Terms & Conditions

[Anonymous]

Right…

There are loads of threads on HBinfo relating to the issue of ‘Benefit on 2 homes’ and specifically the ‘unavoidability’ clause.

In our Authority this is starting to become a problem as a certain ‘social’ landlord seems to be exploiting the focus of this part of the reg.

Basically, in almost all cases, there is a rental overlap whenever a claimant moves between this particular landlord’s properties.

In fact they’ve even gone so far as to create a special form for their tenants to complete quoting the relevant parts of the legislation!

Is there any was that we could look at the start of the new tenancies as contrived to specifically obtain Housing Benefit (simply to cover their void problem)?

Thoughts?

[Anonymous]

You could look at how genuine the unavoidablility is, especially as it is the same landlord, and they then know (and set) the start and end dates of all of the tennacys involoved…

Thats where I’d start

[Anonymous]

Trouble is, the reg doesn’t concern itself with the landlord’s actions only if the situation is unavoidable for the tenant… if the landlord says that you have to move or you’ll lose the tenancy then it is unavoidable for the tenant….

In light of this, can we look at the start of the tenancy as contrived to obtain Benefit?

[emmadring]

i think you’re right about the reg referring to unavoidability on the part of the tenant, not the landlord.

I’m not sure whether using the ‘contrived tenancy’ route for four weeks would be possible. Surely if a tenancy is deemed to have been contrived then the exact same tenancy cannot then be deemed to no longer be contrived after four weeks, when the terms and intentions of the parties have not changed? You could I suppose deem the whole term of the tenancy to be contrived, which would exclude all those claimants from benefits for the whole term of the agreement . Maybe this would achieve the desired result?! But it seems very unfair on the claimants, who are at risk of losing their homes if you do not pay at all.

No idea what you could do in this situation, but there must be something!

[Kevin D]

Fortunately, the wording of HBR 9(1)(l) doesn’t refer to [b:776e5ecc9c]tenancy[/b:776e5ecc9c]. It refers to [b:776e5ecc9c]liability[/b:776e5ecc9c].

It’s an interesting line of argument. It *may* well be possible to suggest that the liability has been created to take advantage of the HB scheme. You’d be on much stronger ground if you could show the same situation didn’t apply to non-HB tenants.

Regards

[Anonymous]

To me the regular overlap, and subsequent application for Benefit to cover the ‘liability’ for the dual period, clearly suggests a level of contrivance; as Kevin points out, I’d be on stronger ground if I could show that the overlap was not an issue with non HB tenants…though lord knows how I could ascertain this…

Thanks for the replies so far…

Any further comments from anyone?

[Jacqui McKeating]

Just a thought – not sure if it will help – what happens to the council tax liability on these properties? The tenants should still be liable until their tenancy ends and if the property is furnished there would be something to pay. Also could your Council Tax records give you any clues about how non HB tenants are treated?

[emmadring]

Although I used the word ‘tenancy’ instead of liability (oops), I still stand by my argument that unless the nature of the liability alters after the four weeks of overlap it cannot suddenly turn into an ‘uncontrived’ liability. If a person arranges a liability which the LA decides is set up to take advantage of the scheme, how can that decision be altered subsequently? Even if the scheme is no longer being abused after the four week overlap, it was still the purpose of the LL to [b:4540849e49]create[/b:4540849e49] the liability when he did to take advantage of the scheme, and that is what the contrivance provision refers to – the creation of the liability.

It all depends on whether liabilities can drift in and out of being contrived, as they can in respect of commerciality. I would suggest they cannot, since contrivance requires the LA to examine the liability from the outset and not in the light of more recent events.

[Anonymous]

Mmmm, I see what you’re saying, but as the reg concerns itself with liability and not periods of time, is it possible for the liability to move from contrived to bona fide due to a change of circumstance?

Isn’t it possible to deem the start of the liability as contrived due to the fact that it may have been set up specifically to cover voids and to allow a dual payment for a set period of time?

After the tenant moves in, the liability is then deemed valid.

(by the way, love Chichester.. I went to college there! Sorry, off topic)

[Kevin D]

Emma – funny you should mention the “outset” argument.

Although there are at least 2 CDs where it was considered that the relevant point in time is at the outset, I do have an argument that, in specific circumstances, this is challengable. Unfortunately, I can’t share the argument(s) at this time – it may prejudice a case I have knowledge of.

Regards

[andyrichards]

There is of course the Baragrove case, where it was decided that certain aspects of a liability could be contrived (in this case only letting to people who were “vulnerable” under old Reg 11). So maybe the precise timing of a liability could be looked at as contrived? One for the lawyers I guess.

[petedavies]

I think that once you have decided a liability is contrived you cannot subsequently supersede the decision. You would, in effect, have a change in circs which effected something in the past.

As far as the overlap of liabilities is concerned ask to see the house files for the relevant periods – they should hold details of repairs, decorations etc – If the LL has access for all that sort of thing they essentially have possession. They have mitigated any loss regarding not receiving any rent and thus cannot charge. The whole idea is to reduce the void time and if they can get repairs etc done whilst the property is still let – they get a double whammy. Also ask to see receipts for keys etc. By accepting the keys(possibly) and possession (almost certainly) I think the LL is accepting an early surrender of the tenancy.

If they refuse then just assume that they had possession, let them appeal and explain the refusal to produce records.

[emmadring]

My point with the argument about the outset is that when you have to make the new decision – that the liability is no longer contrived – the reg which determines whether you can treat the claimant as liable still requires you to decide whether the liability was [b:c6b142d5e9]created[/b:c6b142d5e9] to take advantage of the scheme. It still would be deemed the case four weeks later.

I definitely agree that the LL has set this up to take advantage of the scheme – the only problem in my eyes is how to use this to bar entitlement for a defined period rather than for the whole extent of the liability.

Sorry if I keep repeating myself here!

Shame Kevin D can’t give us the benefit of his knowledge here, as the wording seems to clearly direct you to look at the circumstances arising when the liability was created. I would like to hear the argument in favour of deciding whether there is contrivance on the circumstances as they stand four weeks later, without considering the creation of the liability. Maybe at a later point in time all will be revealed…

[jamcon]

If you have evidence that the HA is deliberately creating overlapping periods in order to cover void periods, you could always go down the fit and proper landlord route.

[Anonymous]

[quote:3a0e7dbb47=”jamcon”]If you have evidence that the HA is deliberately creating overlapping periods in order to cover void periods, you could always go down the fit and proper landlord route.[/quote:3a0e7dbb47]

Oooohhh, hadn’t thought of that one, good point!
😆

[Author]

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