contrived tenancy v non-commercial tenancy

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    Jo Gregory

    Mrs W has claimed housing benefit since August 2001. When she applied for housing benefit in 2001 her rent was £380 a month and her landlord/agent was Mrs Z, she also provided her rent book as proof of rent. She declared this information on numerous forms thereafter. HB was paid to the claimant.

    We have now discovered that Mrs Z is not the landlord/agent and the rent books were forged by the claimant. Mrs Z is an aunty that knows nothing about the house or HB claim.

    We have also discovered that the claimants father owns the property. They both have said that Mrs W has paid rent in cash up to Feb 2004 althought there is no proof of this – under the balance of probabilities we have decided that no rent has ever been paid. Mrs W’s father is not chasing her for the rent to help Mrs W clear her debts (although her debts have not reduced!). Mrs W’s father has said she owes £10,500 in rent and he is not going to ask her for the money. Therefore the agreement that they have is on a non-commercial basis.

    We have cancelled her HB, resulting in a HBO of £18,112.53. The problem we have is; Do we base this decision to cancel the HB on the fact the tenancy was contrived, as she forged the rent books and made up the landlord (Reg 9(1)(l) of HB reg 2006)? Or,
    Do we say the agreement that she had with her father is on a non-commerical basis (Reg 9(1)(a) + 9(2) of the HB Regulations 2006)?

    We can’t do both. If we are saying she contrived the tenancy, then she created a rent liability.
    If we say it is on a non-commercial basis then we are saying she does actually have a liability but it is non-commercial.

    Please help????


    Firstly, I wonder if your Fraud officers would be interested in looking at this as a prosecution case, using either the Theft Act or the SSAA?

    As regards your HB decision notice, I would word it along the lines:

    · The Authority considers that there is no legal liability to pay rent, as required by Section 130(1)(a) of the Social Security Contributions and Benefits Act 1992
    · In the alternative, if it be held that a legal liability exists, the Authority considers that the tenancy is not on a commercial basis. Consequently Housing Benefit is not payable under the terms of Regulation 9(1)(a) of the Housing Benefit Regulations 2006 (HBR 2006)
    · In the alternative, if it be held that Regulation 9(1)(a) does not apply, the Authority refuses Housing Benefit under the terms of Regulation 9(1)(l) of the HBR 2006, as it is considered that the arrangement between yourself and the putative landlord has been created to take advantage of the Housing Benefit scheme.

    Kevin D

    [Edit: compiled as Andy posted].

    If the decision is that there is no actual liability, the sequence should go like this:

    1) there is no actual liability ([b:cc677dfdef]HBR 8 & s.130 SSCBA 1992[/b:cc677dfdef] ); or alternatively,

    2) the tenancy (or agreement) is not on a commercial basis [b:cc677dfdef](HBR 9(1)(a)[/b:cc677dfdef]); or

    3) if “2” doesn’t apply, the liability has been created to take advantage of the HB scheme ([b:cc677dfdef]HBR 9(1)(l)[/b:cc677dfdef]).

    Also, there is a further alternative – details are given below.

    The above sequence must be in that order for the following reasons. As you say, if there is no actual liability, then nothing is engaged under HBR 9. Next step: if there IS actual liability, “contrived” must come after non-commercial because the wording for contrived starts with “where the preceding sub-paragraphs do not apply….”.

    [b:cc677dfdef]Further option[/b:cc677dfdef]: The clmt is not entitled to HB because the (forged) evidence provided in support of the claim did not satisfy HBR 73 (’87 regs) / HBR 86 (’06 regs). The clmt has therefore not satisfied HBR 72(1) / HBR 83(1). Support for this approach can be found in:

    [b:cc677dfdef]R v WINSTON (1998) EWCA Crim 2256[/b:cc677dfdef]

    If you decide that the Winston approach should be one of the alternatives relied on, there is nothing to stop you making a four-pronged decision – Winston being the first alternative, then the three mentioned above. My advice is to use all the alternatives that apply. If you don’t, and the case ends up at Cmmrs, Cmmrs cannot consider anything that wasn’t before a Tribunal.

    Hope the above helps.


    [size=9:ab3ef39dd9]That [i:ab3ef39dd9]is[/i:ab3ef39dd9] the order I put them in[/size:ab3ef39dd9]

    Kevin D

    Yes. As edited, I was compiling as you posted (& I’ve removed the “almost there” – that was in response to the original post – but I can that it might have appeared to be in response to your own post).

    *mutters stuff about pedants (while looking up the words pot / kettle / calling / black etc) before returning to some more number crunching* 🙂


    It doesn’t count as pedantry when one writes in small font…it’s a new rule.

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