contrived and non commercial ? help please

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    Previously submitted on pre-2006 regs but no reply. I hope someone will give their advice. Thanks. I have a claim from a customer aged 19 who has mental health problems. He moved in with his grandparents in Nov 05 after living in care for many years then briefly with his mother but that did not work out. His grandparents took him in an emergency as 16plus and the mental health care unit had no where for him. The claim came in on 10.03.06 together with a licence and a request for backdating to 13.11.05. Here the problem starts –
    ~ the licence was created on the suggestion of 16 plus when they discovered that grandparents were not classed as close relatives.
    ~ no evidence that he was charged any rent from Nov 05 and the licence is only dated from 10.3.06
    ~ 16plus have no knowledge of the grandparent finances but feels they should not suffer financilly because they have the grandson there and have always needed assistance.
    ~ if HB not paid 16 plus feels they would show their compassion about him staying their.
    I think it’s both contrived and non-commercial. To take tribunal should I get this all from the grandparents too? Or do people think I should pay?


    [size=9:b31e1db838]there is no such thing as a contrived tenancy[/size:b31e1db838]


    Regarding the non-commerciality of the tenancy, it might be worth having a look at CH/0663/2003.

    The Commisoner decided the liability was not comemrcial because the arrangement was ‘unique’ (e.g. it would not have been open to any other tenant on the open market), and the rental agreement was just a small part of a family arrangement to benefit the tenant.

    Regarding proving the liability was “contrived”, you need to [b:d2e84c5bdd]prove[/b:d2e84c5bdd] that one of the parties intended to [b:d2e84c5bdd]abuse[/b:d2e84c5bdd] the HB system. This can be very difficult to prove. There are a couple of points I think are relevant:

    -was the ‘dominant purpose’ of the tenancy to obtain HB, and not to secure accomodation for the tenant?
    – the the tenant, landlord, or person(s) advising them have enough knowledge of the HB stystem to allow them to ‘abuse’ it?

    If you give me you e-mail address, I can send you some of my notes on this subject.

    Kevin D

    Just a couple of observations.

    If you are satisfied that there has been no ACTUAL liability for a period, in part, or in whole, the first step in the decision is to decide there is no liability. There is nothing wrong in then deciding that, in the alternative, the agreement is non-commercial, and in the further alternative that liability was created to take advantage etc.

    There is also no reason why a decision couldn’t be made that the issue of actual liability only applies for the retrospective period if you are satisfied a liability now exists.

    Picking up on the word “[b:119be36f9b]proves[/b:119be36f9b]”; the standard of that proof is only to the extent of the balance of probability.

    Also, in determining if the liability was created to take advantage of HB, it is not necessary to find that the clmt was complicit – it can be enough for 3rd parties to be at “blame”.

    There are several CDs on liability / non-comm / contrived cases:

    The trick for reaching the correct decision in such cases is to consider all of the facts and the evidence without being selective. If at the end of that process you conclude, on the balance of probablity, that the circumstances as a whole support a decision to refuse HB, then that is the decision to be made.

    The most common pitfalls LAs make are:

    1) making insufficient enquiries / obtaining insufficient, or inappropriate evidence.

    2) being selective when considering the evidence in terms of both the substance of the evidence and its credibility.

    3) failing to distinguish clearly between the different legal provisions.

    Hope the above helps.


    Thanks Sam and Kevin for your replies


    OK, JB, apologies for the gratuitous pedantry, but…

    Where I am working at the moment (on appeals) the assessors are still in the habit of sending out system-generated notification letters which state ‘You are ineligible to claim benefit. Reason: Ineligible contrived tenancy – regulation 7’ (doesn’t say which set of regs they are referring to). Worse, some of them then send out a free format letter telling people they are ‘ineligible to claim’ because the tenancy is non-commercial (reg 7, if they remember to quote a reg…but never reg 7(1)(a) of the HBGR 1987, as amended), or that the claimant is ‘ineligible to claim benefit’ because their landlord is a close relative…regardless of whether landlord and tenant reside together or not…or they quote Ward & Zebedee paragraph references instead of regulations…or they refuse to pay CTB under reg 7 as well. So I have a bee in my bonnet on reg 7/9 at the moment…


    Andy feel free to air your frustrations 8)

    I’ve seen so many letters that quote the Shac book and page numbers as if they were regs themselves. But if staff are not taught otherwise then who’s fault is it? 🙄 😆


    And if staff keep on doing it after they’ve been told what they [i:52dfa8c9a3]ought[/i:52dfa8c9a3] to be doing, whose fault is it?

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