Terms & Conditions

[NeilC]

Hi. The situation is this:

A customer lives with his partner.
The tenancy is in his sole name.
He moves out leaving his partner living there.
The deposit is returned to the named tenant.

The landlord has agreed that she can stay there pending the receipt of a PTD. He is concerned that she will not be able to afford the rent and will not issue a tenancy agreement or accept rent until a PTD has been carried out.

The problem is that the Rent Service will not carry one out because she is living at the property.

Can anyone see a way around this. I have suggested she puts in a full claim but the landlord will not provide proof of rent until a PTD has been received?

Does this partner have any legal rights to stay in the property which automatically creates a tenancy?

[markp]

You can treat the partner as liable to make payments.

But, it would seem that the owner in this case is not creating a proveable liability to you (and therefore the court she he try to evict) and so she should seek advice from somewhere like CAB re her rights of occupancy. No PTD can be entertained as she is in residence.

At this point in time I would not pay anything in respect of this occupancy. However were she to provide proof of rent paid (receipts she may have etc) I would consider paying her subject to income etc…..

Do I know what I'm doing? The jury's out on that........................

[NeilC]

Sorry. To clarify. I didn’t mean paying the full claim because rent liability can not be proved. Just setting it up to the point that we received a Rent Officer’s decision. It’s the only way I can see of getting around this.

[markp]

I think it’s me that’s lost something in translation here!

Is the owner not charging her rent? No rent charge, no payments for use and occupation, mesne profits or anything, then no payment of HB can be made.

Similarly he cannot evict for arrears etc, but would have to take possession action on a squatter because legally that’s what the partner is.

Has she offered payment of rent and has he refused to accept payment? Or is he simply not making any charge at all?

What I don’t understand is why the owner isn’t looking at obtaining income from the property. After all he was quite oprepared to when the resident partner was part of a couple.

It strikes me that you may have a situation where the landlord is trying to obtain an amount to charge where he won’t have too much collecting to do and that makes me think that a contrivance on the landlord’s part may be occurring.

Remember that the landlord also cannot legally backdate a tenency so if and when it is resolved then any tenancy can only start from the date of the agreement.

Do I know what I'm doing? The jury's out on that........................

[NeilC]

I think he’s just trying to avoid creating any legal agreement between himself and her before he knows that she can afford the rent. The act of accepting money from her would create a tenancy.

[Anonymous]

I think you can say that she is a prospective occupier if you want to. The test is that she is “contemplating occupying the dwelling as [her] home”, which I think she is. In these circumstances she is at a crossroads and I think she does meet the conditions. More importantly, it is up to you to decide and the Rent Officer should stop bellyaching and get on with the subservient task of carrying out valuations any time you damn well say so. Who do these people think they are?

One thing you will need though is a suggested rent – otherwise the RO cannot say whether or not it is too high. The RO cannot value proactively – they need to say more than “we were thinking of entering into a tenancy, any idea how much the rent should be?”

[Anonymous]

Our RO’s do PTD’s when the tenant is already living at the property (e.g. the LL is condidering renewing the tenancy but at a higher rent).

I wonder why Neil’s won’t?

[aosulliv]

Your R/O is incorrect not Neil’s

[NeilC]

Ok. Thanks to everyone. I’ll have a little chat with them.

[Anonymous]

Why? I can’t find anything that says the RO[u:8afa62c993] can’t [/u:8afa62c993]do it

[Darren W]

We have asked the RO for decisions on PTD’s where the claimant is many times before. If the RO still refuses could your prospective claimant not ask a friend to request a PTD on the property?

[Graham Keys]

MartinW – Our Rent Officer will value on a property where the claimant is resident but contemplating a renewed tenancy, although I had to persuade him that he could do it.

Reg 14(1)(e) allows the “prospective occupier” to request a PTD, Reg 14(10) defines “prospective occupier” as:

“prospective occupier’ shall include a person currently in receipt of housing benefit in respect of a dwelling which he occupies as his home and who is contemplating entering into a new agreement to occupy that dwelling, but not in a case where his current agreement commenced less than 11 months before such a request;

I think your Rent Officer is acting correctly.

[Anonymous]

Article 6 of the Rent Officers HB Functions Order lists three kinds of tenancy for which no determination can be given in paras (1) to (3), and concludes in para (4) by saying that the RO should give notice to the LA if s/he becomes aware that the tenancy is “not one which gives rise to a duty to make a determination”. Arguably para (4) only applies to the three kinds of tenancy mentioned in Article 6, but even if it is wider than that I think the legislation is structured so that the Council has the final say. The process of deciding that a claimant is a prospective occupier is carried out at the LA end under the HB Regs.

The Rent Officer might be able to say “Did you know this person is already living in the home?” to which the Council can reply “Yes, we know about that thank you very much, but there is no tenancy agreement yet and we have decided to apply for a PTD because we consider her to be a “prospective occupier” within the meaning of Reg 14. Now kindly do as you are told unless you want me to come round there and shove your locality up your vicinity”.

Reg 14 does not specify that the claimant must not yet be occupying the dwelling. It says that the claimant must be contemplating occupying the dwelling and I would argue that Neil’s claimant is doing exactly that, and it is up to Neil to say so and the Rent Officer cannot overrule him.

[juju]

Pete thanks for cheering me up – have laughed all through both your responses. Is it xmas cheer you have been indulging in or is it really Baa! Humbug!

[Anonymous]

Just memories of a certain Rent Officer I used to know. When faced with insurmountable argument he would just grin like a Cheshire cat. Made me want to smash his face in. Well, OK, not really. But it was infuriating.

Jualanne, is that you? Then you know who I’m talking about

[Author]

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