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Forum Home  →  Discussion  →  Housing costs  →  Thread

Paying mesne profits and claiming HB

Jackie Allbrook
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Citizens Advice Elmbridge West, Surrey

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Our client’s are a couple who were living in tied accommodation, the husband was a school caretaker until being dismissed from his job at the end of July. The school are allowing our client’s to continue living in the accommodation on a temporary basis for which they pay ‘mesne profits’ to the school (no tenancy therefore not paying rent).
As mesne profits are an eligible housing cost within the HB Regs and not within UC Regs, we suggested that they made a claim for HB to help whilst husband is looking for alternative work.

Our Local Authority are struggling to find a way to process this claim - although they agree that the mesne profits are an eligible cost and want to be able to process the claim, they don’t know how they can technically do this as in their words ‘the gateway is now closed.’

If anyone has come across this, or a similar situation and can help with some information that might enable the LA process this claim I would be very grateful!

Elliot Kent
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Shelter

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Yes the problem is that the HB claim is conceptually impossible because the benefit no longer exists for new claimants. The only exceptions would be if the claimant gets the Severe Disability Premium including in an existing legacy benefit claim or if they are over pension age. It isn’t possible to secure an exception simply because the legacy scheme would have been more generous than UC.

If they want to get benefit to pay the rent otherwise, the only way to do so would be to claim UC and persuade UC that the payments they are making constitute ‘rent payments’ for the purposes of UC.

UC has historically been a bit hard to fathom in terms of what they will and won’t pay. The original position was specifically to exclude “mesne profits”. The regulations also removed payments relating to “use and occupation” and it was said that these would often be subsumed into payments for “other permission to occupy”. UC now seem to be happy to pay “use and occupation agreements” but not “mesne profits” notwithstanding that there is not really a huge difference between these two things.

Perhaps if the landlord can be persuaded to adopt the terminology of use and occupation rather than mesne profits, you will have an easier time getting UC to pay it.

[ Edited: 7 Sep 2020 at 11:03 am by Elliot Kent ]
Timothy Seaside
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Housing services - Arun District Council

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It doesn’t sound to me like this charge can properly be called mesne profits. It can only really be mesne profits if they’re trespassing, but you say the landlord has agreed they can stay. This means the landlord has granted them a personal licence, and these are licence payments. Obviously I’m basing this on very limited information, and I’d suggest it could be worthwhile for them to get specialist advice on their housing status. But certainly I’d be making this argument to the DWP. As we know in housing law, if you make a five-pronged tool for digging and call it a spade, it’s still a fork.

Brian Fletcher
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Welfare Rights, Wigan & Leigh Carers Centre, Wigan

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Timothy Seaside - 14 September 2020 01:28 PM

It doesn’t sound to me like this charge can properly be called mesne profits. It can only really be mesne profits if they’re trespassing, but you say the landlord has agreed they can stay. This means the landlord has granted them a personal licence, and these are licence payments. .

Unfortunately not - See Swordheath Properties Ltd v Tabet [1979] 1 W.L.R. 285

Timothy Seaside
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Housing services - Arun District Council

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Brian Fletcher - 14 September 2020 03:24 PM

Unfortunately not - See Swordheath Properties Ltd v Tabet [1979] 1 W.L.R. 285

I’m not sure what you’re saying. Swordheath, as far as I can see, is a case about establishing mesne profits as damages for trespass - which is entirely consistent with my point. I am saying that it appears that the school has given permission for these people to stay for the time being - which means they can’t be trespassers - they have a licence to occupy. The proper legal construction is not that the landlord is entitled to damages for trespass (mesne profits), but to a licence fee (use and occupation charge).

nevip
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Welfare rights adviser - Sefton Council, Liverpool

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Owen_Stevens
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UC London Adviser, CPAG

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This is not especially related to this conversation but am putting this here as it’s vaguely related and as good a place as any…

I think this is a new bit of guidance (new to me at least): https://www.whatdotheyknow.com/request/721871/response/1720659/attach/4/Claimants%20who%20must%20pay%20housing%20costs%20without%20having%20a%20tenancy.pdf?cookie_passthrough=1