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Top Housing Benefit & Council Tax Benefit topic #9279

Subject: "Non-Commercial Tenancy- case law..." First topic | Last topic
murphs
                              

Senior Financial Inclusion Officer, Rethink. London
Member since
09th Sep 2009

Non-Commercial Tenancy- case law...
Tue 18-May-10 03:57 PM

Hello Everyone,

I am trying to help a lady who is the sister of someone with severe mental health problems. She owns a property (which used to be her mother's) and her brother lives in it. She can't afford to maintain payments to her property as well as the upkeep/maintenance of the property her brother lives in so she set up a tenancy agreement and her brother applied for housing benefit.

She would like him to stay in that property as she is able to ensure he is adequately housed and the disruption if he moved would have further affect on his mental health.

I advised her that the council may argue that the tenancy isn't commercial because they are related, but provided her with details of CH/296/2004

However the council have come back and are now asking questions such as:
-what are they doing to collect the rent arrears that are building up
- would she evict her brother if he wasn't awarded HB and unable to pay rent
-If her brother wasn't living there would she rent out the property
-If so, how would she advertise it

They haven't mentioned the fact they are related so I feel CH/296/2004 isn't going to help at his stage. Does anyone know of any other case law that could be useful in this situation? Or how she should respond to the questions. She says she wouldn't want to evict her brother because of his mental health problems.

I've tried to find R (Mackay) v Barking & Dagenahm (2001), R v Sutton LBC ex parte Keegan (1992) and R v Poole BC ex parte Ross (1995) but I can only find them referred to in more recent cases so I'm not sure what the full details are and if they will help in this case.......

if any one has any ideas or knows where I can find these cases in full (if they'll help) I'd be very grateful

Cheers

  

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Replies to this topic
RE: Non-Commercial Tenancy- case law..., John Birks, 19th May 2010, #1
RE: Non-Commercial Tenancy- case law..., Kevin D, 19th May 2010, #2
RE: Non-Commercial Tenancy- case law..., murphs, 20th May 2010, #3
      RE: Non-Commercial Tenancy- case law..., Kevin D, 20th May 2010, #4

John Birks
                              

Welfare Rights Officer, Stockport Advice
Member since
02nd Jun 2004

RE: Non-Commercial Tenancy- case law...
Wed 19-May-10 10:33 AM

"Or how she should respond to the questions"

Honestly?

  

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Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: Non-Commercial Tenancy- case law...
Wed 19-May-10 11:34 AM

I concur with John's suggestion.

The case law cited is almost certainly relevant; however, it is also selective. There is a huge range of case law on liability / non-commercial / taking advantage and it really needs to be considered in the round.

The questions posed by the LA must be answered honestly. Any other approach potentially leaves the clmt and/or the LL open to fraud related allegations.

One question that crosses my mind is this: does the would-be clmt have a right to occupy the property irrespective of any rental charge? If so, it *may* be arguable that no rent charge can be enforced.

As for the case law, "Ross" is on this site:
www.rightsnet.org.uk/pdfs/R_v_Poole_BC_ex_p_Ross.doc

I have forwarded a transcript of "Keegan" to Rightsnet and, hopefully, there won't be any copyright issues that prevent it from being made available.

  

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murphs
                              

Senior Financial Inclusion Officer, Rethink. London
Member since
09th Sep 2009

RE: Non-Commercial Tenancy- case law...
Thu 20-May-10 08:48 AM

Thank you for your help.

Apologies I didn't make myself clear- of course she is going to answer honestly but I was wondering how much information she had to give at this stage in terms of mentioning case law etc.

I'm still trying to get my head round this (I'm not a welfare benefits specialist by any means, hence my big appreciation of this forum), she is being asked these questions as a landlady in relation to a tenants claim so the answers should just be straight forward, however as she is his sister she is anxious about trying to help him...........

My opionion is for her to just answer the questions honestly, let the LA make their decision and if they decide not to award HB she would then be able to see the reasons they have given for the refusal and help her brother with any appeal from there- would you agree?

In terms of having a right to occupy- do you mean in relation to the property being passed to him through his mother's will?

Thanks again

  

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Kevin D
                              

Freelance HB & CTB Consultant/Trainer, Hertfordshire
Member since
20th Jan 2004

RE: Non-Commercial Tenancy- case law...
Thu 20-May-10 09:11 AM

Right to occupy

The property being passed on was one line of thought, but it is possible that although ownership was passed directly and solely to the daughter (would-be-LL) it might also have been with a condition that the brother would be entitled to occupy it.

The "right to occupy" was at issue in CH/1578/2006. Because of the facts, that case can probably be easily distinguished from the case mentioned above. However, it does confirm that principle that if a person has the right to occupy, no rent liability could be enforced (unless provided for in the terms).

CH/1578/2006: http://www.rightsnet.org.uk/pdfs/CH_1578_2006.doc


As for the questions posed by the LA, my advice is to answer them straightforwardly BUT, also make it clear why rent is now being charged when it wasn't previously - any supporting information / evidence in that respect would be helpful.

  

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