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Forum Home  →  Discussion  →  Housing costs  →  Thread

Contrived to non-contrived tenancy..is it possible?

Tameside MBC Welfare Rights
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Mental Health WR & Debt Advice Service, Tameside MBC

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I have a case where the HB claim was turned down on the basis that the tenancy was contrived and this was upheld at FTT. A number of subsequent claims were then made and unsurprisingly each one was turned down on the same grounds. However, some of the key indicators of the tenancy being contrived that were identified by the FTT initially are not now present ie. proof of regular rent payments being made, proof that an inventory was carried out, proof that its a market rent being charged etc. My question is can a tenancy that was found to be contrived initially later be found to be commercial and non-contrived if the changing circumstances allow? Is there any case law that has determined this or is it the case that once its found to be contrived it remains so forever? Thanks.

Jon (CANY)
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Welfare benefits - Craven CAB, North Yorkshire

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I think you need to separately consider contrivance and commerciality, and can you show that any contrived tenancy has been replaced by a new non-contrived agreement taking effect from a later date. I found the comments in this thread helpful when looking at this:
https://www.rightsnet.org.uk/forums/viewthread/7040

Stainsby
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Welfare rights adviser - Plumstead Community Law Centre

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There is no equivalent in the CSPSSA to S17(2) of the 1998 Social Security Act ( which is the enabling provision in the Social Security realm for making Regulations to provide for certain determinations to be conclusive for further decisions).  This means that all previous determinations made by a decision maker or for that matter by a tribunal can be re-visited when a decision is made on a new claim.

In AM -v-Chelmsford Borough Council (HB) [2013] UKUT 245 (AAC) Judge Wright held at [48]

The decision of Mr Commissioner Turnbull (as he then was) in CIS/2540/2012 is to similar effect, though he was concerned with two notional capital decisions separated by a period of time.He decided that section 17(2) of the Social Security Act 1998 allowed to be relitigated on the second appeal whether the claimant had deprived herself of capital (per regulation 51(1) of the Income Support (General) Regulations 1987), notwithstanding that the first tribunal had examined the exact same issue . The said section 17(2) precluded an issue estoppel arising.

Judge Wright’s reference to CIS/2540/2012 is an error in drafting.  The correct reference is CIS/2540/2004.

In short, the new decision maker can and should look at the evidence afresh as must the Tribunal if the case goes to appeal because the new claim is refused

[ Edited: 17 May 2018 at 06:13 pm by Stainsby ]