Universal Credit

Please i need some help.
I have a client whose Resident card expired in May but for Covid,she hasn’t heard back.
UC has stopped her benefit.
Any tips on Home office guideline inline with Covid or delay of application

1. What sort of residence card is it? Is it EU? regular leave to remain?

2. Did she re-apply for further leave before this leave expired?

She has 5 years leave to remain as a Refugee.
Yes she applied before it expires.
UC stopped pay on grounds of eligibility of stay

If she re-applied before her previous leave expired, then her leave is automatically extended pending resolution of her application. See s3C Immigration Act 1971. The delay in dealing with her application should have no impact on ongoing benefit entitlement and the decision to stop her UC appears to be erroneous.

ADM C1679 confirms Elliot’s advice, seek recon of the decision to stop UC and cite the ADM; should be sorted toot sweet

Hi can someone offer some advice please?

I’ve been contacted by a gentleman who currently lives in one of our Housing Association property with his brother (and has been for over 12 months) who is our tenant. His name is not on the tenancy however he has been paying 1/2 the rent cost to his brother who then pays the rent to us.

He has lost his job and is in the process of claiming UC

Is there any way he could get an element of housing costs if his name is not on the tenancy, even if he has been technically paying half the rent?

Any advice would be greatly received.

Thank you

I think the answer is basically “not really”.

If they were both UC claimants, the tenant would get full HCE (perhaps minus a housing costs contribution) and the non-tenant would get nothing. If they were joint tenants, each would get half the rent.

It is possible in a small number of circumstances for UC to pay the HCE to someone who is not liable for the rent, but the main one of relevance applies where the tenant is not paying the rent and a third party reasonably assumes that responsibility. Whilst in principle, if the tenant was refusing to pay the non-tenant’s “share” of the rent, this provision could come into play - in practice I think that (a) it would be difficult to argue that this is a circumstance in which it is “reasonable” to assume that liability and (b) your organisation is unlikely to be particularly impressed with the tenant if he were to take that course.

Para 2, Sch 1 UC Regs 2013:

Failure to pay by the person who is liable

2.—(1) A claimant is to be treated as liable to make payments where all of the conditions specified in sub-paragraph (2) are met.

(2) These are the conditions—
(a)the person who is liable to make the payments is not doing so;
(b)the claimant has to make the payments in order to continue occupation of the accommodation;
(c)the claimant’s circumstances are such that it would be unreasonable to expect them to make other arrangements;
(d)it is otherwise reasonable in all the circumstances to treat the claimant as liable to make the payments.

Hi, I wanted to ask if someone could offer some advice:
I am currently working with a woman who has been living with her mother in one of our Housing Association property. The mother who was our tenant, passed away last month and the woman now lives alone in this 3 bed property.
She was a full time carer to her mother and was getting a top up of Income Support.
Due to the carers Allowance stopping she had had to make a claim for UC
She will not be given the tenancy of this property however she can remain living in it until she gets somewhere else to live, and she is responsible for the rent while she remains in the property.
She has tried to claim help with the housing cost however she has been told that she will not get any help as she is not the tenant - is there any way that she can claim help with the housing costs?
Seems unfair to me that she is expected to pay the rent and then not get any help from no one.
I would really appreciate any advice on this.

The simple answer is that UC should be treating her as liable for the rent and so she should be getting Housing Costs.

As Elliot posted about the previous situation, the daughter “is to be treated as liable for the payments” if the person who is liable is not paying, the claimant needs to pay in order to remain in the property, it’s not reasonable to expect the claimant to make other arrangements (I’ll admit I’m never completely sure what this means - Other living arrangements? Other paying arrangements? Either? Both?), and it’s reasonable to treat the claimant as liable. I think it would be very hard for DWP to argue that this case doesn’t fall under Para 2 of Sch 2 of the UC Regs.

Timothy, did you miss the bit about the tenant being dead?  If the tenant has died, the issue here is whether the surviving daughter is now personally liable to make any payments herself isn’t it?  And, if so, whether they are payments of a kind that attracts UC.  It is no longer a question of treating her as if she were liable for the mother’s rent.

The UC regs do not contain any specific provision to meet “just-give-us-something-to-keep-things-ticking-over-while-we-decide-what-to-do-with-you” payments, so the conventional work-around is to describe it as a licence /permission to occupy.  This seems to satisfy UC.

Don’t think its quite the same rule in this case as the tenant has died and presumably the tenancy has been determined.

Assuming its correct that she is not entitled to succeed the tenancy (and she ought to take independent advice on this as there is a clear conflict of interest), then she will have a liability to meet the costs of living in the property but this will not be as a tenant. Instead she will have a liability to yourselves either as a trespasser or under a license. Her liability will not be for ‘rent’ as such but she will be liable to make payments on account of her ‘use and occupation’ of the property. You will probably have set a U&O account up for her.

Housing Benefit explicitly counted these payments as rent, but UC does not. UC does allow for payments “for a license or other permission to occupy” to be counted as rent. It is usually possible for social landlords to have U&O paid as housing costs under this heading, albeit in my view it is a bit of an awkward fudge.

Unlike Elliot, I was assuming that the tenancy hasn’t been determined yet, and that it had passed to the estate (the mother only died last month). If that’s not the case and the housing association is correct about succession, then we’re presumably looking at a licence, and a direct liability. She can’t be a trespasser because she has the landlord’s permission to be there (hopefully cutting off the whole mesne profits misunderstanding).

For a comprehensive answer I suppose we’ll need to know what the housing association has done since the death (and more about the tenancy). But regardless of the answer, I wholeheartedly agree with Elliot that the daughter should be advised to get independent advice about her rights.

I can think of a couple of times when I’ve seen housing associations leaving somebody in occupation of a property for long enough that they lost the right to use ground 7 in possession proceedings. And I think it’s more likely to happen at the moment. And I can think of quite a few times when social landlords have wrongly told clients they’re not entitled to succession - so best get it checked.

Just to glue all of that together.

(1) If the claimant is entitled to succeed the tenancy then she is already the tenant immediately following the death so she is just liable for rent in the ordinary way from that point. This happens automatically irrespective of whether the landlord has accepted her as a successor. So housing costs are established.

(2) Assuming there is no succession, the mother’s tenancy continues but as a contractual tenancy as part of the estate. The landlord will typically act quickly to determine the tenancy. This is usually done on simple notice because the outstanding contractual tenancy is no longer subject to statutory protections. During this period of time, the estate is liable for rent.

As Timothy says, the occupier could seek to claim UC housing costs before the tenancy is determined on the basis that they have assumed the estate’s liability, albeit there may be little reason to do so from the point of view of the occupier because the rent will otherwise just become an estate debt.

(3) Once the tenancy is determined, then any housing costs element would be on a U&O/license etc etc basis as above.

Yes, that’s basically it.

The only thing I’d disagree with is about the legal situation of an assured tenancy on the death of the tenant. I should say that this is based on what I think really happens in law, rather than what landlords and tenants muddle through or think they’re doing.

I think what has probably happened so far in this case is that the mother died and the assured tenancy continued as part of her estate (assuming no survivorship or succession) and it can be inherited. The landlord can give notice under ground 7 (currently three months notice, usually addressed to the executors of the mother) and as long as they issue proceedings within 12 months of the death, it is mandatory possession. Like any assured tenancy, the landlord can only end it themselves by getting to the end of the possession procedure. Until then, the tenancy continues, and the landlord is not actually entitled to grant any licence because there is already a tenancy.

If the daughter continues in possession then she has to rely on Para 2 of Sch 2 (assuming the estate isn’t paying), unless/until she inherits the tenancy (at which point she will become liable for the rent herself) or until the tenancy ends. She would do this because otherwise the rent won’t get paid and the landlord could rely on rent arrears grounds instead/as well (usually shorter notice period, but not necessarily mandatory ground).

In practice a lot of different things happen, depending on the circumstances and on how well the landlord and tenant understand the law. If there’s nobody living there then the assured tenancy will end (because that is a condition of assured tenancies) and NTQ will suffice. The deceased person’s estate can agree to surrender (despite the wishes of the resident). The landlord and resident might agree that the resident can carry on living there as long as the rent gets paid - and if the resident is also the executor, maybe it amounts to surrender and so actually is a licence agreement. The resident might agree to give up possession because the landlord offers them somewhere else to live.

Housing law is complicated. But most people who work in housing aren’t lawyers so they just muddle through and do what they think is right, and mostly nobody complains or minds (or gets Legal Aid).

Edit: I’m not suggesting anybody tries to explain this to UC - imagine that! Probably best to just tell them it’s a licence agreement,  as HB Anorak suggests.

That’s really interesting,  You live and learn. I had assumed that, absent any statutory or contractual right of succession, a tenancy held by a natural person would determine upon his/her death.  But from what Timothy and Elliot say, it appears to be the other way round in fact: by default the tenancy continues albeit no longer as a secure (if an LA tenancy) or assured tenancy on account of the tenant having ceased to occupy it?

HB Anorak - 03 November 2020 10:05 AM

That’s really interesting,  You live and learn. I had assumed that, absent any statutory or contractual right of succession, a tenancy held by a natural person would determine upon his/her death.  But from what Timothy and Elliot say, it appears to be the other way round in fact: by default the tenancy continues albeit no longer as a secure (if an LA tenancy) or assured tenancy on account of the tenant having ceased to occupy it?

In land law, a tenancy is an estate in land (not just a personal contract) and so it is property and is part of the deceased’s estate (unless it was a joint tenancy - in which case survivorship applies). Without succession, assured tenancies continue as assured tenancies, but periodic secure tenancies become non-secure tenancies. So it’s easier and quicker for LAs to get possession in these circumstances.

Conceptually I’ll admit I’ve never been completely clear on how the occupation condition is satisfied when a tenant dies and their estate is vested in the executor (or public trustee). But it must be. Otherwise there would be no need for ground 7 in assured tenancies - landlords could just rely on NTQ as long as the estate was still in probate. Because of this I’m not completely sure I’m right that you could rely on just NTQ if there’s nobody living in the property - the occupation condition is about the tenant, so presumably it doesn’t actually matter where the tenant’s child lives. I believe it’s standard practice for housing associations to serve NTQ and ground 7 notice when they learn of the death of a tenant (assuming no successor). And in very many cases the tenancy will be determined by agreement (surrender).

n land law, a tenancy is an estate in land (not just a personal contract) and so it is property and is part of the deceased’s estate

Of course - it could be a very valuable asset couldn’t it - 999 year lease overlooking Hyde Park or something

Thanks for correcting me Timothy- I think I am essentially eliding the position for secure and assured.

Elliot Kent - 03 November 2020 08:06 PM

Thanks for correcting me Timothy- I think I am essentially eliding the position for secure and assured.

.. it’s also true that I am assuming it’s an assured tenancy. It probably is, but we don’t have all the information.