Hi a colleague asked me a question and was not sure whether what I said was all correct so just to double check. It is Friday and my head hurts

Client was asked to leave their house as not able to pay the rent. She is a single mum with 15yo boy. She was sharing with brother who owns the property. Client went to Social Services and asked for help, she was added into the housing list and asked to rent privately and claim LHA.
Clients brother then agreed to give them some time and even gave them second bedroom, she pays £500pcm for 2 rooms / not bad for London/. Client went to Social Servies and was told that what she has done was great and asked her to apply for LHA.
on the form client did not hide the fact that landlord was close relative and ofcourse LA refused to pay LHA.

Told colleague that the only way to argue about it is that she was adviced and told she will still get the LHA from member of staff. Other then that LA are wright as can not pay to close relative e.g brother, partner etc.

What can they put in the appeal, she does not fully speak or understand English and was adviced by Housing to stay at her brother's and claim LHA.

I was thinking that well they have made mistake but would they agree to pay in special circ.
Also her brother have now told her to move out as she can not afford to pay the rent.

Really bad situation feel for that client.

Thank you to all of you who are able to help.

Regards,
Antonina

“Other then that LA are wright as can not pay to close relative e.g brother, partner etc.”

There is more to it than that. The key is whether the claimant and the close relative share the same dwelling. Dwelling is not the same as property. It might be that they do but that should not be assumed. The key is do they live at arms length from each other. See R (Painter) v Carmarthenshire CC HBRB (2002) and have a look at the commentary to Reg 9(1)(b) of the HB Regs.

hmmmm they are on different floors,would that actually help ?

Hope it does thanks for the quick reply, will try to look at it over the weekend.

I think the advice given in Nevip’s post is your best chance.

If your client does reside with her brother then the Council cannot pay LHA, no matter what advice might have been given previously.

There *may* be a case for compensation through the Ombudsman but this will not be straightforward.

Was it Social Services or Housing, or both that advised your client? Did they advise her to claim LHA as you say in your post or did they tell her that she would be entitled to LHA?

Do the Council accept that your client was misadvised by them, or do they dispute it?

If they dispute it does your client have any witnesses, had the Council put their advice in writing, or does your client have any other evidence?

All these points could be important.

Hi as fars I know they have not send anything i writting onlyther dcision will look at the letter and will let you know I think that client has witness, will double check next week.

Thank you

Hi Nevip,
I could not find R (Painter) v Carmarthenshire CC HBRB (2002) but read the Reg9 thanks for that.
I am now even more confused was trying to find the difference between dweling and property. Can you please clarify little bit.

Thanks

Loosely, for the purposes of this discussion, I use the word “property” to apply to the building/premises as a whole and the word “dwelling” to apply to the person’s living space, whether that comprises the whole or just part of the building/premises.

Being on different floors would not, in itself, be enough. There have been several cases where arguments have been deployed to the effect that simply using one part of a property means a separate "dwelling" exists. In most cases, Cmmrs & UT Judges have strongly found against the clmt. For example:

R(H) 5/06
CH/3656/2004
CH/0777/2007
CH/2728/2008
CH/0542/2006

There are a couple that ended up being remitted for rehearings, such as CH/3217/2005. But, give or take, the effect of the CDs/UTDs so far is that a "common sense" approach has been followed with regard to determining "dwelling" in the context of close relative cases.

Forgot: Painter / Murphy is on "Bailii":

www.bailii.org/ew/cases/EWHC/Admin/2001/308.html

It does seem that I have hit a wall I was thinking then to appeal on 2 grounds :
1. Housing advice was wrong- claimant was given the form even though they knew the claim would not be successful. On the other hand there is a bit more into that;
2. Will argue that the rent was not avaoidable and was not made for the purpose of HB claim;

''These regulations aim to simplify and clarify long standing Housing Benefit provisions against abuse. Housing Benefit is generally available to people on low incomes who have a genuine rent liability. However, some people and some organisations occasionally set out to exploit the social security system, and construct rent liabilities whose primary purpose seems to be to bring tenants within Housing Benefit. Successive government have sought to deny claimants access to Housing Benefit in these circumstances and the current regulation 7(1) excludes from benefit people whose liabilities have been `created to take advantage of the Housing Benefit scheme'. However, local authorities have found these regulations increasingly difficult to apply and interpret.''

Thank you all for your support. Will keep you posted

You won't like my observations, but neither of the grounds in "1" & "2" offer any basis for success in law.

There *may* have grounds for claiming compensation (outside the HB scheme), but even then the LA may well argue there is no financial loss as there was never going to be any entitlement.