Terms & Conditions

[tiggie67]

We have a case where a succession tenancy has been given to a 16 yr old child following the death of his mother. He has no income and is still at school. However he has a guarantor living in the same property(father) who did not fullfil the conditions for the tenancy to be passed to him.

The father receives bearevement allowance, DLA Mobility and Care, CTC and CB.

Who do we accept a HB claim from, the child with the liability with his father as a non-dependant – or – the father (guarantor) who has an obligation to ensure the rent is paid with the child as a dependant?

[Kay_Tade]

I don’t think it really matters as they would both be entitled to HB. I would probably try and pay HB based on the higher entitlement in comparison. IMHO.

[Anonymous]

Agree – I’d pay whoever makes the claim.

[Anonymous]

This is not as easy as it looks.

As a minor the claimant cannot hold an estate in land – Law of Property Act 1925. Because he is nevertheless the rightful successor, someone else must hold the tenancy on his behalf as a trustee until he is able to take it over – see the case of Prince and RBK&C.

The possibilities that might allow him to claim HB are:

– he is liable to reimburse his father for the outgoings the latter incurs
– he can be treated as if he is liable to make payments to the real landlord

The first option would be caught by Reg 9(1)(e) (payments to trustee of a trust of which the claimant is a beneficiary) but the non-contrivance exemption would apply; however Reg 9(1)(b) would be more of a problem

The second option fails if the father is actually making the paymnts, because the relevant part of Reg 8 only applies where the liable person is not doing so.

Therefore, the better option is for the father to make the claim – he is the person who is actually liable to make the payments and it is the dwelling that he occupies as his home, so job done.

[Kay_Tade]

I understand PeterB’s point but the law on land/tenancies etc really should not make a difference should it?

The 16 year old is “liable” to pay rent to the “L/L” and the L/L has granted a tenancy, albeit “maybe” incorrectly, I will compare this scenario to a sublet, then the 16 year old is entitled to HB, as far as I can see.

[HaighR]

I would insist on the farther making the claim for the reasons set out by PeterB, also won’t the farther as a non-dep generate a NDD if the son claims?

[d-stainsby]

The 16 year old cannot hold the tenancy until he is 18. The tenancy is held in trust for him as it was in the Prince case.

If you accept a claim from the 16 year old you get some absurd results. The boy’s applicable amount is that of a single person under 18. His father cannot be included in the applicable amount because he is not responsible for his father, but father is also not a non dependant. This is because HB Reg 3(2)(a) precludes a member of the claimants family (as defined by S137 of the SSCBA) from ever being a non dependan.

On the other hand the resources of the family must be aggregated,(S136 SSCBA). So then if the boy is the claimant, you would assses the case on the basis of an applicable amount for a single person under 18, and the income is that of the father assuming the boy has no income of his own.

It is arguable that the father is in any case liable for the rent as the trustee of the tenancy, but regardless of this, the only sensible way of assessing the case is to accept the father as the claimant.

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