Terms & Conditions

[petedavies]

Claimant was responsible for LL’s child. Post 1999, no problem but before…

Tenancy agreement used a fictitious name for the LL because he shared the child’s surname. When asked about this the claimant answered with words to the effect that if you had known the situation you would not have paid HB.

My first question is this: What creates the liability, is it
(a) The fact she is in occupation?
(b) The fact they intended to contract?
(c) The instrument itself?

(a) I have taken as given, (b) Is up for grabs but I am assuming it is the case for now.

If (c) would I then have to substitute the LL’s real name on a virtual tenancy agreement, decide if there would have been an entitlement and apply UE?

For those of you not as close to SRP as me, the relevant quote from the Regs then is ” a person whose liability to make payments in respect of the dwelling appears to the appropriate authority to have been created to take advantage of the housing benefit scheme…”

[andyrichards]

I am not sure the instrument is all that important. The fact that you know the landlord’s relationship to the child ought to be sufficient.

Bear in mind that when the changes to what was then Reg 7 came in on 25 Jan 1999, there was a provision that the changes would not impact on claims already existing on that date until the end of the next benefit period. Is that a consideration in your case? Of course the “created to take advantage” provisions have existed throughout.

This isn’t from memory by the way; I managed to dig out some old notes!

[Kevin D]

Pete,

I don’t think you need to be unduly troubled by the “is” in the context of HBR 9(1)(l) [as it now stands]. I know such wording has been at issue on other regs, but I’d be astonished if a Cmmr allowed that to stand in the way of a case where it could otherwise be shown an abuse of the benefit scheme had been perpetrated.

Another issue springs to mind: Was there ever a genuine liability at all?

I was going to mention “non-commercial” too, but something is kicking around in the faded memory cells that this only applied where the L/L was resident pre 1999. But, having not looked, I stand to be corrected.

Before the advent of underlying entitlement, I’d have considered [b:38edc1a519]R v WINSTON (1998) EWCA Crim 2256[/b:38edc1a519] (a false doc may not satisfy HBR 73 (now 86), even if factually true). But, u/lying entitlement rules that out in your case.

However, howabout s.111A, or s.112, of the SSAA?

Regards

[petedavies]

Andy,

No the delay in effect is not important in this case – the decision falls into 2 areas in this respect. The latter part applied the new wording from the date of the first renewal. The earlier part is the bit I’m having problems with.

Kevin,

There has already been a succesful prosecution in respect of the post ’99 decision. The earlier part was ignored for prosecution purposes because of this question.

My problem is, in essence, this:

If a proper claim had been made there may well have been an entitlement – I am still looking at this. LL says never expected or received rent claimant says it was paid etc etc etc.

If it was the tenancy agreement itself that gave rise to the liability, it has certainly been contrived (although possibly needlessly). As such I do not think UE can be applied because the liability itself still exists, claimant is simply treated as not being liable.

If, however, it is the occupation or the intent which gives rise to the liability then, subject to other issues there would be an entitlement.

P.S. 😆 Wouldn’t it be a delicious irony if there would have been an entitlement but they destroyed that in their misguided attempts to fiddle it 😆

[Anonymous]

I agree that underlying entitlement in the true Reg 104 sense might come into play here.

On the face of it, it looks simple enough: either she was liable to make payments that the HB scheme caters for, or she wasn’t. I think the intentions of the contracting parties are what count here rather than the document in which their purported contract is set out – I’m no expert on contract law and I have taken that view second-hand from Commissioners’ decisions on sham tenancies.

However, the relationship between dishonesty and benefit entitlement is a complex one and the Winston case cited above by Kevin is partcularly interesting.

I would say there are four possibilities:
(1) The true nature of the arrangement between the claimant and her ex (as I assume he must be?) was that there was never any serious intention to create a binding rent liability – the whole thing was a sham. If so, there is no HB entitlement at any stage.

(2) There was an intention to create a binding liability, but it was one which fell foul of the old Reg 7 in its pre-1999 form. In this case, I think you are limited to the option of contrivance and the reported case law on contrivance pre-99 splits 11 – 1 against the Council. The only case the Council won was Baragraove, which was a different kind of contrivance really and so you could say that the split was 11 – 0 against the Council. At this distance in time you are going to face an uphill struggle demonstrating that the claimant’s liability was created to take advantage.

(3) There was a fully acceptable rent liability for HB purposes before 1999 and the claimant is one of those unfortunate innocent victims like Sharon Tucker who got caught up in the rough justice of the 1999 amendments

(4) You cannot pin anything on her under the old Reg 7, but the misrepresentation in the tenancy agreement allows you to catch her a different way. This is where the Winston case is relevant. Mr Winston supplied fake documents as proof of rent, but the information in them was possibly true. Had he not been dishonest, he might well have been entitled to nthe same amount of HB. But he was guilty of an offence – the Council was still a victim of his crime because it had been deprived of its right to have evidence ensuring that the payments were correct. The claimant was required under s1 of the Administration Act to make a claim in the prescribed manner, which in HB includes providing supporting evidence, and his failure to provide genuine documents meant that he had not complied with that requirement. If you apply the Winston principle, you can say that she is not entitled to benefit on a technicality.

But then, as Kevin says, Reg 104 would seem to require that you overlook that and consider her substantive circumstances … which brings you back to options 1 to 3 again.

I suspect that the best you are going to be left with is to say that the false declaration is evidence of either sham or contrivance, but you are still going to have to rely ultimately on the substantive conditions of entitlement.

[petedavies]

Thanks for all that!

I think I am going to have to submit on about 4 different alternatives.

Also, having thought about this over the w/end ‘cos I really am not happy:

1) I’m sure I can remember an old HoL ruling to the effect that “..one cannot be allowed to profit from his dishonest acts” – Kevin/Peter/anyone – can you shed any further light? – I may be wrong but I do not think the Proceeds of Crime Act helps in a situation like this, maybe the case can help?

2) It is perfectly clear from the IUC (both claimant & LL) that the T/A was created to set up an entitlement to HB. I am pretty certain that the contract would have been void for uncertainty a la Lee-Parker-v-Izzet…what happens next, both immediately and followng renewal of the agreement / renewal determinations.

[Kevin D]

Hi Pete,

Oddly enough, the issue about profiting from dishonesty arose in Hamilton.

new.hbinfo.org.com/menu2/caselaw/hamilton.rtf

Hopefully, that’ll point in the right direction….

Regards

[petedavies]

It certainly does!!

Many thanks.

I’ve got Lazarus, Cleaver & Bersford. If you want ’em let me know.

[Author]

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