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Forum Home  →  Discussion  →  Housing costs  →  Thread

UC housing costs following death of tenant

Paul_Treloar_AgeUK
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We’ve got a case where the client’s husband died in November 2021, with the tenancy for their council flat being in his name only. It appears that the wife should have no problem with shifting the tenancy to her name under the succession rules but despite repeated contacts, this hasn’t been actioned as yet.

My query is in relation to her UC award which is currently paid without housing costs included. It looks to me like para.2 of Sch.2 of the UC Regs allows her to be treated as liable:

Failure to pay by the person who is liable
2.—(1) A claimant is to be treated as liable to make payments where all of the conditions specified in sub-paragraph (2) are met.

(2) These are the conditions—

(a)the person who is liable to make the payments is not doing so;
(b)the claimant has to make the payments in order to continue occupation of the accommodation;
(c)the claimant’s circumstances are such that it would be unreasonable to expect them to make other arrangements;
(d)it is otherwise reasonable in all the circumstances to treat the claimant as liable to make the payments.

First problem I foresee is DWP refusing to pay housing costs due to para.2(2)(b) not being satisfied in fact at this point in time - because of the council dragging their heels on the succession, she doesn’t need to make the payments to continue to occupy the accommodation. However, given that if/when the succession does take place and she is made the tenant, I imagine she would be held liable for the rent due since November 2021 so it’s strongly arguable this should be taken as applying to her now.

Second, how to get this backdated to November 2021 when her husband died? I’m thinking its simply a late any grounds revisions request with reasons for lateness related to bereavement and the difficulties getting help with dealing with everything, as well as the succession delays from the council.

Does that make sense to people who have had to advise on similar cases and am I missing anything obvious here? Many thanks as always.

Timothy Seaside
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The legal situation is that when he died either she succeeded to the tenancy, or the tenancy continued as sole tenancy in his estate. In the latter case, it will carry on until somebody serves NTQ.

I think the situation is that UC should be treating her as liable under Sch 2, as you say. If she is able to succeed to her husband’s tenancy then that will retrospectively take effect from the death of her husband, and at that point she becomes factually liable back to that date (instead of just deemed liable) but for the purposes of UC it won’t result in any change in her historic entitlement.

I don’t think UC could realistically argue that she doesn’t need to pay - unless the council have specifically given her some sort of dispensation (which would be bizarre).

I think the question of whether you go down the MR route or request an extension of time to notify the change of circumstances (Reg 36 D&A Regs) depends on whether UC knew about the circumstances before the end of the AP in which he died, or not.

Perhaps the council should be doing more to help her (assuming they are aware) - to communicate the situation to UC and to work out whether she has succeeded to the tenancy. It’s in their interests, and it’s what the Pre-Action Protocol says they should be doing.

Paul_Treloar_AgeUK
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Thanks Timothy, that’s really helpful.

Ruth Knox
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I wonder why she hasn’t had confirmation of a “use and occupation”  ie licensed tenancy from the Council even if they are slow in dealing with the succession tenancy?

Paul_Treloar_AgeUK
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Don’t know Ruth, all we know is that she’s not heard anything from the council to date, despite chasing them.

Pete at CAB
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Paul_Treloar_AgeUK - 06 April 2022 09:12 AM

Don’t know Ruth, all we know is that she’s not heard anything from the council to date, despite chasing them.

I had a similar case (i may even have posted it on here, I cant remember).Regardless of the actions re the tenancy it seemed that the problem lay in the way the landlord responded to questions on the Landlord Portal.  A check was done via the portal as to if the cl was the tenant, the landlord replied ‘no’ (the actual tenant having passed away)and UC could not pay Housing Costs. As I understand it there should have been info re ‘use and occupation’ but the landlord did not seem to have added this to the portal

Paul_Treloar_AgeUK
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Thanks Pete, that does sound like a possibility.

The other problem we’re wondering might lie at the root of this is that she made her UC claim after her husband died and we don’t know whether she told them about the housing costs at that time (as she wasn’t being chased for any rent).

That could add layers of complication potentially but we’ve replied with some advice for now so waiting to see what happens next.

Timothy Seaside
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Pete at CAB - 07 April 2022 02:19 PM

I had a similar case (i may even have posted it on here, I cant remember).Regardless of the actions re the tenancy it seemed that the problem lay in the way the landlord responded to questions on the Landlord Portal.  A check was done via the portal as to if the cl was the tenant, the landlord replied ‘no’ (the actual tenant having passed away)and UC could not pay Housing Costs. As I understand it there should have been info re ‘use and occupation’ but the landlord did not seem to have added this to the portal

On the landlord portal, when you click “no” to the question “is this person your tenant and liable for rent at this address?”, a text box comes up and you are supposed to explain why you have said no (this is actually how the bodged absent joint tenant process works). It then asks if you are charging them e.g. use and occupation.

If a secure tenant dies then their tenancy continues until somebody takes action to end it. As long as the tenancy continues the landlord doesn’t have any right to give somebody “use and occupation” - that can only happen once the tenancy has been determined. So in the situation where nobody has ended the tenancy, and the landlord has failed to confirm succession, the landlord should be ticking “no” and then explaining that Sch 2 applies - the tenant has died so they can’t be expected to pay, but somebody needs to.

But it does sound as though the landlord has gone a bit AWOL here.

Timothy Seaside
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Paul_Treloar_AgeUK - 07 April 2022 03:40 PM

The other problem we’re wondering might lie at the root of this is that she made her UC claim after her husband died and we don’t know whether she told them about the housing costs at that time (as she wasn’t being chased for any rent).

If she didn’t tell them, then she needs to make sure she does ASAP, and then she can ask them to apply the change of circs from when it happened (make sure she follows the requirements of Reg 36). She has a good reason if the landlord didn’t tell her they were expecting her to pay or if the landlord still hasn’t confirmed her succession.

If she did tell them, then I’d say it’s MR - arguing they should be treating her as liable.

Either way, it really sounds like the landlord ought to be doing more to help.

Paul_Treloar_AgeUK
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Timothy Seaside - 08 April 2022 10:39 AM

If she didn’t tell them, then she needs to make sure she does ASAP, and then she can ask them to apply the change of circs from when it happened (make sure she follows the requirements of Reg 36). She has a good reason if the landlord didn’t tell her they were expecting her to pay or if the landlord still hasn’t confirmed her succession.

If she did tell them, then I’d say it’s MR - arguing they should be treating her as liable.

Either way, it really sounds like the landlord ought to be doing more to help.

Thanks Timothy - we’ve certainly advised the adviser to chase the LA in question as they don’t really seem to be doing an awful lot to help at the moment.