Eviction for rent arrears arising from overpayments.

Shawn’s post has reminded me of something I was meaning to enquire about.

I was told last week by one of our tenancy officers that they could issue possession proceedings for rent arrears that arose due to an overpayment being recovered from a client’s rent account.

In the dim and distant past I learned that where HB had been paid the liability was held to be addressed even if HB was later recovered hence you couldn’t found possession proceedings on such arrears.

When did it change?

At common law “rent” means rent lawfully due.  Thus, if your memory is correct, and it strikes a chord with me too, then it would take a further court decision to change the position and I’m not aware of any change to the statute.  I’ve not heard of one but someone else might know different.

Table 18.5 in Shelter’s Guide to HB book lays out the difference between:

Rent rebate cases: landlord is the council, rent arrears and HB o/p should be kept separate, ongoing deductions for an HB o/p can create arrears if the shortfall is never paid, but a bill for overpayment can only be turned into arrears if allowed in the tenancy agreement, or if the tenant fails to specifiy which debt any payments he makes should be attributed to. [R v Haringey ex p Ayub]

Rent allowance cases, eg housing assocs: recovery by bill to the landlord gives rise to rent arrears. HB 2006 reg 95(2).

Interestingly, the commentary to reg 95(2)(b) suggests it is arguable that the reg is ultra vires s5(1)(p) of the Social Security Administration Act as it “purports to affect the substantive obligations and rights, under the general law of landlord and tenant of the claimant and landlord inter se”.

Inter se means between the parties.