Terms & Conditions

[Anonymous]

Morning all,

We have a case that is causing some grief. An existing claimant moves in with her mother and her entitlement ends. At the time, she states that her mother is planning to move out and that she is considering letting the property to her daughter, our (ex) claimant. Single Person Discount is removed from the mother’s CTax account, and all is well and good.

Sure enough, three months later, the mother moves to a neighbouring borough and lets the property to the daughter who makes a claim. My colleague has assessed and paid the claim as it stands.

I come to look at it and, being a cynic, no sorry, a realist, I want some evidence that the tenancy is above board. I feel I need something more than the tenancy agreement to assure myself that the tenancy satisfies HB reg 9(1)(a) – commerciality – and reg 9(1)(l) – taking advantage of the scheme. But what?

My colleague contends that the tenancy agreement (as proof of a legally enforceable liability) and the claimant’s original statement are evidence enough and that it is not reasonable, under HB reg 86 to ask for any further information. At the very least, I want a Land Registry search done but I am now doubting myself as to what we can ask for to establish this case as okay. Having lost this sort of thing at appeal I know it is fiendishly difficult to prove a tenancy is non-commercial or created to take advantage, but it goes against the grain to accept what, for me, is such flimsy proof.

Or am I being too grumpy?

Cheers,

Darren

[Anonymous]

The problem at the moment is that what you call ‘flimsy proof’ is a lot more substantial than any proof to support the opposite view. In fact, from what you have said, you have zilch. So unless you can dig something up, on the face of it I would agree with your colleague that benefit is payable.

If you are determined to be a grump, I would suggest interviewing landlord and tenant separately and asking the usual non-com questions…have you let before, would you let again, what happens if the rent’s not paid etc etc.

[emmadring]

If I were looking at a situation such as this I would probably accept what you have for now and then write in three-six months asking for proof that rent has been paid – bank statements showing transactions, rent book etc.

If no rent paid then you would have something more concrete on which to base a decision of non-commerciality/contrivance. Given the circs it sounds as though it would be easier to show contrivance than non-commerciality.

Only problem is that of course you may end up with an OP to recover.

I don’t agree with your colleague that it’s unreasonable to request more info, but I agree it’s hard to know what clt could provide that would satisfy you that the agreement is above board!

[andyrichards]

Is this scenario really that odd? The mother has moved elsewhere but still has this property on her hands. Letting it seems pretty reasonable in the circumstances, and given what a leap in the dark taking on a tenant can be, what better solution than to let to a family member you know well and who needs a place to live?

Emma’s suggestion of an ‘intervention’ to check on payment of rent at some point in the future seems reasonable. I really do not see what else you could ask for at this stage.

[peterdelamothe]

I think doing a land registry search is perfectly reasonable. I personally think such a search should be carried out on all private tenancies but the cost is obviously a problem. Got to say that the claimant has advised you throughout which is a change so you could give her credit for that.

[andyrichards]

Sure, do a LR search, but I am not sure what you expect it to tell you.

[Anonymous]

…er…who the owner(s) is (are)?

[andyrichards]

I meant how will it help in the context of this case! The issue of ownership does not appear to be what’s in doubt here. Clearly it might reveal something earth-shattering, as any LR search [b:e986fbac65]might[/b:e986fbac65] do. But I do not see it taking this particular case any further forward.

I actually would not agree with making LR searches routine on all cases, even if they were free. Can you imagine the bureaucratic quagmire which would ensue?

[Anonymous]

Sorry, was being a bit flippant…I agree, a Land Registry search is a real shot in the dark on this one. From Darren’s original post there seems to be little to suggest that the daughter may be a co-owner.

If Land Registry requests were free…well, something like a RAT would be good. Or you could build up a library of office copies, and the Land Registry would notify you whenever a change in ownership occurred. Wishful thinking…

[Anonymous]

Ah, if wishes were horses and Land Registry searches were free……

I agree with Peter in that I would do a Land Registry search on all properties with private landlords (with the exception of RSLs) and in one LA I worked for we did just that. The Fraud Team had an award from the Challenge Fund (I think!) and a dedicated terminal linking with the Land Registry so they could conduct their own searches. In this case, I don’t think it unreasonable to establish who owns it.

I do take the points made about the tenancy not being unusual. I have come across many rent allowance claims where the landlord is a close relative. It is more than likely that the tenancy is “above board” and there is nothing untoward going on. I am just a nasty, suspicious man who has been assessing benefit claims for far too long.

The suggestion that we diary date (don’t even think about risk-based interventions here) and ask that the rent is being paid has merit, but not in this case as HB is paid directly to the landlord. Even if I take it further and write to, or interview, the landlord, I doubt it would turn up anything.

I think I’ll just settle for having being grumpy and distrustful in the first place and let it go.

Darren

[Anonymous]

What if your claimant simply says she pays her mother in cash and does not get a receipt?

You still have nothing to justify refusing the claim.

[chris harvey]

Yes and don’t forget the onus is on the authority to prove non commerciality or created take advantage, not the other way round.

[Anonymous]

Oh Stainsby, you are a tease. I’m not looking to refuse the claim. I just wanted more evidence that the claim satisfied reg 9. The consensus seems to be that there isn’t much that can be provided to prove that it does and equally, there isn’t much to show that it doesn’t. So we award benefit on that basis. I’m cool with that because we have made our decision on what we can reasonably ask for; I’m less grumpy just now.

As for cash payments, well that’s fine too. In following Emmadring’s suggestion we will have asked for proof and we will have got a statement saying that it’s paid up to date, in cash and there are no records of this. If the landlord can agree this, then we have all the proof we can get. But at least we would have asked for it and got it.

Cheers,

Darren

[Anonymous]

I have been dealing with an appeal in regard to a fraud investigation case where a substantial shortfall between the full rent and the HB has allegedly been paid in cash. I have asked to see certifed accounts from the landlord’s accountants showing the rental income, and/or tax returns showing the declaration of the rental income to Inland Revenue/HMRC. Not much use to you at the moment, but could be useful for a future check.

[Hilly]

We would have visited this one before putting into payment as a matter of course. Proof of payments would have been requested and if not available then would be requested again at a later date. We would also have advised the customer that they should always have proof of rent payments irrespective of whether they’re related to the landlord in case of a dispute at a later date.

Further questions would have been asked around commerciality, i.e what would happen if HB refused? Would she have to move out? If she were to move out voluntarily would the mother let the property to someone else? etc.

8)

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