liability to pay a former partner - Reg 9 (1) (c)

Hi everyone , 

I have a client who has been refused HB   on the basis of Reg 9 (1)  (c) which has created overpayments dating back to 2006 of approximately £53,000!

The facts of the case are as follows;

Client   has been living in private rented accommodation for over 20 yrs . It was occupied by her and ex – husband until   they separated and finally divorced in 2000. The landlord was her father – in law and client continued to remain in the rented property and received HB until it was recently disallowed following a new application
( made after IS had ceased ).

Apparently , it came to   light that the ex- husband became the legal owner of the property   in 2006 (  land registry confirms this ) . Unfortunately , client was totally unaware of this until now . She had no new tenancy agreement at the time and recalls being told by her ex- husband that she pays the rent to him as he had taken over his father’s   financial affairs . There was no mention at that time that he had become the legal owner of the property . So, client paid the rent directly to him thinking that her father - in – law was/is still   the landlord.
  My client is totally innocent and I cannot see that she has abused the system in anyway . I will be challenging   the overpayment and requesting the LA to   exercise their discretion not to recover on these grounds and other facts such as significant health problems, affordability and no real   loss to public purse   as they would have had to fund other rented accommodation . 

My question is there any argument for Regulation 9 (1) (c) not be applied in her circumstances . I have done some research and found the following decisions regarding this Reg :  DH v Kirklees MBC (HB)(2011) UKUT 301( AAC)  and   CH 1973/08 which is similar to my client’s case .
Unfortunately , the arguments made in both decisions do not assist my client unless someone knows of any other way of challenging it.

You are looking at two separate issues here: entitlement to HB and overpayment recovery.

I agree the case law is not encouraging: it does seem that the ex acquired the landlord’s interest in the subsisting tenancy when he took ownership even if there was no documentation expressly saying so.  Therefore the Council appears to be quite right to conclude that Reg 9(1)(c) is engaged and quite possibly 9(1)(d) as well if there are still any children under 16.

It also means there has been an overpayment and that overpayment is recoverable if it did not arise from official error (which it seems not to have done).

However, the question from whom the overpayment is recoverable is another matter and there might be some glimmer of hope there.  At the very least a well-advised appellant can make it hard work for the Council.

An overpayment is recoverable by default from the claimant and, if different, the person to whom HB was paid.  You imply that HB was paid to the claimant personally here (she paid the rent to her ex husband), so it looks as if she is the only one in the frame.  But the default position does not apply if the overpayment was caused by someone else misrepresenting the facts on the claimant’s behalf.  Has she ever submitted evidence of rent liability prepared by her ex or his father in the knowledge that she was going to use it in support of an HB claim, and was there anything about that evidence that was not true?  If so, that could put one of them in the frame instead.  Unfortunately the Council cannot stick failure to disclose on either the ex or his father because they did not have any duty to disclose anything if they weren’t receiving HB payments from the Council.  Misrepresentation is the only way they could be liable for repayment it seems.

It’s a long shot, but if the claimant’s grounds for appeal assert that the overpayment is recoverable from another person instead of her that opens it up into a tripartite appeal.  The Tribunal will have to handle it carefully - there are plenty of opportunities for procedural error which can force the whole process to start again.  This might just persuade the Council that life is too short and that they should use their discretion not to recover from her.

It also seems possible that the ex partner might have committed the offence of causing or allowing the claimant to misrepresent the facts if she innocently passed on info she had received from him.  The Council might want to look into that side of it because they could possibly end up with him being ordered to pay compensation instead of her repaying the o/p.

As I say, it’s a long shot.  If I were the Council I would probably take the line that her grievance is with her ex and that’s who she should look to for restitution.  The Council cannot just wave £53 grand bye-bye because they feel sorry for her - this is a private mess that her ex has got her into, meanwhile they want their money back.  I think that’s the way they will see it unfortunately.

Thanks for the reply.

Yes,  I am aware that there are two separate issues and that the overpayment did not arise from an official error that   is why I’m giving a shot to request the LA to exercise their discretion . 

From 2006 she says that has never submitted any rent liability evidence from ex or father –in – law and she does not recall any review forms being sent out.  You are right that it is the ex - husband’s fault and he has probably committed a criminal offence for not providing any notice of him becoming the landlord . As quoted in CH 1973 /08 – paragraph 13. Unfortunately , client does not want me to make any mention of this and her ex to be involved in the matter.

Yes ,  there is also the application of Reg (9) (1) (d) as she did have dependant children for part of the period of the overpayment .  The youngest is now 19 and my understanding that the definition of a child is up to the age of 16 .  So ,  that no longer applies now and my main aim was looking into possible arguments where Reg 9 (1) (c) cannot be applied.

I felt that she had poor prospects of succeeding but wanted a second opinion. Thanks again for your reply.

A messy one….  Although if your client takes housing advice she might find that she has had no liability to pay rent since her landlord changed and she wasn’t advised of the new landlord’s details…..  While I don’t think failing to notify her is a criminal offence, he might (as landlord) struggle to evict her on the grounds of any rent arrears due to the lack of notification.

Wouldn’t she be covered by the argument that she can’t be held liable to notify something which she’s unaware of?

Hmm the ex has misinformed her and trousered her money. Without advising her that HE is the new landlord and has all the serious legal responsibilities that go along with that role eg repairs, gas safety and so on. 

She is now losing 53K which had she known he was the landlord (and had sought advice from her HB office) she might not now be losing.

Looks like deception to me.

The Landlord and Tenant Act (1987) Section 48:

48.—(l) A landlord of premises to which this Part applies shall by landlord of notice furnish the tenant with an address in England and Wales at which address for notices (including notices in proceedings) may be served on him by the of notices, tenant.
Landlord and Tenant Act 1987 c. 31 47
(2) Where a landlord of any such premises fails to comply with PART VI subsection (I), any rent or service charge otherwise due from the tenant to the landlord shall (subject to subsection (3)) be treated for all purposes as not being due from the tenant to the landlord at any time before the landlord does comply with that subsection.

i.e. rent is not lawfully due.

Obviously this does not help your tenant in terms of the HB overpayment, however, she may be able to seek redress from the ex in the event of the LA not exercising its discretion to write it off. She has paid rent that she had no liability to pay.

Some changes to the Act were made by the Commonhold and Leasehold Reform Act 2002 but not, as far as I can see, anything that contradicts the above

thanks for all your replies .
My aim is now to request the LA to waive recovery .

You say she has been refused HB because this has come to light.  What would the LA do if she submitted a new HB claim with the correct landlord on the tenancy agreement?

I assume that - if she otherwise qualified - they would have to accept it.  They would then have to pay the HB to her (minus whatever deduction they are allowed to make if you don’t succeed in getting a write off).  She could then take Court action against the landlord for recovery of the £53K (Billy Durrant’s post) & - if he didn’t pay - try to get agreement (if necessary a Court order?) that she keeps the HB & doesn’t pay him any rent until she has recouped the £53K. 

As a variation on this she could ask the LA to keep all the HB she was entitled to, thus paying off the £53K much quicker.

This may be fantasy but I thought it worth throwing it into the pot.

She doesn’t qualify for HB if her ex is the landlord. That’s the problem.

Not sure s48 of L&TA; will help in the long run either: rent not payable “at” any time before compliance isn’t the same thing as “in respect of” - this was considered in CH/257/2005 at para 50 citing the 1994 case of Dallhold Estates v. Lindsey Trading Properties.  As soon as the s48 formalities are complied with the accumulated arrears of rent become payable.