Terms & Conditions

[Martin Giles]

Continuing the theme of other posts I have been passed a case where assessors are looking at what they see as a contrived tenancy but I am not sure which is the best approach as the whole thing seems dodgy. Brief history is that claimant had a house in Cornwall and after partner died found it difficult to meet housing costs, thus in 2001 the property was trasferred to his son. It would appear the son paid off the outstanding mortgage which at the time was £30300 and then had the house. In 2002 a year later the claimant wanted to move nearer to his son. As a result the son sold the property (for £99000) and bought another one in our area for his father to live in which he has done since 20/06/02 and the father has been in receipt of CTB only since that date, declared no rental liability.
Has now submitted claim for HB stating that his son now has financial problems and cannot afford to let him continue to live rent free and needs a return on the property. Has provided tenancy agreement and the claimant is adamant he is only claiming what he is entitled to.

Not sure best palce to start, any thoughts gratefully received

[petedavies]

You should start at the beginning – was there any form of an agreement between father and son before rent was charged? If so, what was its nature and is it evidenced in writing?

Assuming you do not find anything compelling like the son agreeing to provide the claimant with a home for life in consideration of getting the property at a knock-down price in financial terms you need to move on to the motivation for the current arrangement.

You really need to look at how the son got into difficulties in the first place (assuming he is), the severity of them and whether they are likley to be short or long term. Ask for appropriate documentation in respect of everything.

You have no power to ask for information from a 3rd party or to require a claimant to provide it and (IMHO) you should make this clear when making the request. YOu should also explain fully why you are requesting it. Given the relationship I would expect it to be provided.

If it is you should be in a position to reach a conclusion.

If not then you really have to make a value judgement based on the information available.

Also remember that even if the son is not in financial difficulties this is not proof positive – he may have just made a decision to get rent although it is strong evidence.

Also ask what will happen should the son’s financial situation improve again.

Finally (and somewhat cynically) it is easier to go back on a decision that there is no entitlement than one that there is. The prospect of attending a hearing may well prompt the production of compelling evidence as has happened to me recently.

[Anonymous]

Continuing the theme from another thread, could somebody tell me where in the regs I can find a reference to a ‘contrived tenancy’?

[size=9:0a9caf0c8d]Damn these bees in me bonnet, they’re driving me nuts[/size:0a9caf0c8d]

[Mikeb2]

Is this any help?

😕

from here: [url]www.rightsnet.org.uk/pdfs/SSLPA_CPAG_9_March_05.doc[/url]

The facts in Beltekian –v- Westminster City Council and Secretary of State for Work and Pensions [2004] EWCA Civ 1784, 8th December 2004, unreported, (CA) related to a refusal of housing benefit in February 2000 under regulation 7(1) of the Housing Benefit (General) Regulations 1987 (the ‘contrived tenancy’ rules). This decision was then upheld on review and on further review, on 21st September 2001, by a Housing Benefit Review Board. Mr Beltekian then sought to challenge this Review Board’s decision in a number of ways, which ultimately led to him appealing to the Court of Appeal

Contrived tenancy rules – inter-relationship of tests in regulation 7(1)

The claimant in CH/1586/2004 had transferred his ownership of his home, which had also been used by him as a Post Office, to his son when the Post Office business failed and he was therefore no longer able to meet his mortgage payments on the property. Seemingly the local authority had decided that the tenancy agreement fell under regulation 7(1)(h) and therefore the claimant was not entitled to housing benefit. This was the only matter that was argued before the appeal tribunal.

The appeal tribunal allowed the appeal on the basis that the exception to regulation7(1)(h) applied, namely that he could not continue to occupy the property without relinquishing ownership.

Allowing the local authority’s appeal, Commissioner Levenson ruled that in deciding whether the claimant was under a ‘practical compulsion’ (see CH/3853/2001) to sell the property consideration needs to be given both to the reasonableness of the sale and surrounding matters which could have acted to remove the need to relinquish ownership (e.g. finding a new or alternative employment or sub-letting part of the property).

Further, where a local authority or an appeal tribunal has decided that none of the provisions in 7(1)(a) to 7(1)(k) applies the authority or tribunal is under a duty to consider 7(1)(l). This duty arises because of the structure of regulation 7(1) and because “the very fact that regulation 7(1) was raised at all put 7(1)(l) into issue”.

Comment: Arguably the Commissioner’s conclusion on this second point is wrong There is nothing in the language of regulation 7(1) which compels the decision maker to consider 7(1)(l) in every case where none of the sub-paragraphs which proceed it apply. If the opening words in 7(1)(l) “in a case to which the preceding paragraphs do not apply” were said to create the duty, then a local authority would have to show that it had considered and rejected sub-paragraphs (a) to (k) before it could rely on regulation 7(1)(l).

[Martin Giles]

Many Thanks Peter and Melvin

[Author]

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