Claim for rent charged to a deceased former tenant

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  • #22147
    ahclarkson
    Participant

    Hello,

    I fear I may be over-thinking this one, but my head’s about to burst and I need some advice!

    The tenant of one of our Council properties passed away on 03/09/10, leaving her adult son & daughter in the property. Due to various delays, the deceased tenant’s notice to quit did not expire until 07/11/10. The son & daughter remained resident, assuming that they would succeed the tenancy. However, it turned out that they had no right of succession.

    The son and daughter want a joint tenancy for the property. At the moment, our social housing team are still exploring the legality of this. In the meantime, the son [u:b140b37954]only[/u:b140b37954] is being charged for use and occupation from 08/11/10 onwards. I have been advised that the deceased tenant’s estate will be used to clear the arrears that accrued between 03/09/10 and 07/11/10.

    The daughter has submitted a claim for Housing and Council Tax Benefit to commence following her mother’s death (the son’s capital precludes him from claiming). While I’m satisfied that she cannot claim from 08/11/10 (due to the son being made the solely liable person for the use and occupation from this date), I’m trying to figure out whether she can claim for all or part of the rent charged to the deceased mother between 03/09/10 and 07/11/10.

    I suppose my only real sticking point is whether the rent charged to the deceased mother following her death is covered by HB8(1)(c):

    [quote:b140b37954]8. Circumstances in which a person is to be treated as liable to make payments in respect of a dwelling

    (1) Subject to regulation 9 (circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling), the following persons shall be treated as if they were liable to make payments in respect of a dwelling—

    (c) a person who has to make the payments if he is to continue to live in the home because the person liable to make them is not doing so and either—
    (i) he was formerly a partner of the person who is so liable; or
    (ii) he is some other person whom it is reasonable to treat as liable to make the payments;[/quote:b140b37954]

    I’m struggling to justify treating the deceased tenant’s rent as payments that the son and daughter are (or were) required to make in order to remain in the property. The legality of their occupancy seems to be moot. As it falls within the purview of the deceased mother’s tenancy, the rent will have to be paid regardless of who now lives there or whether a new tenancy commences following the expiration of the notice to quit. Surely, then, said rent has no actual bearing on the son and daughter’s continued occupation?

    Furthermore, if we decide that the daughter [i:b140b37954]can[/i:b140b37954] claim for this period, can we simply take it as read that she and the son have a 50:50 “liability” to pay these arrears? Certainly, the son and daughter [i:b140b37954]want[/i:b140b37954] to eventually be joint tenants, but they are not and have not been made so by our social housing team.

    Any assistance would be greatly appreciated.

    (edit: changed some wording)

    #6839
    ahclarkson
    Participant

    Does anyone have any thoughts about this one?

    #6840
    peterdelamothe
    Keymaster

    The liable person is the estate of the deceased. No-one else is liable. You also said that the estate will cover the arrears so I cannot see how the reg you quote will assist since the liable person IS paying – “the estate of the late “.

    Nor do I understand why the daughter has made a claim. The debt is the mothers; if the estate cannot afford it then it dies with her. The daughter or son are not liable and cannot be held responsible. By making a claim, the daughter might be a) trying to establish a right to occupy via HB (it wont work but she may not know that) b) attempting to increase the amount of the estate that she will benefit from.

    So I would refuse the claim; not liable.

    #6841
    Kevin D
    Participant

    [quote:8dacf0ebd4=”peterdelamothe”]…By making a claim, the daughter might be a) trying to establish a right to occupy via HB (it wont work but she may not know that) b) attempting to increase the amount of the estate that she will benefit from.

    So I would refuse the claim; not liable.[/quote:8dacf0ebd4]

    In support of the argument that payment of HB doesn’t create a tenancy, see Star Lettings Ltd (resp) v Opara (appel) [1998] EWCA Civ 1749.
    http://www.bailii.org/ew/cases/EWCA/Civ/1998/1749.html

    #103112
    ahclarkson
    Participant

    Loath as I am to dredge up this issue again, but it’s been a cause of much debate in our offices, and I’d appreciate some more help if possible.

    We tend to frame a lot of our decisions on guidance featured in the Shelter guide by Zebedee, Ward and Lister, and we’ve found the following paragraph which seems to go against the advice given in this topic:

    [quote]
    The objective of [HB Regulation 8] is that HB is there to keep the roof over the head of someone who could perhaps arrange to become the tenant but who has not (yet) done so… the rule can also be used when the liable person is a firm or other body rather than a human being — [b]including, presumably, the executors of the estate of a tenant who has died.[/b]
    [/quote]

    The emphasis in bold is mine, and highlights the point of contention.

    I’m not nearly well enough versed to know where the Shelter guide lies in the hierarchy of reliability with regard to decision-making, so I apologise if this sounds a little presumptuous, but can anyone shed any light as to whether the intention behind Regulation 8 was indeed to cater for this type of scenario? If so, it would appear that we are okay to pay for the period in question.

    #103114
    Kevin D
    Participant

    This perfectly illustrates the difficulty of trying to second guess the “intention” behind legislation. The intention only matters to the extent of ASSISTING (nothing more, nothing less) with interpretation. Intention cannot be a substitute for what the legislation ACTUALLY says. Social Security law is littered with cases where the DWP (and LAs) have argued the “policy intention” of a piece of legislation was “X” but Cmmrs / UTJs / Courts have made the point the law must be followed as stated; not what it was intended to be if it says something different.

    One of the requirements within HBR 8(1)(c) is that is “…must be reasonable…” to treat someone as liable. Based on the info so far, the LL (doesn’t matter whether it’s provate / LA/ HA) seems pretty sure it doesn’t want the “successor” (informal usage) to be the tenant. On that basis, I’m struggling to see how it “reasonable” to treat her as liable in these specific circumstances. Does the commentary in the CPAG help to focus your thoughts at all?

    Ultimately, it’s a judgement call by your LA – good luck with that :-).

    #103115
    ahclarkson
    Participant

    Many thanks, Kevin.

    #103125
    John Boxall
    Participant

    What baffles me though is that you have made the son the only liable party from 08/11. Unless there is some reason you have not explained as to why he and he alone should be liable for the use and occupation charge surely the liability should be joint and several with his sister.

    Also there is a question about what were the delays in the notice to quit? Should the occupants be liable from an earlier date?

    Annual income twenty pounds, annual expenditure nineteen nineteen and six, result happiness. Annual income twenty pounds, annual expenditure twenty pounds ought and six, result misery. The blossom is blighted, the leaf is withered, the god of day goes down upon the dreary scene, and—and in short you are for ever floored.

    Wilkins Micawber, Ch12 David Copperfield

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