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‘untidy tenancies’ - advice from Chartered Institute of Housing

FIT Advisor
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This is the advice from CIH

If liability for rent is shared between two people but only one of those people is covered by the universal credit claim (e.g. because a relationship has broken down and one party has left), the Department for Work and Pensions (DWP) will only award up to half of the housing costs. Landlords can avoid this problem by ensuring that absent parties assign their tenancy to the remaining tenants and by encouraging tenants to notify them of changes in occupancy.

Your views welcomed

Paul_Treloar_CPAG
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See p.488 of WBH 2015/16, section titled “Another person is liable but is not paying” which sets out position as to why someone affected in this way should receive full housing costs, and in particular which notes that, in respect of rent payments, it does not matter whether or not the landlord is prepared to transfer the tenancy to you or wants to evict you.

FIT Advisor
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Thank you for that Paul, interestingly JCP have advised one of our customers he will only get 50% as his partner has moved out, both on tenancy.

HB Anorak
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There is a difference between:

1. being treated as liable for payments which in real life you are not liable to make, and
2. apportionment of payments that two or more people are jointly liable to make

The guidance at p488 in the CPAG handbook is concerned with the former: claimants who are not liable for rent being treated as if they were (eg a non-dep while the tenant is a long-term hospital patient or prisoner). 

A joint tenant is already liable for all of the rent so there is no need to treat him/her as if s/he was.  The issue here is apportionment of the joint liability for UC purposes.

The default apportionment for private tenants under para 24 of Schedule 4 to the UC Regs is equal shares, but couples who are jointly liable with someone else get a share each.  There is discretion in subpara (5) for DWP to apportion the rent differently if the default method would be unreasonable - that might well be the case where one of the joint tenants is absent and in no position to pay.  The resulting apportioned share of the rent is compared with the claimant’s personal LHA rate and the housing element is the lesser of the two.

Para 35 of the Schedule makes similar provision for joint social tenants, with the baffling omission of the bedroom tax (sshhh!): if apportionment in equal shares would produce an unreasonable result there is discretuion to override it.

Paul_Treloar_CPAG
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Thanks for the added clarification Peter. You can find explanations of the joint liability rules in the WBH at p.501 for private tenants and p.504 for social tenants.

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Sorry don’t understand.

Can someone (Anorak) clarify ?

Doesn’t this disadvantage Domestic Violence cases, who for example seek to injunct a partner away?

 

 

HB Anorak
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Those are the cases where you would hope that DWP would use the discretionary provision to apportion 100:0, although they would need to be satisfied that it is reasonable not to expect the target of injunction to pay any rent for the time being.

The Delivery Partnership Agreements between DWP and local authorities are supposed to provide for DWP to call on the experience and know-how of local authorities in cases like this, but I think it is going to be up to the claimant to flag the issue in the first place.  There is also a role for supportive landlords here as well - housing associations have told me that they are quite impressed with DWP’s attitude to liaison - they want to build relationships with housing associations and have nominated SPOCs for quick problem solving.

SarahJBatty
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Thanks for raising this sanwyp.  It is extremely common for former partners to remain on tenancy agreements.

nevip
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And, further to HB Anorak’s point about liability, and on assignment generally, the liable person not paying bit would have limited significance anyway.  That is because when a party to a joint periodic tenancy leaves and gives notice to quit and in the absence of a term to the contrary in the tenancy agreement, then the entire tenancy is severed (dissolved) and the one who has left the property would only remain liable for rent for a further four weeks.  Notice to quit can also be seen to be served, if not in writing, by the actions of the tenant alone, such as handing back the keys to the landlord. So, assignment would have to be done before the joint tenant leaves.

Furthermore, it is not possible for a joint tenant to assign his share of the tenancy alone.  All the tenants must assign the entire tenancy to the new tenants (which may include an existing tenant).  This has to be done by a deed of assignment and usually requires the landlord’s permission.

I can only see assignment being a meaningful option where the remaining occupier is under occupying.  Otherwise, there are two other available options.  Either the remaining occupier simply holds over as a tolerated trespasser liable for mesne profits (compensation for the use of the land, which could be categorised as rent under schedule 1(2)(b) of the UC Regs) or the landlord simply grants him a new tenancy.

SarahJBatty
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So basically whilst landlords may wish to ‘tidy up’ tenancies as a preventative measure, this isn’t the main solution to the problem of DWP indicating only 50% of housing costs can be paid in individual UC cases.

Claimant is entitled to a 100% apportionment if DWP ‘satisfied’ that it would be unreasonable to do it any other way, ie remaining tenant is liable for full rent because of joint and several liability and will lose home unless they pay.

As has been said, social landlords can assist claimants by promptly providing a letter to confirm liability and occupancy. 

Am glad this has come up at this stage.

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nevip - 12 May 2015 12:12 PM

Otherwise, there are two other available options.  Either the remaining occupier simply holds over as a tolerated trespasser liable for mesne profits (compensation for the use of the land, which could be categorised as rent under schedule 1(2)(b) of the UC Regs) or the landlord simply grants him a new tenancy.


HB anorak is arguing that you cannot claim mesne profit under UC


http://www.rightsnet.org.uk/forums/viewthread/7945/

nevip
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MartinB - 14 May 2015 12:39 PM
nevip - 12 May 2015 12:12 PM

Otherwise, there are two other available options.  Either the remaining occupier simply holds over as a tolerated trespasser liable for mesne profits (compensation for the use of the land, which could be categorised as rent under schedule 1(2)(b) of the UC Regs) or the landlord simply grants him a new tenancy.


HB anorak is arguing that you cannot claim mesne profit under UC


http://www.rightsnet.org.uk/forums/viewthread/7945/

I don’t think he is.  He’s saying that there is no specific provision for them, unlike in HB, but the definition of rent in the schedule might be broad enough to catch them.  As always, claim them where applicable and let the tribunals sort it out if refused.

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sanwyp - 11 May 2015 02:33 PM

This is the advice from CIH

If liability for rent is shared between two people but only one of those people is covered by the universal credit claim (e.g. because a relationship has broken down and one party has left), the Department for Work and Pensions (DWP) will only award up to half of the housing costs. Landlords can avoid this problem by ensuring that absent parties assign their tenancy to the remaining tenants and by encouraging tenants to notify them of changes in occupancy.

Your views welcomed

My final view, is that this simply will not work. I don’t intend (unless instructed otherwise)to advise “absent” or “uncooperative” (take your pick) parties to give up their secure permanent accommodation without first taking independent legal advice, and giving them a confirmation of advice letter accordingly….. 

I strongly suspect Messrs Carter and Tuck will take a very dim view of any LG advisor/officer that takes a contrary view.

FIT Advisor
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I suppose this is why there is a need to communicate effectively with the DWP in respect of the intention of the absent tenant.  However, in terms of the rights and protection offered via a secure and permanent tenancy, there is the condition that the tenant will take up residence and for any remaining tenant to advise of any absence in excess of 8 weeks. We do have examples of joint tenancies where there has been a sole tenant for many years and this could result in the current resident tenant moving out and an absent tenant returning even though they have not lived there for some considerable time. On the other hand you could have a couple who have parted but working towards possible reconciliation.

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Perhaps you can tell us Sanwyp, if 3 Rivers will be pursuing absent parties to assign their tenancies, when the tenancy is currently held by joint tenants who are in rent arrears…..? 

I suspect I know the answer…....

FIT Advisor
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The whole situation clearly needs to be looked at by Housing Providers with the appropriate legal advice taken.

geep
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HB Anorak - 12 May 2015 08:58 AM

There is a difference between:

1. being treated as liable for payments which in real life you are not liable to make, and
2. apportionment of payments that two or more people are jointly liable to make

The guidance at p488 in the CPAG handbook is concerned with the former: claimants who are not liable for rent being treated as if they were (eg a non-dep while the tenant is a long-term hospital patient or prisoner). 

A joint tenant is already liable for all of the rent so there is no need to treat him/her as if s/he was.  The issue here is apportionment of the joint liability for UC purposes.

The default apportionment for private tenants under para 24 of Schedule 4 to the UC Regs is equal shares, but couples who are jointly liable with someone else get a share each.  There is discretion in subpara (5) for DWP to apportion the rent differently if the default method would be unreasonable - that might well be the case where one of the joint tenants is absent and in no position to pay.  The resulting apportioned share of the rent is compared with the claimant’s personal LHA rate and the housing element is the lesser of the two.

Para 35 of the Schedule makes similar provision for joint social tenants, with the baffling omission of the bedroom tax (sshhh!): if apportionment in equal shares would produce an unreasonable result there is discretuion to override it.


I’m dealing with a joint tenant who’s only getting 50% HB because the other joint tenant, his step-daughter, has moved out. P44 of the CPAG WBH doesn’t seem to have as much info’ for HB as p504/5 does for UC. Is there an equivalent reg’ for HB whereby the apportionment of payments between joint tenants can be split unequally - i.e. the remaining joint tenant can get HB for 100% of the rent?

Paul_Treloar_CPAG
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geep - 24 July 2015 03:34 PM

[I’m dealing with a joint tenant who’s only getting 50% HB because the other joint tenant, his step-daughter, has moved out. P44 of the CPAG WBH doesn’t seem to have as much info’ for HB as p504/5 does for UC. Is there an equivalent reg’ for HB whereby the apportionment of payments between joint tenants can be split unequally - i.e. the remaining joint tenant can get HB for 100% of the rent?

I’ve passed your comments re: WBH onto editor to look at.

I think you need reg.12B(4) HB Regs which states that where more than one person is liable to make payments in respect of a dwelling, the payments specified in reg.12(1) [rent payments] shall be apportioned for the purpose of calculating the eligible rent for each such person having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each such person.

As you now have a situation where one of those persons isn’t paying any rent, I would suggest that you have a strong argument that your client’s allocation should now be 100% of the rent.

geep
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Thanks very much , Paul. I’ll have several drinks in your honour tonight :)

geep
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Finally got through to the LA and they said that they will treat the absent joint tenant as living at the property until they receive a forwarding address for her.

The problem is that the remaining joint tenant doesn’t know where the absent joint tenant has moved to.

Any suggestions?

SarahJBatty
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The age old problem of how to evidence a negative. You can use the Recon/Appeal process quoting the above regs,  client provides signed statement of the situation including dates and as much detail as possible. If there is any other evidence such as bills changed into your client’s name, include.

Paul_Treloar_CPAG
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Just to add, that I’ve had it pointed it to me that the detailed rules on apportionment of HB in jointly liable situations can be found at p.55 of WBH 201/16, and which also confirms that the whole of the rent can be apportioned to one person even where there is joint liability, as in geep’s case.

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geep - 24 July 2015 03:34 PM

I’m dealing with a joint tenant who’s only getting 50% HB because the other joint tenant, his step-daughter, has moved out. P44 of the CPAG WBH doesn’t seem to have as much info’ for HB as p504/5 does for UC. Is there an equivalent reg’ for HB whereby the apportionment of payments between joint tenants can be split unequally - i.e. the remaining joint tenant can get HB for 100% of the rent?


It is pretty unusual for father and step daughter to be a joint tenant.

My guess is that this was done to protect the step daughter (But I don’t know).

My Guess is that this is a two bed.  (But I don’t know)

If its a two bed your client might be subject to Bedroom tax, dependent on family make up after step dtr has gone.

Your client might have a problem if this was a probationary tenancy, or homeless temp and his step dtr has moved out and the accommodation is now too large..

It feels like this is not as simple as first appears….(But I don’t know)

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Thanks for the steer to p55, Paul. The info’ I need is usually in the CPAG book, I just can’t always find it.

Martin: Yes, I don’t think I have the full picture of this case yet. After looking at previous case notes in more detail, there appeals to be quite a complicated history for this household.

I have asked the remaining joint tenant to provide a lot more detail about the circumstances of his step-daughter’s departure from the property before take it any further.

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Potentially it feels to me, you might be stumbling onto safeguarding territory and you might need to tread carefully.