 is to be entitled to the four extra weeks, she needs to show that she could not reasonablky have avoided her continuing rent liability. In the case of a joint tenancy I think it is a bit more complicated for one person to be relieved of their obligations than if a sole tenant simply gives notice or surrenders the tenancy. It may be that she could not reasonably have sorted that out ahead of her move, although clearly the onus was on her to make some effort and so she might have a struggle bringing herself under Reg 7(6)(d), or (7) as the case may be.

If claimant 1 is still liable but no longer trated as occupying, I think it would be reasonable to reapportion the rent 100% : 0% in claimant 2’s favour immediately. You can do this with joint tenants, as Commissioner Jacobs did in CH/3376/2002. However, as she has an SRR that will only help her to the tune of £45 a month, not the full £150 she needs.

I think if you are feeling inclined to help, you can say there was no feasible way the legal niceties for a release from the joint tenancy could have been attended to in less than four weeks, so the continuing liability was unavoidable, both claimants get 50% for another four weeks and the SRR is delayed that bit longer.

[markp]

Assuming that you decide to treat as tenant 2 having full liability for rent from any given date (whether or not you paid tenant 1 the 4 weeks unavoidable notice or not), what about considering a DHP?

Typed at 5 pm brain packing up and going home!

Do I know what I'm doing? The jury's out on that........................

[Author]

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