Housing costs for family member when tenant not paying rent.

Hi all

I have an adult client who lives with his mother and his own child. Mum is the tenant, but has large arrears with a HA as she’s been deemed ineligible for HCs due to having a now estranged partner overseas with significant assets (and it’ doesn’t look like she’s taking any action on it).

An adviser from another agency has told him he can claim the housing costs himself under Schedule 2, para 1 and 2 as his mother isn’t paying the rent and he needs to occupy to avoid homelessness for him and his child. 

The regs do seem to read that way, but I’ve never seen this before.  Is this how they are being interpreted in practice?

Thanks

I’ve never heard of anybody trying this argument, but if it works within the rules then it doesn’t matter that it doesn’t get used very often - it’s a very unusual set of circumstances.

But I’m not sure it will work. To satisfy Sch 2 Para 2, the claimant has to satisfy all four conditions:-
(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.

So (a) is definitely satisfied. We can argue that (b) might be satisfied, except that presumably the landlord is not saying to him that he has to pay to stay. I think (c) is likely to be relatively straightforward if he doesn’t have other options and it would be difficult for him to secure alternative accommodation. I think it might fall down on (d) though. In a situation where the tenant who is liable is living in the property and is not taking any steps to sort out their own benefit entitlement, is it reasonable for them to be able to sidestep the benefit system and avoid any scrutiny of their own means, and just get a surrogate in to pay?

Honestly, in this situation I’d be advising him to focus his energy on encouraging and helping his mum to get help with sorting out her own benefits. He’s got nothing to lose by asking them to consider treating him as liable, but my instinct is that it’s a very long shot.

In the meantime, is he at the stage of applying to his local authority for homelessness assistance?

Edit: and have they considered a tenancy assignment from the mother to the son?

Thanks Timothy.  Pretty much what I thought too.  It would be just to easy to bypass the system if another resident could claim benefit for your tenancy.  As a social landlord we’re looking to help mum sort her affairs but also keep son and grandchild safe, but as there are huge arrears we can’t just assign the tenancy to him.  He can apply in his own right and would likely be successful for a property, but it may not be the home they’re in.

I took a case to Tribunal under the equivalent HB Regs.  In that case my client had a ( joint tenant ) brother who was a student ( not entitled to HB)

The argument was slightly different because it was not a case of holding the otherwise HB entitled tenant liable for the other half because he was already jointly liable, but it was a case of how the eligible rent should be apportioned for HB purposes .

The argument about reasonableness applies just the same though

My own opinion is that the one who is liable needs some good advice about challenging the refusal to pay housing costs but there is also nothing wrong in the meantime in the ( otherwise non liable)  person making the claim.

Its my guess that both could end up at Tribunal , but you should build your arguments for both of them as the appeals pan out .

If the DWP rely on ” guidance” or “policy ” arguments you can of course emphasise that the Tribunal is not bound in any way by mere guidance.  It is bound by the law as set out in the Regulations and principles handed down by the Upper Tribunal and the Courts. 

There is always the argument that it is proportionate to pay the housing costs because the alternative is homelessness for the family and that will be ultimately far more expensive to the public purse

Juno333 - 24 August 2020 09:53 AM

Thanks Timothy.  Pretty much what I thought too.  It would be just to easy to bypass the system if another resident could claim benefit for your tenancy.  As a social landlord we’re looking to help mum sort her affairs but also keep son and grandchild safe, but as there are huge arrears we can’t just assign the tenancy to him.  He can apply in his own right and would likely be successful for a property, but it may not be the home they’re in.

I know landlords are generally resistant to allowing assignment where there are arrears, but from a commercial point of view wouldn’t it be better to allow the tenancy to be held by somebody who you know needs the tenancy (and is living there) and who will (presumably) pay the rent, rather than the alternative (i.e. longer time until you start getting rent from that property (especially at the moment), you’ll never get the arrears back, and your local authority could end up having to rehouse them - not to mention the human cost).

I would also consider approaching the local authority to see if they could help with bringing the arrears down to an acceptable level so that you could allow assignment - it might appeal to them.

Whilst I was being quite negative about your client’s chances, I would agree with Stainsby that if this was one of my clients I’d still be trying to get them treated as liable for the rent. My nagging worry is that if the mother should be entitled to HB/UC HC then the son doesn’t need it, but if she shouldn’t be entitled then I think that would weigh quite strongly on the not reasonable side of the scales. That’s why I think your client’s time could be more profitably spent on helping sort out his mother’s claim. But you never know.

Timothy Seaside - 21 August 2020 04:31 PM

(d)it is otherwise reasonable in all the circumstances to treat the claimant as liable to make the payments.

So (a) is definitely satisfied. We can argue that (b) might be satisfied, except that presumably the landlord is not saying to him that he has to pay to stay. I think (c) is likely to be relatively straightforward if he doesn’t have other options and it would be difficult for him to secure alternative accommodation. I think it might fall down on (d) though. In a situation where the tenant who is liable is living in the property and is not taking any steps to sort out their own benefit entitlement, is it reasonable for them to be able to sidestep the benefit system and avoid any scrutiny of their own means, and just get a surrogate in to pay?
?

It occurs to me that the sidestep argument applies in all such cases, which then begs the question as to what the purpose of this would be?

Surely, for example, If mother has MH issues and could not be persuaded?

Mike Hughes - 24 August 2020 05:26 PM

It occurs to me that the sidestep argument applies in all such cases, which then begs the question as to what the purpose of this would be?

Surely, for example, If mother has MH issues and could not be persuaded?

The question is whether it is reasonable in all the circumstances. Whether the person who is liable to pay the rent lives in the property is just one of those circumstances, but I would tend to see it as a significant one (and I think all of the cases where I’ve asked for somebody to be treated as liable have been in the situation where the tenant was absent). But as you say, Mike, if that person can’t be persuaded to claim benefits because of their MH then that would be another circumstance, and it would be reasonable to consider whether they would be entitled if they did apply - another circumstance. And perhaps this would tip the balance back because now we are saying in all the circumstances one of them could claim, but is prevented from doing so because of their disability.

But in the instant case a decision has already been made that the mother isn’t entitled to housing costs because of excess capital. In the eyes of the DWP she has the money and is choosing not to pay the rent. So we come back to the point where I think they effectively need to appeal the decision on capital, and to me it seems more sensible to do that from the mother’s claim if possible, rather than building a whole different argument. From the OP we don’t actually know why (or even if) the mother isn’t challenging the capital decision - it just says it doesn’t look like she’s taking any action. Of course it’s possible that somebody just about managed to persuade her to claim, despite MH, but an appeal is beyond her limit, and that would be another circumstance to take into account.

On the other hand, if the son was the tenant and his mother was living with him, her wealth wouldn’t affect his benefit entitlement at all. This is a stark contrast, but to my mind this confirms that the system puts huge weight on the question of who is actually liable - and who is actually getting the benefit of the property rights.