Apportionment of HB for joint tenant family members

Hi all. Just looking for opinions on this situation as it seems quite complicated. I’m going to split it into two posts as it is quite long.

Household is Mum and Dad (both of whom are disabled and get PIP and AA respectively - they have a couple claim for ESA, not sure why they haven’t gone onto PC) and their 3 adult children. 1 of the children has a learning disability and gets LRC/LRM.

Family moved from temporary housing in another borough into private housing in our borough. They signed a tenancy in joint names. At this point they were assessed as a family unit with a HB claim in Dad’s name. The four bed LHA was used, which was exactly the same as the rent charged. No non-dep deductions as the parents are on disability benefits.

The landlord then wanted to do work on the address and so in May 2016 they moved a couple of doors down on the street (both properties owned by the landlord). This is where things start getting weird. Dad sends in a new claim/CIC for number 20. Two of the children also make claims for HB for the address. All three claims state that the family live as a COMMON HOUSEHOLD (their capitals) and that they are responsible for the full rent. I’ve only spoken to the son on the telephone and he tells me that the family was given advice and assistance by the landlord with the claims. He tells me that one of the reason they did it that way was that so he and his sister would have more independence. He is clear that he sees himself as having a ‘share’ of the rent that he is responsible for although he could not specify what this share was - just that it was the amount that Housing Benefit would pay to him. The Housing Benefit for the two children was paid into the Dad’s account.

HB was awarded on each claim for a third of the new rent. The son and daughter seem to have been given a 13 week protection from LHA. The father’s claim used the 2 bed rate.

In August 2016 the family moved back to the original property. The full rent was 510.77 a week The daughter and father were both awarded a 1 bed rate of 204.08 a week each. The son, who was and is under 35 was awarded a shared room rate of 95.18 a week. So the 3 HB claims were covering just under the full rent

The other son disappears off the system at this point as the family did not respond to a request for info about whether he had moved with the family. In fact he continues to live at the property.

That is the story up until recently…

What has happened now is that the father and daughter’s respective claims have been revised back to August 2016. The HB team have split the full rental liability for the period (which has since changed to 450pw) 4 ways - giving an eligible rent of 112.50 for both claims. This has resulted in very big over-payments on both claims. The brothers claim is unchanged and his claim remains restricted to the Shared Room Rate.

So what should have happened? I don’t think that either the original awards or the current decisions are correct? My understanding is that on each claim the 4 bed LHA should have been used, and each claimant’s eligible rent apportioned from this. Our 4 bed LHA is 417.02 weekly. So split 3 ways that would give an eligible rent of 139.01. So the father and the daughter would have been still been overpaid but not by so much and the son would have been underpaid.

Given that the first tenancy was also in joint names could much of the HB paid on this also be overpaid? Reading the Shelter HB book it seems that whilst family joint tenants don’t count as separate, ‘family’ only counts as partners and dependent children/young adults. So for non dependent children who are also joint tenants the claim should be dealt with as above. The children should have made their own claims for HB right at the beginning.

My final query would be re the recoverability of the remaining overpayments. Right from the very beginning it was clear that this was a joint tenancy and the TAs were provided. So it seems to me that the incorrect calculations and the overpayments that resulted must be an official error. In the circumstances do people agree that it would not be reasonable for the family to realise that they were being overpaid? From their perspective none of them were working and as a result all (or almost all) of the rent was being paid. Surely it doesn’t seem reasonable for them to have realized that the wrong LHA rules had been used?

Sorry this is so long!! If you got to the end and have any opinions/advice you could share it would be super appreciated :) !

Sam

Looks to me as though the LA has vacillated between treating the family as a common household and….not.

If they are a common household then your understanding about how the eligible rent is calculated is correct.

It seems there are two issues here -

1) the claim is wrongly assessed because it was always a common household, in which there isn’t an overpayment (possibly they’ve been underpaid?)

2) the claim is now being correctly assessed because it isn’t common household BUT any overpayment is the result of an official error and it seems inconceivable that the claimants could have realised this.  Therefore the overpayment is not recoverable.

Local authorities frequently misunderstand the common household issue.  The consequence of joint tenants belonging to a common household is that each of them individually is entitled to the N-bed LHA rate: so the maximum total eligible rent for all joint tenants is N x the N-bed rate.  In this case that would appear on the face of it to be 4x the 4-bed rate - up to £1600-odd a week.

But then there are “young individuals”, a status which “trumps” common household.  Any YIs in a common household set-up would only be entitled to the shared accommodation rate.

The mistake that councils frequently make is to apportion the N-bed LHA, so that each joint tenant is given an eligible rent of the N-bed LHA rate divided by N.  That is incorrect: there is no provision in the HB Regs to divide the LHA between joint tenants.

That is the LHA side of things.  The claimant’s HB eligible rent cannot exceed his/her share of the real life rent.  So the LHA rate determined in accordance with the principles outlined above must be compared with the claimant’s share of the rent and HB is based on the lesser of the two.  This is where the apportionment between joint tenants takes place.  The eligible rent for each person is MIN(N-bed LHA, R/N) - although a crude R/N split is not always appropriate, it might be reasonable to apportion R more heavily towards one JT than the other(s), for example where one of them has children and uses more rooms.  And remember in the case of a young individual the eligible rent is MIN(Shared LHA, R/N).

So what should the Council have done in this case in August 2016?  Assuming the father is over 35, his LHA rate should have been the four bed rate; the son and daughter should have been entitled to the shared accommodation rate only (assuming both are under 35).  If the daughter is not under 35, she should also have had the four bed LHA rate.  Either way, there is enough LHA there between the three of them to cover the full for the property if it is apportioned in a sensible way.  Therefore at least one of them has indeed been underpaid.  In any appeal I would argue as follows:

- it is reasonable to apportion the rent quite heavily towards the father, since he sort of “owns” the disabled non-dep and also has a partner.  That’s three people relying on his claim.  Lets say about 3/5 would be fair (the “missing” son makes it messy, but lets leave him out of it).  So for dad, the eligible rent is MIN(4b LHA, 450x60%).
- The remaining £180 should be apportioned between the two YIs, so that their HB is MIN(shared LHA, £90).  Clearly any overpayment to the daughter is official error as the Council has had the full facts all along.

Thank you both - super helpful as always 😊 !

Sam