Couples, housing costs and prison

How long is the partner expected to remain in prison?  If it is likely to be more than six months they are disaggregated as a couple and then a 50% apportionment would be the default approach, but with discretion to vary it if reasonable.

If the period in prison is not likely to exceed six months they are still a couple, but the award is assessed partly as if the partner outside were single.  This involves the single person rate of the living cost elements but the housing element is still assessed as for a couple with no joint tenant apportionment: this is because the partner in prison remains a “listed person” as defined in UC Schedule 4.

In simple terms, UC should include the full rent if the partner is inside for less than six months; otherwise they have to convince DWP that it is reasonable to apportion other than 50:50.

Thanks for the response.

The sentence was for 12 months, with 6 months to be served. However, to complicate matters social services have stipulated that he is not allowed to return to the property for a period of time after his release.

If it’s exactly 6 months, which side of the line does this fall on?

Also, would it be possible to end the joint tenancy and set up a sole tenancy for the remaining tenant, or would this be considered contrivance?

If the absence from the household was exactly six months and not a day longer, they would still count as a couple.  UC Reg 3(6) says:

Where the claimant is a member of a couple, and the other member is temporarily absent from the claimant’s household, they cease to be treated as a couple if that absence is expected to exceed, or does exceed, 6 months

But note that it is absence from the household that is being measured, not time spent in prison.  It seems likely that your client’s partner will be absent for longer than six months if he won’t be coming home immediately after he is released from prison.

That means your client is now a single person for UC purposes, but with a joint tenant who is not a “listed person”.  UC Schedule 4 starts from a default assumption that there will be a 50/50 split but DWP has discretion to vary that if the circumstances so warrant.  There is some HB case law on reasonable apportionment where for one reason or another the joint tenant cannot/will not contribute.  There is this one that went in the claimant’s favour:

https://www.rightsnet.org.uk/pdfs/ch_2015/CH_3376_2002.pdf

And there is Naghshbandi http://www.bailii.org/ew/cases/EWCA/Civ/2002/1038.html which didn’t.

Cannot comment on the mechanism for converting to a sole tenancy - Claire Hodgson or Brian Fletcher might help you there.  Presumably the absent partner will have an opinion about that too.  If it happens I think there probably is a risk DWP will say it’s contrived.  My feeling is that the best option is to leave the tenancy alone unless there are entirely independent reasons for changing it anyway, and to focus on discretionary apportionment in your client’s favour for UC purposes.

Many thanks, will roll the dice with discretionary apportionment.

HB Anorak - 12 July 2017 10:23 AM

T

Cannot comment on the mechanism for converting to a sole tenancy - Claire Hodgson or Brian Fletcher might help you there. 

not me - not my field, i know nothing at all about this subject…

The plot thickens…. the claimant has now received a message on their journal stating UC will only pay 50% rent unless the tenancy is amended to a sole tenancy backdated to when he was imprisoned, in which case they will pay 100% and calculate any arrears due!! At least we have this in black and white - one advantage of UC…

Its pretty difficult to call, without knowing the reasons why your clients partner was inside HMP and why (mysteriously) social care say the partner is not allowed to return home after his release.

If it was me I would get permission to speak to the social worker, there might be a safeguarding concern, and your client might actually need a new safe address in their sole name. 

Good Luck.

MartinB - 13 July 2017 05:02 PM

Its pretty difficult to call, without knowing the reasons why your clients partner was inside HMP and why (mysteriously) social care say the partner is not allowed to return home after his release.

If it was me I would get permission to speak to the social worker, there might be a safeguarding concern, and your client might actually need a new safe address in their sole name. 

Good Luck.

i’d missed this part of the original post:

The sentence was for 12 months, with 6 months to be served. However, to complicate matters social services have stipulated that he is not allowed to return to the property for a period of time after his release.

so martin is correct; one wonders about domestic violence, possibly involving any children .....

Thanks all. Without going into too much detail, the offence relates to someone outside the household who lives in the vicinity, so this is not out of any immediate danger to our remaining tenant/their children.

Purely on the sole point of tenancy conversion:

Tenancy conversion should be a relatively uncomplicated affair.  I helped people with a few of these while working on the transitional housing benefit/supporting people programme.  Both joint tenants have to agree to the surrender, and the landlord has to be a willing participant.  For protection it should be done in writing, something along the lines of “we, jack Jones and Jane Smith, etc, hereby agree to surrender/terminate the tenancy of….from 00/00/00 on condition of the granting by “landlord’s name “of a new, sole tenancy of… on similar terms, to Jane Smith from 00/00/00.  It is also expressly agreed between the parties that the existing tenancy held by Jack Jones and Jane Smith shall only expire on the coming into being of the new tenancy agreement between Jane Smith and “landlord’s name””.

Of course, the words can be tinkered with, added to and formalised in a way that best suits the facts on the ground and provides the best legal protection for the tenants.  But with the right advice and assistance, and a willing landlord, it shouldn’t be too difficult.  And, always get legal advice before doing anything and get a lawyer or a specialist housing law adviser to help draft the agreement and to advise on any potential legal problems and formal requirements.

Meanwhile the claimant is only getting half the rent. She needs to apply for MR citing (l think from memory) Para 35 (6) of UC Schedule 4, assuming it is a social tenancy. I am not looking at the regs right now so you might want to check it. It’s the bit that gives discretion to allow more than 50%. Refer them to the HB decision I mentioned earlier where there is a list of the factors that led to a 100:0 split in the claimant’s favour. Reality is she will probably have to take it to Tribunal. DWP is going to learn the hard way about lots of housing cost issues that are understood by councils. What a shame to squander 30 years of know-how

We have had success challenging these dodgy apportioning cases via complaint and escalation rather than MR/appeal. No reason not to try both.

I’m coming across this more and more when couples are separating but the landlord won’t convert the tenancy from joint to sole due to arrears on the rent account - however the DWP have now come up with a solution to this problem….they have called it an ‘untidy tenancy’ and have issued a standard letter for customers to use in these scenarios.