Priority between claimants where partner is in prison

I have a situation where the partner who was the claimant for Housing Benefit went to prison and while on remand requested his Housing Benefit continue. HB was paid into his bank account and not to the private landlord. When he went to prison his wife decided to separate from him. She had to pay rent to remain living in the property, and was eventually given a tenancy in her own name, although the payments to him did not end until he was sentenced. The Local Authority did not know (and did not try to find out) that they were no longer a couple.  She has been left with rent arrears for around 6 months. Who had the strongest claim for Housing Benefit before she was given the tenancy?  Am I right in assuming that after she had the tenancy, she is the only person who had a right to Housing Benefit?  Is there any case law that could help me here?

Ruth Knox, RAISE Benefits Advice Team, Liverpool

The person with an ongoing award will keep that award indefinitely unless and until the decision upon which the award is based is either revised or superseded. 

Grounds must be established before such a revision or supersession can take place (see R(IB)2/04).  Any such revision or supersession is appealeable of course.

Given that the mere fact that a claimant has acquired a partner is not of itself sufficient to form the basis of a superseding decision terminating an award of income support (see R(IS)13/05), the same principle must also apply to HB.  On the face of it, the LA had no grounds to terminate the prisoners award while he was on remand, unless futher grounds could be established.

The LA has no duty to find out for itself whether a claimant is in arrears ( R v LB Haringey ex p Azad Ayub QBD 13 April 1992), so there was no issue there from the LA’s point of view.

The LA cannot unilateraly swap the claimant/partner role (see HB Regulation 82(1)(c), ) and so there seems to me that there was no reason for the LA to take action until the partner acquired a tenancy in her own right.

If the tenancy was in the prisoner’s sole name, I dont think that arrears could be tranferred into the partner’s name   (see Notting Hill Housing Trust v Jones CA 20 Jan 1999)

If the couple were no longer a couple and the (former) partner acquired the tenancy in her name only, she will be the only person with the right to HB, but she first of all would need to make a claim.  She would need to prove good cause for backdating, but any HB paid on behlf of the prisoner after his tenancy was relinquished would have been overpaid, and recoverable from him

Thank you. These are all the issues I have been thinking about and it is very helpful.  I can imagine that this situation must arise - partners separating around the time one is imprisoned - for instance in domestic violence situation Ruth