Landlord’s duties

I’m trying to find some guidance on a landlord’s duties where they are recieving payments of Housing Benefit for their tenant.

In particular, is there a duty to use the Housing Benefit towards the rent for the property and the period it was paid for?

Logic and fairness tells me that to use it for any other purpose, the landlord would be on very dodgy grounds - and would be in danger of being treated as not a fit and proper person and lose any chance of getting HB direct to them in the future - but I can’t seem to find anything anywhere which says what a landlord’s duties are beside notifying a changes of circs when they become aware.

Of course, logic and fairness, and the benefit system do not always go hand in hand.

Thanks

I may not be understanding the question correctly but…

Is this a case where there’s a sub-let so the landlord has an agreement to pay rent to someone else in order to keep the proper available for them to let out to their sub-tenants?

Generally, I would say there’s no duty for a landlord to spend the Housing Benefit they receive on the property it’s paid for.  Obviously they have legal obligations to provide certain things (a wind and water tight home, water and space heating, gas safety checks, etc) but if they’ve already met all of these obligations they can reasonably use the money as they wish.

Obviously if the landlord has a responsibility to pay rent in order to keep the property, failure to pay will mean the property is likely to be re-possessed at some point - this would be the same if a landlord failed to pay their mortgage.

If it’s an issue where the tenant feels the landlord is not meeting their responsibilities why doesn’t the tenant request that HB be paid to them so that they can instigate a conversation with the landlord?

Sorry if I’ve completely misinterpreted the question!

Mairi

Sorry - I probably didn’t make myself clear

A landlord is recieving Housing Benefit direct for their tenant.  Instead of using this towards the tenant’s rent liability at their current address, they use it to pay off arrears that the tenant has at a previous property owned by the same landlord - resulting in the former tenant arrears becoming current tenant arrears.

Or the landlord uses the Housing Benefit to pay off money that the tenant owes because of damages caused rather than as a contribution towards the rent - again resulting in rent arrears.

My gut feeling is that HB is paid for a specific purpose, on a specific property for a specific period and if the landlord uses it for another purpose they are on very dodgy grounds if they then attempt to take possession action for arrears on the current property where they have actually recieved HB to cover the full rent for the property they are trying to repossess.

I am not a specialist in contract law but I think this is legally dubious.  The tenant and landlord are contractually bound to each other.  One to provide the dwelling and the other to make payments in respect of leasing the dwelling.  The payments that the tenant makes to the landlord, either directly or directly from the HB department are, unless otherwise agreed, contractual payments under the terms of the lease.  The landlord, in my view, has no right to treat them otherwise.  If the tenant has a previous debt to the landlord then, unless there is a term in the current lease that allows for another remedy, he has a right to sue for the debt and that is his appropriate remedy for that.  The tenant needs to seek specialist advice.

i wonder if high court decision in ‘r v haringey ex p ayub’ might be relevant -

see p 17 of extremely old and mildewed version i have managed to unearth from the cellar -

‘When a council is making a payment to a landlord under Regulations 93 or 94 [now regs 95 and 5 of HB Regs] of rent allowances to which tenants B-Z are entitled it is in effect acting as the agent of those tenants and paying their rent for them. Upon such a payment being made the tenant’s liability to the landlord is pro tanto extinguished and the latter cannot therefore sue the former for more payment of that rent or repossess the property on the basis of that rent’

http://www.rightsnet.org.uk/pdfs/R_V_Haringey_exp_Ayub.pdf

also quoted on p 502 of CPAG’s HB and CTB legislation 2011/2012.

Clayton’s case - 1861! In this case, the old ones are not the best…..

http://en.wikipedia.org/wiki/Devaynes_v_Noble

See the CPAG HB and CTB Legislation current edition at page 503 for an example (in that case related to a situation where an o/p is recovered from a rent account and there is an ongoing liability to pay rent).

Where a person owes 2 debts and makes a payment to the creditor then the general rule is that the payment is taken to be towards the debt that arose first in time.

Apparently, if the person simply states this is not what is intended (eg “this is for my current rent”) then the presumption is overcome.

It might be possible to argue that the presumption in Clayton should not apply in these sorts of situation as it is blindingly obvious that the purpose of HB is to discharge the rent liability for the weeks in respect of which it is paid.

Also for this client he might be able to say he has actually made it plain that this money is for his current rent etc.

The Ayub example Ros gives is, I think different- in that case the issue was the council saying to the landlord: “We owe you money for Mr A, however because you owe us money for Mr B, we will reduce the amount we pay you for Mr A….” ...so not quite the same: this is from the point of view of set-off (where two parties owe each other money) rather than one person owing two debts to another. Having said that it might mean my final comments in post above are correct…

On the narrow point of rent: in my view, rent is not of itself a debt.  It is a payment for the use of the land and usually due at the beginning of the start of the term of the tenancy, i.e. in advance on a set day each month.  It is only when the period of the tenancy expires, typically on a monthly periodic tenancy at the end of that month, if the rent is not paid that it becomes a debt.  So, we don’t know enough facts about the timing of the HB payments in relation to the tenancy periods to make a determination on that point.  The Haringey decision might be of use but I would still recommend the tenant seek specialist advice.

fair play - seems like good advice to me.

Nice point Nevip.

Isn’t reg 95(2) binding on the landlord? As made:

Any payment of rent allowance made to a landlord pursuant to this regulation or to regulation 96 (circumstances in which payment may be made to a landlord) shall be to discharge, in whole or in part, the liability of the claimant to pay rent to that landlord in respect of the dwelling concerned, except in so far as [there’s an overpayment]

Woops.

I’ll get my coat…. and stop mentioning cases from prehistory.

However… note that at page 481 of the CPAG Legislation there is some speculation that this provision might be ultra vires the enabling power. ie that the HB legislation can’t affect the general law of landlord and tenant in this way.