caselaw – commerciality – irregular payments

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 4 posts - 1 through 4 (of 4 total)
  • Author
    Posts
  • #45003
    lindsey.aylott
    Participant

    Claimant has been claiming £70.00 hb a week – and originally quoted her rent as £100.00 a week.  Her  L/l who lives in same prop and has been subletting to our claimant makes a claim himself stating the claimant pays as and when she can afford to pay rent- about £20- £30 a week.  I have a tribunal hearing and have to leave here in 40 mins so if anyone can post caselaw on here to support irregular payments being made to L/l as non commerical I would be grateful.

    Thank you

    #126897
    d-stainsby
    Participant

    I think you are approaching this in the wrong way; there is no case law as such on the lines you seem to be going along. Mr Commissioner Jacobs outlined the right approach at paragraph 20 of R(H)1/03

    “I have deliberately referred to the facts of the cases in the most general terms. It is relevant for tribunals to consider them in order to gain a feel for the sorts of arrangements that are and are not “on a commercial basis”. However, what the tribunal must not do is reason by analogy from the facts of reported cases. None of the cases actually decides whether or not an arrangement was on a commercial basis. At most they decide that the decision-maker was entitled to come to the decision that it did or that it did not approach the issue correctly. More importantly, the facts of each case must be considered as a whole. A slight difference in the facts can affect considerably the basis of an arrangement. The proper approach for an appeal tribunal is: (a) to investigate and determine the facts material to the issue; and then (b) determine whether as a matter of the proper use of language the arrangement was not on a commercial basis; applying in doing so (c) the principles established by the authorities. “

    #126898
    nick dearnley
    Participant

    You might try CH/1066/2002 for the full HB not being paid to the LL; CH1076/2002 for the fact that LLs of HB tenants often accept less than the full rent – but you can contrast a small reduction with the facts of your case which is a big reduction.

    I had a hearing go in my favour for a similar situation. All of the clmts records showed irregular payments which did not add up to the contractual rent, and there were no LL records submitted to show what payments were made. The was no assessment of arrears. Clmt said she paid in cash to her mother as and when she could, and attempted to point out various bank withdrawals that she said were for rent; none of them were the rent amount in a single transaction and when added up each month did not meet the rent amount.

    In this case we paid HB initially and then ended the award, creating an overpayment, when it came to light that clmt was not paying even the HB amount over to the LL in full, let alone the contractual rent amount – so it sounds similar to your case.

    I referred to CH/3776/2001(aka R(H)1/02), CH/1076/2002, CH/0296/2004 and CH/2959/2006.

    It doesn’t help now but you should really put the caselaw refs in the appeal response…

    #126905
    lindsey.aylott
    Participant

    Thank you both for your help. In normal circumstances i would include the caselaw on the response papers but on this occasion i didn’t. The hearing was postponed so I will probably send the case law to the tribunal service to be attached to the current response papers.

Viewing 4 posts - 1 through 4 (of 4 total)
  • You must be logged in to reply to this topic.