LHA and lodgers

A client lived in a two bed private rented flat with her dependent son until a year ago when her son went to live with his dad.  The client’s LHA was then reassessed and she was awarded the one bed rate as she was now living alone. This left her with a large shortfall in rent of £100 a week. The client informed me that she took in a lodger, informed housing benefit dept and the lodger paid the shortfall in rent which she states did not affect her LHA. She is now taking in new lodgers (a couple) after having three months on her own again. She states that the landlord is aware of the lodgers and that they will pay the landlord directly rather than her…

I explained to her that having a lodger is likely to affect her LHA entitlement, however I just wanted to make sure I am on the right track with this.

I can see two potential outcomes for the LHA:

- If the lodgers are paying the landlord then I would have thought that they become joint tenants and therefore she will only be entitled to the shared accommodation rate of LHA.
- If she remains the sole tenant and the lodgers pay her the rent then they will become part of her household, she will be entitled to the two bed rate of LHA but will have the rent they pay taken into account as income for her means tested benefits (plus non dependant deductions?)

Does the above sound correct? Have I missed anything?

I’ll address the housing issue only here and assume you can work out the LHA position from there.  If she doesn’t have exclusive possession in fact and law then her rights as a lessee are less clear.  If she does have exclusive possession of the entire property and she needs and has (or doesn’t need) the permission of the landlord to sublet then several things flow from that.

First, the landlord has no power to sublet during the life of the original lease.  Second, the sub lease is between the tenant and the lodger and the liability for rent is to the tenant and not the head landlord.  There is no question of a joint tenancy arising unless the head lease is brought to an end.  Third, the rent is payable to the tenant under the sublease and not the landlord.  Fourth, the tenant remains liable for the original rent to the head landlord.  Finally, only when the head lease expires does possession (following due process of law) revert to the head landlord who is then free to re-let to whoever he wants on whatever lawful terms he wants.

I suspect that the lodger paying direct to the landlord is merely an administrative device.  If not then she needs proper housing advice.  However, there remain issues of how that income is treated as belonging to her for benefit purposes that might need to be ironed out with the LA.

edited to remove ambiguity

In land law “rent” is a generic term meaning contractual payments for the use or occupation of land and/or accommodation, so I wouldn’t worry about how the term is used here.  Nothing substantial turns on it.