Can anyone offer any advice about what constitues a valid tenacy agreement for HB purposes.

I have a client whith severe learning difficulities who cannot sign his name and it is doubtful if he has very much understanding of what a tenancy is. His landlord nevertheless felt able to give him a tenancy agreement and charge him rent. As I understand it my client (with the help of a relative) approached the local authority and asked about Housing Benefit. As I understand it they were told that as he could not sign the tenancy agreement he would not be able to get HB so they did not complete the form - this has lead to a large amount of arrears which the standard backpayment period would not cover.

As far as I am aware a tenancy agreement (in the general legal sense) need not be in writing as long as there is an agreement betwen the parties about what is paid and what is provided in return, a licence to occupy a property in return for payment. Licences are as far as I know perfectly legal for HB claims.

There is no problem with the signature on the HB claim itself, he has an appointee who can do that, but I am certain that appointeeship does not enable the appointee to sign a tenancy agreement on his behalf. As far as i know there is no guardianship order in place that would have allowed someone else to sign the tenancy.

Were the local authority right to advise him as they did?

Hi, would say they were not correct, all that is required is 1) proof of occupancy, 2) proof that he has paid rent in the past, or a letter from the landlord stating that he is living there and liable for the rent giving details of what the rent is.

There is no legal requirement for a written tenancy agreement, verbal agreement are OK as long as there is evidence that the verbal agreement is being carried out, ie. he has paid rent in the past.

Does he have any reciepts of rent paid ?

Thanks for your reply, by a coincidence the client's representative rang with some more info in the last few minutes. It appears that it wasn't the tenancy agreement the LA didn't like but the fact that the HB claim couldn't be signed - the appointee seems not to have realised that they could sign it on behalf of the client despite the fact that they have apparently signed numerous DWP claims on their behalf over the years.

The information was nevertheless very useful and I will take note in case I need it in the future

Thanks again.


Pete,

No they were not. There is no need for a written agreement between the parties either in housing law for the purpose of whether a tenancy exists or not or for HB where, among other things, legal liability needs to be evidenced. A simple letter signed by the landlord stating that he has let said property to said tenant for said amount of rent will suffice, or production of a rent book or, possibly, bank statements from both parties showing regular sums leaving one account and going into the other or some other form of evidence which points to an agreement.

In housing law a tenancy depends on the facts and not on the terms of any written agreement (see Street v Mountford HL 1985). If it is a fact that a person has exclusive possession for a term certain and pays rent then he will have a tenancy and not a licence and any document stating otherwise will be a sham agreement. This is important in two major respects. First, it gives security of tenure and second it gives the tenant the protection of The Landlord and Tenant Act 1985 to enforce the landlord’s repairing obligations.

Street v Mountford is indeed about how to decide whether the occupation constitutes a tenancy or a licence. That in itself is not relevant to whether there is a legal liability to pay rent and thus a right to HB, as that does not depend on what you call the agreement but only its validity and whether it is legally binding. For housing law purposes of course the distinction is important.

There is no express provision that a claim must be signed.

As for the ability of the claimant to enter into an agreement see the commentary on HB Reg 8 in Findlay, and in particular the references to R(IS)17/94, CH/663/2003 and CH/2121/2006.