I have a client who is appealing a decision to refuse her HB on the grounds that (a) her landlord is the father of her children and (b) becuase my client and her ex / landlord lived together in the property before they split up.

She has no share in the property.

The council are quoting regulation 9 (1)(d) in respect of the first reason and 9(1)(c)(i) in respect of the second reason.

Is this reading of the regulations by the council correct? In light of the fact that the ex partner will throw my client and her kids out if she can't pay the rent (HB is the only option, she's on IS) is there any element of discretion or other argument I can pursue at the tribunal.

Thanks

Dan

Dan,

In this case, the Council are entirely correct. The provision is absolute and the LA has no discretion.

HBR 9(1)(c) was at issue in LANGLEY v Bradford MDC & SoS (2004) EWCA Civ 1343.

Langley is also reported as R(H) 06/05 (aka CH/1205/2003).


HBR 9(1)(d) was at issue in:
CH/4003/2004 &
TUCKER v SoS for Soc Sec (2001) EWHC Admin 260 QBD & .

Tucker went to the Court of Appeal and is cited as:
TUCKER v SoS for Soc Sec (2001) EWCA Civ 1646

The clmts lost in all cases.

Is this still the case?

My client was married for many years, then separated and lived in the same house, then husband moved out; he had other relationships, then they divorced. Court ordered she could stay in the joint home indefinitely. She had to sell him her share to pay her debts and he rented out property to her. When she became too sick to work, she claimed H.B and was refused under reg 9 (1) (c) (i).

Appeal soon to be heard. I am considering a Human Rights Act challenge under art 14. I believe the reg. affects mainly women, adversely.

Any thoughts?

Wed 04-Nov-09 01:33 PM by Kevin D

I have just dealt with an appeal (for a LA) on HBR 9(1)(c)(i). The hearing lasted less than 15 minutes and was found for the LA.

In my view, any HRA challenge will be futile - this was considered in the "Tucker" case cited above and, more pertinently, Painter and Murphy (link below).

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

In short, the provisions within HBR 9 are considered to be "proportionate". Therefore, no breach of the HRA.

Just to add, even if you are "successful" at FtT, it is difficult to imagine the LA not appealing to the UT.

doom and gloom...Thanks for your reply though.

they have to change the regulation, just because you are renting from relative does not mean that you are not liable of paying rent. You could be served notice if you dont keep up with the payments therefore you may become homeless.

Dont know whether we can all do something about that

The regulation won't be changed. At least not in favour of claimants.

The reasoning behind the provisions for HBR 9 was set out and considered in the Painter/Murphy case. HBR 9 is specifically designed to stop HB in specified circumstances. Its effect is entirely intentional. It isn't one of those situations where the effect is an unexpected by-product of loosely drawn legislation.

Professionally, HBR 9 still causes too many problems - there is too much room for inconsistency. On a personal level (strictly distinguished from the professional approach), I would actually like to see it tightened further. I stress my personal opinion does not affect the approach I take in my day-to-day work.

One of the reasons the regs exclude liability to ex partners where there are mutual children involved is because there is a duty (legal, I'm not sure, moral, definately) for an absent parent to support their children. When I got divorced my solicitor was outraged to discover that my ex wasn't paying the rent on the property his children were living in, and when my daughter went to live with her dad I paid him maintenance for her.

If the HB regs are drafted on the basis of that moral duty- then what is the purpose of CSA/CMEC. I understood all financial issues that the excluded parent is responsible for in relation to their children well progressed by individual agreement or CSA/CMEC? What therefore happens in Shared Residence situations where a child has two homes. Is the one parent expected to support both homes? This would surely result in the child living with the higher earner thus being denied a proper relationship with both parents?

Well as we all know the Benefit regs dont always reflect how real life actually works. Its clear from other parts of the HB regs (room requirements for example) that those who wrote these regs never anticipated that parents who dont live together would want to share the care of their children.

There is another thread on rightsnet suggesting that there is a different construction of the relevant test for LHA re: occupiers that may mean there is potential for challenge on the room requirements issue.

Its seems truly amazing that those drafting the legislation for HB/LHA/TCs/CB/CSA etc etc never anticipated that a child may have residence in two homes, especially when you consider that the relevant provisions for this possibility in legal terms were made in the 1989 childrens act that talked about situations where residence orders were made in 'favour' of more than 1 person. I wonder if those drafting the legislation know that the Berlin wall has come down...