Terms & Conditions

[anthony]

Our appellant originally made a CTB-only claim, and stated on the form that they weren’t claiming HB. We missed this when assessing, and paid the CTB, but refused HB, our reason being that the landlord is a close relative (father, not co-resident) and there appeared to be no enforceable rent agreement. It seems a matter of fact that the tenant has not been making any rent payment to their dad for several years.

On receipt of the award notice, the claimant appealed, arguing that he does have an enforceable rent liability, and that he was previously unaware that he might be able to claim HB as he thought his father being his landlord disqualified him.

The land registry shows that our claimant is actually named as a part owner of the property, owning a third of it along with his father.

He has now made a claim for HB and asked for backdating, which we are not going to pay. – (neither the HB nor the backdating). We will refuse it on the same basis – there has been no attempt by the landlord to enforce rent for at least 2 years, and it fails reg 9(1)(a).

But how to present the appeal to the Tribunals Service? We are thinking that as no claim was made originally, that actually there has been no decision on the HB claim and therefore it will be out of jurisdiction for the TS. If he appeals against our first decison than that is another story of course, but this is about his original appeal, after he specifically made no claim for HB.

Thanks

[Anonymous]

Assuming that the substantive matter ends up being heard by the Tribunal, either on this appeal or a future one, here are some ideas.

Is it a house or a flat? If it’s a house, the claimant is probably a joint freeholder and excluded from HB under Reg 12 – I would run with that as the first argument as it would appear to kill the appeal stone dead.

If it’s a long lease I can see that you will probably be looking for a range of alternative arguments. As well as Reg 9(1)(a) (your argument sounds good on that issue) I would also be thinking about whether one of the joint leaseholders is in any legal position to charge rent to one of the others. You will probably be met with a load of flannel about trustees and beneficiaries, which may or may not convince the Tribunal, but I would certainly look into the argument that the son is not liable to pay rent as a condition of occupying the dwelling (“What are you going to do, evict me? Oh that’s right, you can’t, I own the place”).

[anthony]

Thanks – I should have enlarged on the issue about his joint ownership in my first post – yes I agree that’s a major issue for the actual claim we now have. The claimant has actually falsified his application form about this.

Anyway – the thing that is troubling us is the original notification/decision which was made. Do you think it really was a decision on our part?, given that no claim existed? Our thinking is if not then this would be out of jurisdiction, even though the claimant was unfortunately informed of appeal rights in the notification letter.

[Anonymous]

I think you are right.

Entitlement is dependant on a claim made in the prescribed manner: s1 of the Administration Act.

Section 34 of the Social Security Act 1998, which I think is still relevant, says that Regs must require the Council to notify the claimant of its determination “where a person claims HB”

Sched 7, para 6(1) & (3) of the CSP&SS Act 2000 provides for a right of appeal against a decision “on a claim or on an award of” HB, and there was neither of those things in existence to make a decision on in your case

So I think you can say that neither the act of making the decision itself not the letter informing the claimant of it can have created an appealable decision for the purposes of Sched 7.6 – without a claim or a pre-existing award, there cannot be a decision of that kind.

So I agree with you that the appeal should be struck out as premature.

[Kevin D]

[Edit: being compiled as more posts were made]

To add a bit more onto Peter’s posts (& to shameless repeat some of it), here goes….

Firstly, the question raised. The fact you’ve made a decision makes it more likely than not a Tribunal will accept an appeal. Also, any refusal (even if successful) will simply delay the inevitable. A claim will definitely be made and you’ll be in exactly the same situation. So, by all means invite (neutrally) the Tribunal to consider the issue of claim? no claim?, but don’t be too bothered if it goes against you on that issue.

As to the substantive issues, I broadly agree with Peter. In order, I’d consider deciding (or revising, based on the appeal) as follows:

1) the clmt is an owner; therefore payment(s) are not eligible for HB [[b:1b758cd045]HBR 12(2)(c)[/b:1b758cd045]]. “Owner” is defined in [b:1b758cd045]HBR 2(1)[/b:1b758cd045]. Alternatively;

2) there is no (genuine) liability, so no HB [[b:1b758cd045]HBR 8; & s.130 SSCBA 1992[/b:1b758cd045]] and/or any agreement suggesting otherwise is a sham (“sham” – see [b:1b758cd045]CH/1171/2002[/b:1b758cd045] para 11). Alternatively;

3) there is a long tenancy; therefore payment(s) are not eligible for HB [[b:1b758cd045]HBR 12(2)(a)[/b:1b758cd045]]. “Long tenancy” is defined in [b:1b758cd045]HBR 2(1)[/b:1b758cd045]. But, see BOTH [b:1b758cd045]CH/2743/2003(p8 )[/b:1b758cd045] AND [b:1b758cd045]CH/3586/2005(p23-28 )[/b:1b758cd045]. Alternatively;

4) [option, if applicable] Clmt was owner in the last 5 yrs and didn’t have to relinquish ownership to continue occupation [HBR 9(1)(h)]. Alternatively;

5) non-commercial

6) liability created to take advantage of the HB scheme (must be the dominant purpose)

If you revise the original decision in response to the appeal, you need to renotify the clmt, but must still proceed with the appeal to Tribunal if the revision is not in favour of the clmt. Probably best to invite the clmt to submit new grounds if the original decision is revised.

Regards
Kevin

[peterdelamothe]

“He has now made a claim for HB and asked for backdating, which we are not going to pay. – (neither the HB nor the backdating). We will refuse it on the same basis – there has been no attempt by the landlord to enforce rent for at least 2 years, and it fails reg 9(1)(a)”.

I would just make the point that you cannot refuse the backdating on this point – it has nothing to do with “good cause”.

[anthony]

The backdating in this situation ultimately fails as a knock-on effect of the claim itself being disallowed. There wont be any award to backdate, regardless of the dates we use. Whether or not we accept good cause (we are most unlikely to) we will have to set this out in the tribunal submission.

But yes, you are right of course.

There is something of a hierarchy of reasons why we wont be paying ;o) but I didn’t go into full detail in my first post.

Thanks for your input – I will make sure the tribunal submission covers this point.

[Author]

Posts