Brother and sister - dependant or non-dependant?

I am advising a brother and sister.  The brother is over 18 and is in receipt of ESA.  He claims CB for his 16 year old sister.  They live in social housing.  The 16 year old sister is employed (part time).

They took this tenancy as joint tenants and they both claim HB for 50% of the rent each.

They have now been for advice, as the 16 year old is only getting partial HB due to her PT employment and is having difficulties paying the rent.

Obviously, DHP is an option.  But, it occurred to me that the sister is a dependent of the brother, so he should be claiming for the whole rent (with her as a dependent).  He would then get full HB (based on his ESA award) and her income will not be counted.  This will also protect them from a non-dep charge should CB end before she is 18 (it will probably end in August).

Can anyone help me with a way forward for this?  Can the brother claim for the whole rent while they are on the lease as joint tenants (they were advised to do it this way by the social landlord)?  Would this be seen as taking advantage of the HB scheme by deliberately creating a higher rent liability for the brother?

Any thoughts and ideas would be very much appreciated!

Thanks

You might want to consider seeking legal advice about the lawfulness of the tenancy.  A minor cannot hold an estate in land unless some person, individual or corporate, can be deemed to hold his interest on trust for him.

This is a Scottish Secure Tenancy which is available to anybody 16 or older - maybe it’s different in England?

Ah!

This is one of those perennial favourites to which I do not think there is any definitive answer.

Her status as a dependant arises from provisions relating to means-testing and aggregation.  In HB, these provisions presuppose that you have a claimant who satisfies the threshold eligibility conditions of liability and occupation to start with.  She does - there is nothing to say that she is not liable for rent just because for means-testing purposes someone else will include her as a dependant on his claim.

The most workable suggestion I can think of is that he makes the HB claim and the LA agrees to apportion the rent 100:0 in his favour.  If she insists on claiming, that apportionment would serve to deprive her of any eligible rent.  That’s how it is normally done.

The fact that in your case this will be advantageous in terms of means-testing (earnings of dependant child completely ignored) is a happy coincidence.

So, do you think that the LA can agree to let him claim for 100% of the rent - when the fact is that he is only liable for 50% of the rent because they are joint tenants?

They are both liable for 100% of the rent aren’t they? - Jointly and severally, which means either one of them could be ordered by a court to pay it, and both would be evicted if the rent was in arrears irrespective of whose fault that was.

At least that’s how it is in England and Wales.  I don’t whether Scottish joint tenancies are different in that respect.  Assuming true joint liability for the whole rent, it can be apportioned for HB purposes in whatever way achieves the most sensible outcome

Yes, they are joint and several - normally the LA would treat this as 50% each - but you are right there is no reason why it has to be this way.

Thanks very much for your help with this!

Martin

Hi Martin

I think I know who your clients are - assuming they are DCHA tenants?

If it is, then I agree and I think that the brother can be responsible for the whole rent, at least while his sister remains his dependant. One potential problem is that the sister has already been awarded HB in her own right…

Thanks for this - I think that this will be tricky and I’m not sure that HB could get backdated to cover the HB he could have claimed had she not claimed in her own right.  What do you think?

I think it should be possible - you’re not asking for backdating, you’re asking for the decision awarding benefit to the brother to be revised. It’s now out of the one month time limit but you should be able to show good cause for a late revision.

I assume that she was just told to claim HB by their Housing Officerwhen they signed up for the tenancy so you could argue they were advised wrongly.

The other problem is that if this is successful, she will have been overpaid HB. I think the council should be able to just recover this directly from the rent account though

The joint tenancy does make things difficult with the HB at the minute, but it will mean that the brother can keep his SDP on his ESA when she is no longer his dependant

There’s another reason why the brother should claim for the full rent and why this should be done retrospectively by way of revision. Section 134 of the SSCBA 1992 stops members of the same “family” getting HB at the same time.