HB on two homes

Hello, i have an elderly client who moved from an LA two bed flat, which was in his late partners name, to a one bed sheltered housing flat. When he went to sign the tenancy on the new place he was given info on service charges, etc but nothing was said to him about handing the keys to the old flat in; he had two sets of keys, one he gave to the removal comapny that the LA use so that they could finish clearing out the old flat for him and the other set he did not give a second thought to.
The client was first alerted to there being a problem when someone who works for the LA contacted him to ask about the keys to old flat and to advise there was a problem with his HB because he had not handed them in. As a result of him not handing the keys to the old flat in as soon as he moved the LA are saying that as he did not request HB on two homes when he changed address and he would only have been entitled if his dual rent liability had been unavoidable and that his rent liability on the old property was avoidable for the period involved (which was two weeks) he will therefore be liable to pay the rent on the old property for the two weeks involved; as his only income is GPC and he has no savings this will be hard for him.
I have written and explained that despite meeting with council officer to sign new tenancy he was not advised to hand in the old keys and that as an elderly gentleman who has not moved for many years he did not understand the importance of handing in his keys but to no avail so we must appeal if we disagree.
I have read up on HB for two homes and essentially i think that any argument i can make is going to be based around the fact that he was not advised by LA about handing keys in? Before appealing i wondered if anyone had any experience of a case like this and if any HB experts out there think there is any chance of success at all? 
Thanking you in advance!

Oh yes sorry-very important fact that i got wrong! The flat had been in partners name but he succeded the tenancy following her death so the tenancy was in his name when he moved from old address

I think you are getting sidetracked on the “two homes” rules. In my experience LAs would not accept 2 homes applies in the circumstances you describe.

The 2 homes rules are intended to apply when a tenant moves from one landlord to another. In your case he is simply transferring from one property to another with the same landlord.

The error in thinking is that a landlord can rent two properties to one tenant for the same period. If you think about it a tenancy agreement allows you to occupy a dwelling in exchange for the rent. It is impossible to occupy more than one at any one time.

Notice period on old tenancy is irrelevant - in reality the landlord is substituting one tenancy agreement for another. It is a change of circumstances and there is no room for overlapping rent liability.

It is possible of course that charges can be levied for “late” return of keys - but this would not be rent and cannot give rise to HB. Also unless the tenant knew and accepted these charges in advance it is doubtful that the LA can recover them.

He did pass keys on to an agent of the LA.

Hi Tony, Derek & Gareth, thank you for your replies. I will write to council to complain that he was not advised properly and to ask them to waive rent on old property (worth a try but not too hopeful of them agreeing to this!) I have not put in an appeal as yet as i am not still not sure we would have high chance of success? I did phone one of the welfare rights advice lines to discuss case and was advised that it would be about the interpretation of reasonable and that it would be reasonable to expect client to know to hand in keys and so really very little chance of a successful appeal.
Following this discovery of the client not having handed the keys in HB contacted me as they had my details from previous work i had done for client and they asked me to put in writing the actual date he vacated old property and the reasons he did not hand keys in which i did, obviously i put in letter that he is elderly was not advised about keys, despite attending council office to sign up for new flat.
I received a reply from HB stating that he was entitled to HB on old address up to 12/06/11 and in respect of new address with effect from 13/06/11. It states he did not request HB on two homes when he changed address and that he would only have been entitled to HB in respect of old address for period involved if dual rent liability had been unavoidable; it goes on to say that unfortunately as he did not return keys to (old address) until 24/06/11 therefore his tenancy did not end till 26/06/11 and that his rent liability was avoidable so he is not entitled to HB on two homes. If he was your client would you think it a case worth appealing?

My opinion - for what it is worth -  is that you will not get anywhere with an HB appeal.

However you should have a better case in challenging the termination date of the old tenancy. There is an argument that it must have ended on the day before the new tenancy started. As I said before, no one can occupy two properties at the same time so when the landlord signed a new tenancy, this superseded the old tenancy. It is a legal nonsense for a landlord to to try and enforce 2 tenancies for the same period.

What has happened is that the administrative procedures have taken precedence over common sense and the LA is trying to terminate the tenancy when they got the keys back. This might be OK when moving to a new landlord but for the reasons I have already stated is impractical when moving from one landlord property to another.

I would recommend challenging how the old tenancy could run on after the new one had commenced..

Hi Derek,
Administrative procedures taken precedence over common sense..never!!
I have had two people advise now that a HB appeal will not get anywhere so i won’t pursue that. I will definitely take your advice about challenging the termination date of the old tenancy, that is really good advice so fingers crossed we may get somewhere with that approach; thank you very much indeed for all your help,

I dont agree that an appeal would not succeed.

The only question is whether or not the dual liability can reasonably be avoided.  There is no express provision in the Regulations which demands that the liability is to two different landlords. In my view the simple fact is that if there is a liability that can be enforced in law and the claimant cannot avoid the liability HB will have to meet it.

If both these tenancies are LA tenancies then I cannot see how they can have it both ways, ie to enforce the laibility and then determine that HB cannot be paid.

The focus here is whether or not the claimant could reasonably avoid the liability, not whether or not the landlord could reasonably not enforce it

With respect to Stainsby - I do not thoink it is so simple for an LA landlord to enforce 2 tenancies for the same period.

At base a tenancy contract is an agreement to pay money (rent) in exchange for the right to occupy the dwelling. If the LA contracts for someone to occupy a dwelling in full knowledge that the tenant is unable to occupy it (because they are occupying another dwelling), then there is an argument that the contract is to that extent frustrated and I do not think it would be a simple matter to enforce it.

Irrespective of the contract law I still believe the reg 7(8)(d) two homes claim is still without merit since it is also difficult to see how dual liability could be reasonably avoided when the LA landlord is instrumental in causing it.

Reg 7(6)(d) provides

in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period “not exceeding 4 benefit weeksfrom the date on which he moved if he could not reasonably have avoided liability in respect of two dwellings; “

The Regulation expressly provides that question is whether or not the claimant ( and nobody else) could reasonably have avoided the liability “if he could not reasonably have avoided…”.

Regulation 7(6)(d) is a deeming provsion whereby the LA can say that black is white.

If the claimant has done all he could, and he still gets stung then HB should help out.

I think the best cause of action is to pursue both avenues of appeal (is appeal the right word for the rent liability or is it complaint).

For HB overlap it is purely a question of reg 7 as per Stainsby’s post.
Housing law is not my strongest point, Tony and Derek_S make good points. Do you know any specialists in council tenancies and procedures?

Right okay! I will write a letter covering all bases then to be on the safe side, complaining re their lack of advising him, challenging tenancy termination date and also an appeal request. Its this issue of reasonableness though-the person i spoke to on the advice line thought it would be hard to win that particular argument as (in her opinion) it would be reasonable to expect the client to hand keys in when he vacated old property.
I must admit i am not a housing law specialist either (clearly!) but we do have contact with a housing solicitor so will seek his opinion also. Thank you again everybody!!

I tend to fall somewhere between Derek S and Stainsby here.

Section 81 of the Housing Act 1985 is in the following terms:

“The tenant condition is that the tenant is an individual and occupies the dwelling-house as his only or principal home; or, where the tenancy is a joint tenancy, that each of the joint tenants is an individual and at least one of them occupies the dwelling-house as his only or principal home.”

On the available facts here there is an argument to say that there is a strong inference (if not expressly stated) that the LA did not intend the tenant to have home B as his principal home but as his ONLY home.  If so it can be argued from the intentions of the parties that there was a mutual agreement that tenancy A should end on the day before the creation of tenancy B.

If that is correct, three things flow from that.  First, there is no outstanding rent liability on tenancy A following the creation of tenancy B.  Second, HB cannot be paid on tenancy A after the creation of tenancy B if there is no rental liability on tenancy A at that point.  Third, the fact that he held on to a set of keys is a red herring.

However, if this argument is accepted then the LA can still charge the tenant for occupying home A in the form of mesne profits as a tolerated trespasser.  Mesne profits attract HB but, as already stated, the question then would be was the liability unavoidable.  To decide that it would have to be determined whether mesne profits are a liability, where the term “liability” can be defined widely enough to include a right to claim for damages as compensation for use of the land, which is what mesne profits essentially are.  If it is not and HB is not payable then he should ask the LA not to enforce payment of mesne profits for the relevant period.

If the liability is wide enough to include mesne profits or the argument about “only home” fails and he does have a period of tenancy overlap then the usual two homes provisions apply, as previously discussed.  That will the depend on all the known facts.

My advice would be to seek specialist housing advice.