Client is elderly gentleman who now resides in a care home.
Issue is a HB overpayment decision (op of more than £8000).

Basically, cl had lived all his life in the private-rented home that he and his sister had been raised in. The sister moved out. When the parents passed away the cl took over the tenancy. Some time ago the sister purchased the property from the landlord with the intention that the cl would continue to live there and pay rent to the sister. for perfectly reasonable practical reasons, the cl handled some of the legal matters in connection with the purchase and the solicitor erroneously put the cl and sister down as joint owners on the land reg docs. We have had confirmation that this was a mistake.

The client continued to live in the property and claim HB. He declared that he was related to his landlord.

The LA made the overpayment decision when the land registry entry came to light. They have decided that he was not entitled to HB because he is an owner as defined by Housing Benefit Regulations 2006, reg 2 (person entitled to dispose of the fee simple, whether or not with consent of the other owners).

1) Is a person who is named as a joint owner on the land registry entry entitled to dispose of the fee simple or is it just that a purchaser taking the property from such a person has protection as against other legal owners? Yes, I am clutching at straws – any one got any suggestions?

2) It seems reasonable to me that when one joint owner of a property lives in the property they should pay rent to the other, non-resident joint owner (it’s probably just me) but I suspect that there is a prohibition against this in the regs – I just can’t find it. This is probably because I am new/stupid/have trouble with Mondays. Can anyone put me out of my misery please?

On the face of it, the LA's decision is correct. In light of "Burton", it will be difficult to argue against. On the other hand, I'm not aware of any legal authorities in cases where the entry on the land reg resulted from a mistake. Plenty of cases where "moral" and "beneficial" ownership has been argued (none of which are relevant here), but none involving a (genuine) mistake.

Burton v New Forest DC (2004) EWCA Civ 1510
www.bailii.org/ew/cases/EWCA/Civ/2004/1510.html

As for the second (not so stupid!) point, HBR 12(2)(c) specifically provides that payments by "an owner" are not eligible for HB. A joint owner is still "an owner". As an aside, I'd be surprised if a joint owner could charge for use and occupation as the joint owner will, normally, have an automatic (and equal) right of occupancy.

If there is clear evidence that the registration of the client as a joint tenant was an error there may be scope for correction of the register. Mistakes do occur (usually thanks to mistakes by solicitors, I'm afraid) and the Land Registry can correct them. Have you asked the solicitors about this?

Yes such mistakes do occur.

Speaking from personal experience, the first home I bought became a protracted purchase because the vendor's solicitor had failed to register his ownership when he had bought the place.

I had a similar but different case where the client is the legal owner but arguably not the beneficial owner. However, the 'legal ownership' was so undeniable - due to fact and circumstances, that an appeal seemed ridiculously hopeless.

However, I was prepared to push on becuase the circumstances, when taken at face value with no assumed prior knowledge of the benefit law, were sincere and relatively unarguable.

Unfortunately, the LA concerned never got round to sending the appeal to TAS and all sorts of things happened which meant we never got to see it through. But the point is that I think it is worth arguing these cases where the principle and intention are absolutely clear. For example, in my client's case, were she to have sold the property and disposed of the assetts, which she was legally entitled to do, the other party would probably have been able to sue my client in return and she would have no defence becuase the agreement that brought ownership to her was indisputable. In the appeal, I would have argued that although the 'fee simple' was my client's to dispose of, she wouldn't have been 'entitled' to do so.

In your case, I reckon you could substitute my word 'agreement' with your word 'mistake' and you have a case on similar grounds.

DM's, never look further than skin deep - if they even get past judgementalism to skin level that is - but tribunals can often be persuaded to see the 'human' side and apply common sense and justice to the true facts and a reasonable interpretation of the law.

Also DMs know s*d all about trusts law. If ther was a clear intention that the property belonged to the sister and it was put in the brother's name there is probably a trust (resulting, if the sister provided the money), and implied, constructive or resulting trust is an exception to the rule in Section 53(1)(b) of the Law of Property Act 1925 that a trust of land must be evidenced in signed writing.....possibly my all time favourite statutory provision.

Thanks everyone.

I'm very impressed with this discussion facility - far more replies than I expected and really useful information.

I will press on and see what happens.....

It doesn't always work out that way, Blod. But I've been a member of rightsnet since day 1 (back in 1999 - well done LASA) and this facility has probably been the single most important tool in building my knowledge and keeping it up to date. Welcome!

Tony