new HB claim

my client moved 6 weeks ago into LA accommodation with his mother, mother was the tenant and the HB claimant, mother has now died, LA unlikely to pass tenancy to client under succession rules, the question is can my client make a claim for HB, he currently get income support as a carer for his mum, this will stop in 6 weeks . Can my client claim HB as a homeless person if he is not offered the tenancy by the LA, he will be homeless in those circumstances. i expect the LA will let him stay in the house and charge him for living there without giving him a proper tenancy until the succession issue has been sorted,

There’s no possibility of a HB claim under normal rules. Whilst HB can be awarded in respect of ‘temporary accommodation’, I don’t see how that could cover this situation without some unconvincing mental gymnastics.

Help with housing costs ought to be available (whether as use and occupation or an assumed liability) but it would be through UC.

I don’t think that succession gets you anywhere in a case like this given that they have only been there 6 weeks. Is there some reason why the property wasn’t offered to them as joint tenants initially? If its a bungalow say.

Thanks Elliot, I found this in the HB subsidy rules 2017 , updated in 2021

“,the accommodation has been made available to that person, by the LA, to either discharge a statutory homelessness function or to prevent the person being or becoming homeless”

if my LA lets my client stay in the property to avoid becoming homeless would that not count for a new HB claim, I am told it would be a reason for precluding him from UC housing costs as temporary accommodation is not paid for by UC in this case,  we specialize in putting our HB team over here through mental gymnastics, this is the client I had earlier this year who was refused HB as his landlord did not provide a proper notice of rent increase, we won that appeal though most of the received wisdom at the time suggested it was a tenancy issue not a HB issue

In terms of HB I’d agree with Elliott - it’s pretty unlikely that the LA would provide the accommodation under Part VII of HA 1996 (and they actually can’t until the old tenancy has been determined one way or another). It’s much more likely that they (as a landlord, rather than as a homelessness authority) would allow him to stay for a while on a personal licence. In some ways it’s a matter of construction, but I can’t see any reason why they’d want to call it TA - and I can see some possible reasons why they a) couldn’t, and b) wouldn’t want to. So I think it’s UC.

Going back to succession, I know it’s not what the question is about, but there are some surprising points that might be worth noting. Firstly it doesn’t matter in itself how old the tenancy is; rather it’s how long they’ve lived together. And secondly with an introductory tenancy, even post 2012 (when statutory succession rights on secure tenancies became limited to just spouse, partner, etc.) a family member such as a son can succeed to an introductory tenancy. It’s more complicated if it’s a Flexible tenancy. The main advice I’d give is to get specialist housing advice.

I would argue that there’s a risk of missing out on benefit if he only claims HB. What if they suspend payment while they wait to find out whether it was succession, and two months down the line it is finally established that there was succession (so it definitely couldn’t be HB)? He misses out on two months of housing costs.

Thanks TS. yes my colleague has spotted the anomaly in the succession rules, our LA says a client has to have lived in the house for one year but the rules seem to suggest they only have to have lived with the relative for one year , not in the particular house, any more ideas on getting HB for the next 6 week CA run on would be helpful, my client prefers to stay on IS during the CA run on period
Elliot, any ideas on the succession issue ???

It’s important to understand that if there is no succession then his mother’s tenancy continues until it is ended - either by notice or surrender. And as long as it continues, the LA doesn’t have any legal right to grant any sort of occupation to anybody - the tenancy is part of her estate, so only her executors have any legal right to say who can live there while the tenancy continues. It simply isn’t in the gift of the LA to give him any right of occupation.

If there is succession then there is no possibility of it being TA.

The only* way I can think of that it could be HB would be if the son is his mother’s executor and agrees to surrender her tenancy immediately, and the LA then allows him to remain in the property as interim (s188) accommodation. I can’t see any reason why they would agree to complicate things like this just so that he can apply for HB instead of UC. And from what you’ve said, it sounds as though the LA doesn’t fully understand succession rules, so I don’t think it’s realistic to expect them to embrace such a complicated and cunning plan.

My advice would still be to claim UC, and get specialist housing advice about the succession (the answer will depend on what type of tenancy it is, how (and when) the tenancy started, whether his mother was a successor, how long they have been living together, the terms of the tenancy agreement, etc.). And presumably, the amount of housing costs he risks missing out on is likely to be quite a lot higher than missing out on Carer’s Element in UC?

* Actually I can think of another, even more convoluted, way of doing it but it’s verging on the ridiculous.

EDIT: I should say that there could be significant risks involved in him surrendering the tenancy, even if the LA did agree to go along with such a crazy plan.

Isn’t he going to qualify for the UC carer’s element anyway?  He remains entitled to Carers Allowance for eight weeks after the death, and this satisfies the UC definition of “regular and substantial caring responsibilities” in UC Reg 30.  He should be encouraged to claim UC asap - he really is cutting off his nose to spite his face if he doesn’t.

Well, I suppose he will miss out on the part-AP in which the run-on ends - but gaining a housing element is the better buy.

TS please tell more of your other option
HB, I understand that UC will not pay housing costs if he only has permission to say in the house by the LA,
That is the rub, if he claims UC he will not get rent paid as he has no formal agreement with the LA,
He has lived with his mother for many years , she was the tenant in a private rented park home, 6 weeks ago they moved into a LA house , the mother being the tenant, she died at the end of the 6 weeks, [ the other day]

I am told tat the law has been tested re; UC housing costs in the situation where the client is just staying on a license from the LA and housing costs will not be paid by UC in that situation

UC will pay in these cases. See the guidance relating to use and occupation agreements under “Claimants who must pay housing costs without having a tenancy” here: https://www.rightsnet.org.uk/universal-credit-guidance

My understanding is that UC will routinely accept these cases as long as the landlord describes the payments as permission to occupy - it is a standard work-around the absence of any specific provision to cover use & occ payments.

As Tim says, that is probably not strictly the correct legal position anyway - a better fit would be for the claimant to be treated for UC purposes as liable to make payments under what remains the deceased mother’s tenancy, but from what I have heard verifying the payments as “permission to occupy” is the most administratively straightforward.

HB is not going to happen. 

Elliot quicker on the draw there!

Thanks Elliot and HB, looks like UC may be an option , lets see if the LA grant succession !!!!!!!!!!!!

HB Anorak - 10 January 2023 02:32 PM

Isn’t he going to qualify for the UC carer’s element anyway?  He remains entitled to Carers Allowance for eight weeks after the death, and this satisfies the UC definition of “regular and substantial caring responsibilities” in UC Reg 30.  He should be encouraged to claim UC asap - he really is cutting off his nose to spite his face if he doesn’t.

I was probably underthinking this - I was reasoning that he doesn’t satisfy the conditions any more, but of course he satisfies the conditions for the run on (and obviously must satisfy the conditions or he wouldn’t be getting Carer’s Allowance - which is part of the argument I always use when somebody is getting CA but hasn’t been given the Carer’s Element). So yes, even less reason to hold off applying for UC.