Can anyone clarify please.

If a minor suceeds to a secure tenancy (in equity not in law), do they become eligible to pay rent (or treated as eligible) for the purposes of an HB claim (i.e. can they claim in their own right), or does the trustee (i.e. the tenant in law) need to claim on their behalf (as the person treated as liable to pay rent). If the latter, is the trustee assessed (in terms of income/capital) in the normal way?

thanks

Quick response...

There is no minimum age for claiming HB. HBR 8 provides for circumstances where a person can be treated as liable instead of the person actually liable. But, HBR 9 contains a provision relating to beneficiaries of trusts - the arrangement must not be in order to take advantage of the HB scheme.

Unless the claimant has a legally appointed Guardian, or there is someone with Power of Attorney, or someone is a formal appointee (see HBR 82 for these situations), any claim must be made by the claimant.

This is discussed in Findlay (p259 21st ed), and there is little doubt that a minor who succeeds to a statutory tenancy is eligble for HB on the basis that the payments are in consequence of use and occupation of the dwelling until the tenancy of the land passes to him when he reaches 18.

Findlay cites Royal Borough of Kingston upon Thames v Prince (1998) in support of the argument. Mrs Justice Hale as she then was wrote in that case

"However, there is no doubt that minors are capable of being persons in housing law. A minor can hold an equitable tenancy of any property, including a council house. Concern was expressed to the Law Commission during their consultations on minors' contracts about the social problems which could result if landlords, including local authorities, were unable to let property to minors who needed it. In their Report on Minors' Contracts (Law Com No 124, 1984; completed before I become a Law Commissioner) the Commission addressed this concern:

'5.14 . . . we are satisfied that the fears of those who have raised it are based on a misunderstanding of the existing law which ought to be removed.

5.15 The first point we wish to emphasise is that a lease is one of the four classes of contract, referred to in our Working Paper, which are binding on a minor unless and until repudiated by him. It is not a contract unenforceable against him and the authorities show that a minor who rents land is liable to pay the rent accruing during the currency of the tenancy, up to the time he repudiates it - if he does. We think our commentators' difficulty arises from the statutory provisions preventing minors from acquiring a legal estate in land, which a normal letting (even a weekly tenancy created orally) constitutes. The relevant provisions are section 19(1) of the Law of Property Act 1925 and section 27(1) of the Settled Land Act 1925, the combined effect of which is to make a conveyance of a legal estate in land to a minor operate as an agreement to execute a settlement in his favour, with the vendor/lessor in the meantime holding the land in trust for the minor. As a trustee he holds the land for the minor on the terms and conditions of the original purported grant; this is not inconsistent with the minor's obligations to pay the rent and observe the conditions of the "lease".
5.16 Moreover, the statutory provisions do not restrict a minor's ability to acquire an equitable interest in land: there is nothing to prevent a would-be lessor granting an equitable tenancy to a minor. The desired result can be achieved by the lessor's entering into a contract with the minor to grant him a lease on the agreed terms, followed by the minor's entry into possession of the property let. As far as the protection under the Rent Act is concerned, we think the position is correctly stated in Megarry's The Rent Acts <10th ed (1967) p 179> namely that it is immaterial whether the relevant tenancy is legal or equitable. . . .'

A minor clearly can succeed to the actual tenancy held by a deceased secure tenant. Sections 89 and 90 of the 1985 Act contemplate that in some cases the tenancy itself will devolve along with the deceased tenant's estate. Thus if the tenancy is a term certain, the effect of section 90 (see above) is that it goes into the deceased's estate and vests temporarily either in the public trustee (if he died intestate) or in his personal representatives (if he died testate). It will then descend in accordance either with the rules of distribution on intestacy or with the terms of the will. If the beneficiary is not qualified to succeed the tenant then there will be no security of tenure. If on the other hand the beneficiary is qualified to succeed then the tenancy will remain secure and (by virtue of section 86(1)) will become a periodic secure tenancy when the term certain ends.

thank-you both

I'd read Prince, but I don't know my way round the HB Regs very well, so the Findlay commentary is very useful. cheers.