Terms & Conditions

[aosulliv]

Scenario.

A woman in her Eighties has submitted a claim for Housing Benefit as an assurred short hold tenancy.

Prior to February 2006, she was a non – dep on a claim with her brother, who held a registered rent which he had succeeded following the death of their father.

As the woman is not a spouse of the person to whom the tenancy belonged to, the protection has now gone. So the rent has increased (somewhat unsurprisingly) from £143.50 per week to £425.00 per week.

This is where it gets messy.

The woman, and her Solicitors, are stating that the rent increase is invalid, but want HB paid at the higher rate. We are saying that she is protected for a period of twelve months from the date of her brother’s death and therefore will recieve HB @ £143.50 per week until February 2007, and then it will reduce to whatever the rent officer sets as there will be a size related rent.

We have cited Reg13(11),(12),(13) of the HB (PAQASPC) Regs 2006, which the woman’s Sols have come back and stated that she is protected under the transitional provisions.

I cannot see exactly what they are on about, and I feel that the decision made is correct, so any suggestions would be much appreciated

[jmembery]

Difficult to be certain but I think they are suggesting she is protected under Reg 4(5) of Schedule 3 of the Consequential Provision regs.

I think they are suggesting she falls under Reg 4(5) as she comes under Reg 4(6) by way of Reg 13 10(d) as she is a “relative” who isn’t considered to have “no seperate right of occupation of the dwelling”

At least that is what I think they are suggesting.

[seanosul]

Until the argument is settled about liability, you could make a payment on account; however if the liability is £425 I cannot see how you could restrict it to £143.50 as she is protected for 12 months from rent restriction.

[aosulliv]

Payment is made on the rent that was payable at the time of death not the amount that the L.L wants to charge as far as I am aware

[jmembery]

I agree that if you decide that this lady is not protected by the Transitional and Savings provisions in the CP Regs then it is the maximum rent that applied efore the death occured that is relevent.

[seanosul]

I am curious as in this case it could be argued that there was no reckonable rent or maximum rent.

[Kevin D]

The following fleshes out some of the other contributions. It’s not a short post….. 😯

Firstly, was the brother on HB on 1 Jan 1996, AND was he CONTINUOUSLY* occupying the dwelling AND in receipt of HB from that date up until his death? *”continuously” includes a break in entitlement (but not occupancy) “…for a period not exceeding 4 weeks…”.

If the answer to the above is “no”, then the current [b:bee38547cb]HBR 13[/b:bee38547cb] (“Maximum rent”) applies. In particular, [b:bee38547cb]para 7(b)[/b:bee38547cb] [u:bee38547cb]shall[/u:bee38547cb] apply – i.e. the eligible rent is what was payable BEFORE the brother’s death (see [b:bee38547cb]para 13[/b:bee38547cb] for “reckonable rent”). So, the rent increase has no effect (for HB purposes). Even if it did, you could consider [b:bee38547cb]HBR 12(7)[/b:bee38547cb] – this provision is not an option if “old” HBR 11 applies.

If the answer to the above is “yes”, then it appears the sister is “protected”, as stated by jmembery. This means that the sister’s claim will be subject to “old” HBRs 10 & 11 (now [b:bee38547cb]Regs 12 & 13; Sch 3; of the HB/CTB(CP)Rs 2006[/b:bee38547cb]).

In short, this means an LA [u:bee38547cb]must[/u:bee38547cb] still restrict, but only IF:

1) the rent being charged exceeds a registered rent (this would only apply if the tenancy is (eventually) confirmed as being a succession with fully protected rights as if in existence as at 14 Jan 1989). If a registered rent applies, the eligible rent CANNOT exceed that figure ([b:bee38547cb]HB/CTB(CP)R 13(1)[/b:bee38547cb]); [u:bee38547cb]OR[/u:bee38547cb]

2)(a) the rent charge is “unreasonably high” by comparison with either a ROD (if applicable), or suitable alternative accommodation elsewhere (see [b:bee38547cb]HB/CTB(CP)R 13(3)[/b:bee38547cb]); [u:bee38547cb]AND[/u:bee38547cb]

2)(b) such (cheaper) suitable alternative accommodation is available. The availability must be a realistic test ([b:bee38547cb]HB/CTB(CP)R 13(4)[/b:bee38547cb]); [u:bee38547cb]AND[/u:bee38547cb]

2)(c) 12 months has elapsed following the death of the clmt’s brother (see [b:bee38547cb]HB/CTB(CP)R 13(5) & (10)[/b:bee38547cb]).

[u:bee38547cb]Note 1:[/u:bee38547cb] [b:bee38547cb]HB/CTB(CP)R 13(9)(a)[/b:bee38547cb]) provides for what an LA must take into account when judging the suitability of alternative accommodation.

[u:bee38547cb]Note 2:[/u:bee38547cb] the effects of a move must be considered to the extent of “relevant factors”. These are: i) the clmt’s employment; or ii) the education of a child (but only if the move results in a change of school). There is a relatively commonly held myth that other factors, relating to the effects of a move, can (or even must) be taken into account. That is incorrect – see [b:bee38547cb]R v Camden LBC ex parte “W” (1999) 32 HLR 879 CA[/b:bee38547cb]. There is a High Court decision where “relevant factors” was found to have a wider scope, but “[b:bee38547cb]W[/b:bee38547cb]” is a Court of Appeal case and is binding over a High Court decision.

[u:bee38547cb]Note 3:[/u:bee38547cb] if suitable alternative accommodation is not actually available, or if it is unreasonable to expect a clmt to move to the extent of the “relevant factors”, then a restriction CANNOT be made, even if the rent is unreasonably high. But, although it would be unusual and it would depend on the facts of the case, it *may* be possible to consider that the (new) liability has been created to take advantage of the HB scheme – i.e. “contrived”. Just a thought.

So, whether to refer, or not. If the tenancy is ultimately found to be rooted at, or before, 14 Jan 1989 (I think the date is right….!), it is not referred to the R/O. It is an “excluded tenancy” per [b:bee38547cb]HBR 14(4) & Sch 2 (para 4)[/b:bee38547cb]. As already stated above, if a “registered rent” applies, the eligible rent for HB cannot exceed that figure. It is also unlawful for a higher rent to be charged.

If the tenancy is subsequently found to have commenced on, or after, 15 Jan 1989, it MUST be referred to the R/O. If “old” Reg 11 applies, it is only relevant for the purposes of subsidy and for one of the comparisons as to whether the rent is “unreasonably high”. Unlike the current “Maximum rent” & R/O rules, the ROD is not an automatic “maximum” for “old” Reg 11 cases.

Other issues…..

If the clmt’s sols are saying that the clmt is entitled to succeed (and hence retain the rights of a tenancy pre-existing Jan 1989), it is nonsense to suggest that benefit should be paid on a rent level that they themselves say has no effect – the registered rent applies. The solicitors cannot have it both ways. If they switch tack and say that the [u:bee38547cb]current[/u:bee38547cb] HB rules apply, then, as already set out above, the Maximum rent is the rent payable immediately prior to the brother’s death. So, again, any alleged rent increase AFTER the brother’s death has no effect (at least not for HB purposes).

Either way, unless I’ve overlooked something, the higher rent can’t be used in the calc of HB.

In any case, ther is always Sean’s suggestion of making making payment(s) on account until the matter is resolved.

Hope the above helps more than it hinders!

[aosulliv]

Thanks for the responses

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