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UC Housing Costs & Living W/Close Relative Landlord
Hi All
I have a service user who has been denied the housing costs element from UC as he lives in his sister’s flat and they do not believe he is liable for rental payments as they believe she lives there as well.
While I am still investigating all the facts, it appears sister owns the flat, there is a commercially realistic tenancy agreement in place and she has only spent around 5 nights there over the last 6 months. She spends the rest of her time away on business, living with other family members, or living abroad with her fiance.
As the UC regs deny liability for rent to an applicant if they “live” with a relative in the same accommodation, I was wondering if anyone could point to any guidance or case law that discussed quite what “live” means? I haven’t been able to find much regarding UC myself unfortunately. While some argument could be made for that his sister doesn’t consider the property as a “home”, the UC test appears to be less stringent than that.
Any help much appreciated.
This is the unintended consequence of trying to draft the UC Regs in plain English: you end up with undefined expressions which can be hard to apply to unconventional facts.
In the HB Regs, the equivalent rule uses the defined word “reside”. Alternatively, they could have linked this rule to the concept of “occupying” a dwelling, which is covered in Schedule 3. But as far as I can see “lives in” has no definition. In particular, the regulations give no help when this is not the only accommodation used by the related landlord, so we don’t know whether it only applies if it is the place where s/he solely or mainly lives, or whether it is sufficient if it is just one of the places where s/he can be found from time to time.
Schedule 2 seems slapdash - elsewhere, it refers to a person who “lives in the household” under the heading “...member of same household”. The phrase “lives in the accommodation with the claimant” is also used, whereas para 5 (which you are interested in) only says “lives in the accommodation”.
I am not sure that any intention can be inferred from these small differences. It just looks like careless drafting.
While I am still investigating all the facts, it appears sister owns the flat, there is a commercially realistic tenancy agreement in place and she has only spent around 5 nights there over the last 6 months. She spends the rest of her time away on business, living with other family members, or living abroad with her fiance.
I think, leaving out the unintended consequence of trying to draft the UC Regs in plain English and the problem that will as Peter pointed out, this would still have been a problem if it was under the HB scheme.
I can’t see, forget that the landlord and claimant are related, how a landlord would normally come back to stay a few nights short and as infrequent that may be. It will create all sorts of problems in a situation like this one but then again you are stilling checking gout the facts so it may or may not be a stumbling block. It all seems genuine and plausible to me, I wouldn’t have though anything was being hidden if they divulged the information to UC themselves when there was no need to do so, unless I got that wrong.
Thanks for the comments from both of you. I agree that its hard to explain the landlord popping back in the odd night. As I understand it the property has a spare room right now and the landlord pops in once in a blue moon when she is between jobs and needs a place to crash.
Suspect it might be an uphill battle if possible. The pros seem to be that (a) the DWP have only rejected on the basis he lives with a close relative landlord, not that the agreement is not commercial etc. and (b) they have just been upfront with the DWP from the start. I naively hope that might count for something…
Firstly, can you establish that the tenancy is on a commercial basis? I.e. has there been a steady flow of reasonable rent payments (and has the sister taken any action where there has been a failure to pay rent)?
Could you evidence that the sister would let the property to someone else if the brother couldn’t afford the rent? F.ex has the property been listed?
Second, can you evidence that it is not the primary residence of the sister? I.e. where does her post go? Flight/train tickets demonstrating that she is away for the majority of time?
Seems to have been fuddled by the wording. Rather than stating that the sister lives in her own home now and then, the realistic, commercial basis wording, would be that your client rents a property, from a landlord that happens to be a relative, and occasionally allows that relative to spend a night. If the brother was of such a mind, the tenancy agreement should allow him to refuse the sister to spend any time there.
Entirely possible that any agreement here has been ‘contrived’ as a means to draw some extra cash from DWP. Might be helpful to pretend you’re a cynical bastard for a time, and view their arrangement from such a viewpoint. If it seems innocent you might be able to evidence that.
Thanks Va1der, I went back to the client with some similar questions regarding the room, letting it out to a 3rd party, and awaiting for him to send me a copy of the tenancy agreement. Good idea on the travel evidence, as sister works away a lot for business I have also asked if she didn’t mind producing her work calendar to evidence when she is out of the country, and therefore the flat. Hopefully that allows us to say she only stays there a minimal time, but I think the crux of it will be whether she is, or would, let the spare room out to a 3rd party. Thats what I would be focusing on if I was a DM.
And the cynical hat is always the best hat to wear.
It looks to me like things are getting a bit muddled.
If your client has a commercially acceptable tenancy agreement with his sister, the issue isn’t whether she would let out the spare room to someone else, because she wouldn’t have a right to do this as to all intents and purposes it’s HIS flat for the duration of the tenancy agreement. Unless she’s only renting to him as a lodger but it doesn’t sound like it.
It is an issue what she would do if her brother (your client) ended his tenancy agreement or isn’t able to pay his rent - would she evict him and let the flat out to someone else? (Who presumably wouldn’t let her stay overnight when she fancied, but you never know…..I have seen this scenario in a situation where the tenant didn’t even know the landlord before renting out the flat but the landlord thought it was their ‘right’ to stay in ‘his’ flat whenever he fell out with his partner!!)
If he’s made any payments to his sister for rent (even partial payments while awaiting benefit) or paid a deposit (unlikely I know) it’s worth evidencing these. Does your client have any vulnerabilities which mean that a sympathetic landlord is required? Health problems? History of homelessness? Where would he go if he was evicted?