Terms & Conditions

[Anonymous]

HI

I have a case going to commissioners revolving round LA decision to pay claimant rather than LL and notification of that decision.

My understanding of Regs 93 & 94 is that where there is a claim for rent allowance these two regs will always have to be considered. If that is the case does a decision not to pay the landlord (for whatever reason) mean that a decision has been made under regulation 93 or 94 and bring the LL into the ‘person affected’ group by Reg 3 DAR? This interpretation of Reg 3 wouldn’t make sense because every LL would become a person affected and be entitled to notification of the decision not to pay. So if this interpretation is flawed, under what circumstances would a LL become a person affected when the LA has decided not to pay direct to the LL or are there no circumstances?

Any thoughts? Any caselaw?

[Julian Hobson]

Very dangerous

If every L/L falls to be a person affected irrespective of whether they know that their tenant has made a claim for benefit in the first place, all hell will break loose.

Now that its been raised, I can understand why reg 3 (D&A) might mean that a L/L is a person affected even where reg 93/94 means that payment is not due to them.

I’ve looked for a get out and can’t really see one apart from in schedule 6 where the only content prescribed for such a decision appears to be where the decision is that payment is to be made to the L/L. That doesn’t help when you think that we would issue a “decision” in cases where the LA decided not to pay the L/L when they might reasonably have expected to have been paid.

I hope you get the result we would all want you to get.

[Anonymous]

In CH/0180/ 2006 Mr Deputy Commissioner Mark as he then was criticised an LA’s argument that the landlord need not be notified . He noted at paras 19-21

“ Regulation 3(2) of the 2001 Regulations provides that paragraph (1) was only to apply in relation to a person referred to in paragraph (1) where the rights, duties or obligations of that person are affected by a relevant decision. The council has contended that as there was no decision to pay the benefit to the landlord, the landlord was not a person affected by the determination. A passage from paragraph 28 of a circular A9/96 issued by the DSS is relied on in support of the proposition that in relation to regulation 94 the ‘person affected’ provisions only bite when a council has made a positive decision to make payments direct to the landlord.

It is difficult to think of a less attractive proposition. It would mean that the landlord need never be told if a joint application for rent to be paid to it is unsuccessful, and that it is simply left in the air whether the application for housing benefit has been determined or not, and whether it should be seeking its rent from the tenant without regard to anything that might be coming direct to it from the council by way of housing benefit.

It appears to me to be self-evident that the landlord’s rights are affected. A landlord may wish to decide how to exercise its rights if the tenant is in arrears with rent. Any decision is likely to be affected by the question whether the application for housing benefit has been determined and whether there is benefit to be paid direct to the landlord. That is also the case if the council has decided to pay the tenant rather than the landlord. The landlord will then wish to take steps to recover the rent direct from the tenant, and will also have the right to appeal the decision of the council not to make the payment to it direct (CH/2986/2005). In addition, the landlord will need to decide whether to bring possession proceedings against the tenant, and if it does so, the terms on which any possession order could be obtained from the court would be very different if there was still a decision on housing benefit to be made, than if an award had been made and payment had been made to the tenant. This would be all the more so if the tenant had not made any payment of rent and had used the benefit for some other purpose”

I have every sympathy for those who chose not to tell their landlords they are claiming HB, but it does seem to me that a landlord is a person affected even by the initial decision on a claim.

HB departments regularly dont apply the law correctly and in cases where the claimant is obviously in a postion where his landlord does not know he has claimed HB, I think turning a blind eye to the letter of the law would be justified, even if you have to rely on Article 8 of the European Convention “Everyone has a right to respect for his private and family life,his home and his correspondence”

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