Joint tenants and 52 week protection on death

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  • #44517
    lyndsey_williams
    Participant

    Hi – probably clutching at straws here, but anything that can mean we can legitimately keep a roof over this customer's head will be gratefully received!

     

    We have a case where mother and daughter are joint tenants based on a rent of £1000 per month.  The daughter was paid HB for her and her child based on £500 per month, her apportioned share of the £1000 per month.

     

    The mother has died meaning that the daughter (our claimant) is now liable for the full £1000 by herself and is clearly struggling so has applied for a DHP.  Rather than use this budget I was pondering whether we should have awarded 52 week protection and have found conflicting information in the regs and GM and wondered if anyone had any views.

     

    12D(3) refers to the claimant "occupying a dwelling which is the same as that occupied by him at the date of death of any linked person" – CPAG's commentary suggests that this could include joint tenants because of the use of "occupying the same dwelling " rather than "resides with".  However the reg 2 defines a linked person as "someone who does not have a separate right to occupy the dwelling"- which a joint tenant would have.  The guidance manual gives an example of two brothers being joint tenants where the protection would not apply.  There seems to be some conflict between the definition of a "linked person" and the use of "occupying a dwelling" in reg 12D(3).

    There are a couple of posts on here where users have applied protection for relatives who are joint tenants so I am wondering if there is some caselaw to back this up or some further guidance I am missing.

     

     Any thoughts?  Has anyone else had this scenario and what decision was made?  If others have allowed the protection, what eligible rent has been used?  12D(3)(a)(ii) refers to the reckonable rent due on the date before the person’s death if there was more than one person liable to make payments – so does that mean we could use £1000 pcm?

     

    Thanks in advance 

    #125842
    peterdelamothe
    Keymaster

    Joint tenants and 13 weeks protection


    is a similar question asked today on the other form of protection.

    No I dont know of any caselaw and I agree that there may be a difference in opinion. DWP suggest it cannot apply to joint-tenants as a policy but does the wording of the legislation support that? I am not sure it does. Lets say you have two tenants occupying a two bedroom property. Each has their own tenancy and are not jointly liable for the full rent. They clearly have a seperate right. But joint tenancy is very different…it is one contract that applies to all. I am not sure this means they have a seperate right though. It is arguable it is the same right.

    Another way to look at is this. Lets say the mother had made a claim for HB. The three bed rate would have applied. If the daughter had died, there would have been no argument about the 52 week protection applying to the full rent.

    My guess is that DWP policy makers had in mind non family members. Two friends / flat mates. They may hardly know each other ….one gets killed in an accident. Why should the other benefit for a year? Very different for a family.

    So you have to decide which opinion to follow. My guess is DWP would not have problem at all in your awarding the 52 week protection in the circumstances of your case.

    #125847
    Anonymous
    Guest

    A joint tenant does not have a separate right to occupy the dwelling – there is one tenancy, either they both get evicted or neither of them gets evicted. Separate right to occupy means individual agreements, effectively an HMO. A “linked person” has to be a relative or partner – friends/flatmates don’t count. See Reg 2.

    However, the protection on death rule is only going to preserve your claimant’s eligible rent at its pre-death level of £500pcm so it’s no use to her in any case. What she wants is a higher amount under normal change of circs provisions – death of a linked person triggers a fresh LHA determination under Reg 13C(2)(d)(ii). If the two-bed LHA exceeds £500pcm you can now pay up to the two bed LHA instead of capping at £500 as you have done in the past.

    #125849
    lyndsey_williams
    Participant

    Thanks both of you, the LHA rate is slightly higher than the rate we were paying her before so I will apply the protection to that part and then consider her DHP until the end of the tenancy. She knows she needs to move but is tied into her tenancy until next May and the landlord does not seem to want to budge on either the rent charged or bringing the tenancy end date forward.

    If we are treating them as having the same liability and agreement prior to her death, I wondered if I could argue that the eligible rent was £1000 as this was the reckonable rent due by the jointly and severally liable parties, but for the fact that we apportion the charge.

    #125942
    Anonymous
    Guest

    Why does the clt’s benefit change at all? Surely the whole point of the protection is that a clt won’t be worse off after the death of a linked person. The eligible rent is to be the same as it was “on the day before the death occurred”. The Regulation doesn’t allow for the eligible rent to go up does it? The change of circumstaces would be that that she is now only eligible for the 2 room rate when previously (perversely some might say) she was eligible for the 3 room rate, on a liability of £1000 per month. However the rent increase can’t be applied until April and she is protected from dropping to the 2 room rate by 12D(3) for a year from the date of death, so “no change” and a DHP would be my view.

    #126108
    Anonymous
    Guest

    I see what you are thinking Lindsey – the eligible rent before the death was 2 x £500 across the two claims, so could you argue that the aggregate of those two eligible rents should be allowed to the survivor for the next twelve months, even though her own eligible rent was capped at £500 previously? That’s an ingenious argument. I certainly believe that the Reg is deliberately drafted so that it does not refer to the claimant’s eligible rent, it just says the eligible rent: I think this is so that a non-dep who succeeds to a tenancy inherits the deceased claimant’s eligible rent … so why not read it as meaning “the eligible rent that the claimant and/or the deceased had before the death – either one of them or both of them as the case may be”. I am not really convinced though … I think the right answer probably is to increase the claimant’s eligible rent from £500 capped to the two-bed LHA.

    Chris – yes the regulations do allow for the eligible rent to go up. Protection on death at the same eligible rent as applied before is the [u]worst[/u] that can happen – if a regular LHA calculation would give you a higher rent, that is what you get. The death triggers a regular LHA calc under Reg 13C(2).

    #145120
    Merlinlives
    Participant

    I have a further twist to add to this thread.  This is an actual scenario (believe it or not)…

    4 joint tenants, in three parties.  Mother, Son, Daughter and boyfriend.  The rent liability is 1500pcm, there are three claims and the liability is 500pcm per party/claim.  They are a common houshold, so each claim has a three bed rate (3 bed lha rate =624.99pcm).  Each claim receives 500pcm in benefit.

    The daughter and boyfriend become foster carers, so they will get a 4 bed rate.  (4 bed lha rate = 700pcm)  Do the other parties then get a 4 bed rate due to the common houshold rules?

    The mother then dies.  Do the remaining 2 claims get 52 week protection, and if so, at what rate?  Now their rent liability is 750 per claim.  Could they possibly get the 700pcm benefit each, for 52 weeks?

    Thanks for your help.

     

     

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