Is there such a thing as an untidy tenancy in HB?
Client lives in supported accommodation. He was claiming housing benefit and ESA for himself and partner. They have recently separated and his ex-partner has claimed UC whilst still at the address but failed to claim housing benefit despite being told to for her share of the rent.
The original tenancy is now in the sole name of client and ex-partner has been given the tenancy of another property. Is there anyway that 100% of the Housing Benefit claim could be paid to client for the period that partner failed to claim in her own right?
I really don’t like the term “untidy tenancy” - it sounds pejorative - likes it’s the person’s fault that their relationship has broken down, or partner has died, etc. Even UC don’t call it that any more - they use the term “absent joint tenancy” which I think is an improvement.
The rules for being treated as liable for housing costs in HB are similar to UC - Reg 8(1)(c) is probably what you want (not (b) since they separated).
Are you saying that your client’s HB claim has continued through all of this and he was getting 50% of the rent covered from when they separated until he became sole tenant?
For your client to be treated as liable for his ex’s “share” he has to fulfill the requirements of Reg 8(1)(c) - if it doesn’t get paid he risks eviction (tick), the ex isn’t making the payments (tick), and either he was a former partner of the person (tick) OR he’s another person who it’s reasonable to treat as liable (not tick). So I think it’s probably reasonable to argue that it doesn’t matter whether the ex should have claimed HB - the fact is that she wasn’t paying the rent and so that condition is fulfilled. I don’t know if there’s any caselaw on this.
In the typical “untidy tenancy” situation, A and B are joint tenants. B moves out. Both A and B remain jointly and severally liable for the full rent.
For UC purposes, A’s HCE would, by default, only pay 50% of the rent however it would be possible for a discretion to be exercised to apportion the rent differently (para 24, sch 4, UC Regs).
For HB purposes, the LA are required to apportion the rent to the claimant “having regard to all the circumstances, in particular, the number of such persons and the proportion of rent paid by each such person” (reg 12(5) HB Regs)
The end result is the same - the DWP or the LA is perfectly well able to say “A is the only one living in the property, they are contractually liable to pay the full rent and B is not going to pay it as they don’t live there anymore, so we ought to pay the full rent to A”. That is what you are asking the LA to do in this case.
I don’t think it is necessary to bring reg 8(1)(c) into it, because it doesn’t make sense to ‘treat’ A as being liable for the rent - they just are liable for it because of how joint tenancies work. But Timothy’s analysis in any case brings you to the same result.
Where I am getting a bit stuck is on the facts of your case. It seems to be implied that your client and the ex-partner were originally joint tenants. Are you saying that they then remained living separately in the property after the breakup (which seems to make sense to your reference to Mrs being advised to claim HB)? In which case it is a bit different to the standard “untidy tenancy” situation because both parties are still living in the property. This may go to the question of whether it is reasonable to apportion the whole rent just to your client.
I can’t (and wouldn’t want to) disagree with Elliot’s analysis or his comments about liability under a joint tenancy. But I read this as meaning they both continued to live there after separation. On that basis, I prefer Reg 8 to Reg 12. Reg 8 is a way of saying the ex’s liability can be treated as the client’s - and doesn’t require any assessment of why they’re not paying, or even where they’re living. But I think it would be hard to argue under Reg 12 that the rent should be apportioned 100% to the client while the ex is still living there and still able to claim HB to cover her share.
Thank you everyone for your replies and especially for pointing out the new expression for untidy tenancies which I hadn’t picked up on.
On the apportionment v treat-as-liable point, this was discussed in CH/3376/2002:
“Joint tenants are each severally liable for the whole of the rent. That satisfies both section 130(1)(a) and regulation 6(1)(a). As far as the claimant is concerned, it is unnecessary to interpret regulation 6(1)(c)(ii) to produce that effect.”
[references to HB Regs 1987 - would now be Reg 8 of course][ Edited: 5 Jan 2022 at 02:59 pm by HB Anorak ]
Thank you for that, Peter. I’ve just had a chance to read that decision and it’s cleared the question up entirely for me!
So I think the answer for Liz’s client is likely to be that he won’t be able to get a 100% apportionment - given that the joint tenant continued to live there and could have claimed HB herself. But it’s always worth asking - especially where there are questions of disability to consider.
An alternative approach would be for your client to apply for a DHP. Strictly speaking it probably shouldn’t apply because he has already received his full eligible rent in HB. However, the LA may be willing to fudge it slightly and consider it as a one off homelessness prevention DHP rather than a sum relating to ongoing periodic payments.