Having a little difficulty getting my head around this one - well it is Friday afternoon.

We have several tenants who have been moved out into temporary accommodation in order to repair flood damage. All of these bar one are continued to be paid HB via reg 7(4). (the temporary accomodarion is being paid by insurance).

However the LA is refusing to pay one claim. In this one case it appears that the tenant insisted on finding their own accomodation (still paid by insurance).

The LA is saying that since she has signed a shorthold tenancy for the temporary acomodation (irrespective of whether she actally pays the rent or not), she is liable for rent and reg 7(4) covers liability for one but not both properties.

In effect the LA is saying that if there are 2 liabilities HB is not payable on either.

I have a memory that if there are 2 liabilities then the LA has to accept liability for the home "normally occupied".

Can someone point to any decisions on this issue?

I can't immediately locate any CDs/UTDs etc on the specific issue raised here.

However, this *appears* to be one of those situations where case law et al isn't really needed. HBR 7(4) plainly allows for HB on one of the properties. On the facts of that one case, the LA *could* decide the temp address is the "normal home" in this case. But, HB is certainly payable on one....

The only potential glitch is the wording of HBR 7(4). It seems to be based on the premise of there only being one liability. Is the LA arguing that as there are two liabilities, HBR 7(4) cannot apply at all; not even on one home?

Yes - The LA's reasons include:
".....therefore Reg 7(4) does not apply as Ms________ has a liability to pay rent in respect of both her normal home and the temporary accomodation"

- even though HB on the temporary accomodation is not being claimed.

if that's right, surely the LA should NOT be paying for the other displaced tenants? and if they are paying for them, they are irrational in not paying for her (wednesbury sense) i would have thought...

I could not agree more and I'm penning the appeal now.

Stull interested in any decisions on the issue of how multiple mliabilities should be interpreted.

Mon 21-Sep-09 08:41 AM by Kevin D

IF that is the LA's only reason, it is obviously flawed. Even though the wording of HBR 7(4) is abysmally structured (what's new...), I can't see a UT Judge arriving at the same conclusion - Claire's point is blindingly obvious (er, I mean that as a dig to the LA - NOT Claire!).

Even if the LA decide the "temporary" address is in fact the NORMAL home (due to the differing arrangements), then HB is still payable on that normal home.

So, appeal away....

Mon 21-Sep-09 11:08 AM by jmembery

I am afraid that I have to agree with the LA concerned that Reg 7(4) does not bite where the tenant has a liability on both the temporary home and the normally occupied home.

The claimant can get benefit on one, but not both, properties under this reg. I assume they could get benefit in respect of the temporary home.

In all the other cases it looks like the LA have decided that they have no liability on the temporary home so Reg 7(4) does bite.

I hate to disagree with Kevin but I think that any UT judge will have no option but to read the words (but not both) as limiting the effect of 7(4).

Yes J membury, I know the commentry to this reg does say that where there is two liabilities, this reg cannot be used but the LA is still making a perverse interpretation.

As you yourself say "the claimant can get benefit on one, but not both....".

In this case the LA are saying that if there are 2 Liabilities (even though HB only claimed on one) then NEITHER propety is eligible for benefit.

Its clear and fairly obvious to say One - but not both. But it is quite different to say this means neither of them.

Yes, I don't think we disagree that HB should be paid and the LA is wrong not to pay one.

My point was really only a technical one (but possibly important in any appeal) Reg 7(4) is not appropriate. Instead the LA should pay under 7(1) classing the temporary accommodation as the dwelling normally occupied.

Surely the question is, why is there liability to pay rent on flood damaged property ? When this property is not fit to live in - hence the essential repairs.

The landord should not be charging rent for this property until it is fit for the tenant to move back in ? The landord should surely cover this cost themselves.

i go back to what i said. if the insurer is paying for the temporary accommodation in all cases, and the tenant remains liable for the original tenancy as well, it is perverse for the LA to pay some of the tenants but not all. all should be dealt with the same way. i can't see how a distinction can sensible be made depending on who FOUND the temporary accommodation, which is what appears to be the case on the facts given by OP.

I think darlocab is seeing unfairness where there isn't any. It is common practice amongst RSL's that when a property is unfit to live in and needs essential repairs, the landlord will meet full cost of temporary accommodation (and usually out of pocket expenses as well). The original (normal home) tenancy continues including the rent liability. Cannot see how the tenant is disadvantaged by this arrangement.

Not seeing unfairness but trying to see clarity.

The tenant found and signed for her own alternative property and is therefore liable for rent on both, although the insurance is actualy paying the rent on the alternative property. Is this the insurance of the landord or the tenant ? In this case the client has not lost out.

If the landlords insurance, should'nt this cover the cost of temp property and lost revenue of the original as not fit to live in !

In all the other case no tenancy was signed for by the tenants for the alternative accommodation, so HB is paid on the original property.

Question - who signed for the tenancy's of the other tenants or are these the property of the landlord and therefore no tenancy signed.

Why could the landord not have taken the temporary tenancy in their name instead, thus circumventing the problem.

Unfairness to the tenant/client is having rent arrears on the orignal property when the causing problem was not theirs.

If the property is not fit to live in how can there be liability for rent - this should be suspended - dont think any arrears could be pursued in county court on this basis.

Common practice or not why should RSL's use HB to aleviate their loss of rent when the property is not fit to live in !

Sorry but Dont mean to sound unfair but had this problem with LHT few years ago as their auditors do not like seeing gaps in rental income and was common practice to make clients sign tenancy before the property was fit to live in and want HB to pay the rent for up to 10 weeks - the rent arrears were finaly cleared by the landord.

Darlocab has raised a lot of interesting questions. I am not very confident on the aspects of housing law, contract law and insurance law except to comment that they sound very tortuous.

I am simply a benefit bod and my expertise (such as it is) is confinrd to benefits.

However I will make a couple of common sense comments.

If the DWP did not see a reason to "use HB to aleviate the rent when the property is not fit to live in" then they would not have included reg 7(4) in the regs.

I can see a number of practical advantages to all parties for the original tenancy to continue throughout a period of repairs. It seems quite reasonable to me (and as far as I know to the tenants concerned) to continue paying rent provided they get suitable temporary accomodation and are not left out of pocket. Have not met one yet who wants to make a profit on it.