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UC housing costs no tenancy agreement

Diogenes
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my client inherited a 25% share of a HA property, he moved in and so is liable for the rent element ,its part owned part tenancy, the HA landlord cannot give him a tenancy contract yet they say as the owner occupier part has not cleared probate,
UC will not pay housing element as cl has no proof of liability,
I know HB can be paid in these circs but can UC and what is the reg that applies if anyone knows

Thanks you

Martin Williams
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I suppose it is Para 2 of Sch 2 to the UC Regs:

Failure to pay by the person who is liable

2.—(1) A claimant is to be treated as liable to make payments where all of the conditions specified in sub-paragraph (2) are met.

(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.

(3) In determining what is reasonable for the purposes of sub-paragraph (2)(d) in the case of owner-occupier payments, regard may be had to the fact that continuing to make the payments may benefit the person with the liability to make the payments.

I guess the claimant is not currently liable as the estate of the deceased still in probate- if wrong on that then you don’t even need para 2 - claimant simply is liable. One question here re application of para 2 is who is liable- not the deceased person (they are dead). Presumably the estate is liable at present. So if the executor is not making payments then claimant fine. Of course if claimant is the executor then presumably still cannot make payments out of the estate (as no probate) so para 2 is ok anyway.

UB40
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It depends on how the HA class his occupation. If he has been given permission to occupy whilst a possible tenancy is being investigated then he can claim UC housing costs under the Use and Occupation rule. If the HA has not given him permission and he is classed as a trespasser his payments to the HA are mesne profits. Mesne profits are paid under HB but are excluded in UC.

Diogenes
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client owns 25% of the flat, he is living in it as an owner occupier but it is part rent part owned , so ??????
The landlord sems to be holding out on giving him a tenancy until they see the outcome of probate !!!!!

past caring
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So what? You seem to be missing out on/unaware of some basic stuff here…..

If the estate has yet to clear probate (i.e. the owner occupier part of the accommodation) and the HA will not create a tenancy until it does, then on what legal basis is he occupying the accommodation? More importantly, on what basis is the HA demanding payment of the 25% portion? It is basic stuff - for both HB and UC - that a person only has to show they are liable to make payments in order to occupy premises. So no tenancy agreement is required. This situation frequently occurs where a person has a legal right to succeed to a tenancy and where it takes the social sector landlord some time to decide their application - i.e. as per UB40’s response, the landlord wants “use and occupation” charges equivalent to the rental amount whilst it’s all being sorted out.

If the HA wants the 25% portion, they have presumably confirmed that in writing? That is all that is needed. If not, get them to confirm it in writing.

HB Anorak
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Although shared ownership is marketed as part rent, part buy, that is just a marketing gimmick and it is unhelpful when trying to understand a situation like this.

There are not two separate interests in the property - one that you own and one that you rent.  There is one tenancy, acquired for a premium (or inherited by a successor) and the rent is on a sliding scale inversely proportional to the premium.  In these circumstances I think it is more helpful to see the tenancy as being a kind of long lease.  The characteristics that a shared ownership tenancy shares with a long lease are the ones that are most relevant in this situation.

If the lease has not yet been transferred into his legal ownership, he has no legal rights or obligations vis-a vis the HA.  The HA is entitled to expect the rent to be paid by whoever is liable, and that would seem to be the executor/administrator using estate funds for the time being.  The executor/administrator, and not the HA, is in a position to grant him permission to occupy for the time being, and seemingly it has done so.  There are then two ways in which he might be eligible for UC housing costs:

- if the executor/administrator charges him rent/licence payments so that s/he in turn can pay the rent due under the tenancy.  As long as the payments are set at a level which is sufficient to meet those reasonable outgoings and no more, and subject to the LHA limit, those payments should be accepted as commercial/non-contrived and would attract a private renter’s housing element
- or, as others have suggested, if the executor/administrator is not making the payments, he could be treated as liable for those payments and they would attract a social renter’s housing element

In the meantime, the HA are right to say that they have no business charging him rent or any other kind of payment.  He is not their tenant/licensee.

Elliot Kent
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I agree with Peter and Martin.

The tenancy is property and passes through the estate. At present (we are told) the deceased occupier’s estate hasn’t been administered yet so the estate is still liable for rent. Assumption of a liability under para 2, sch 2 best reflects the situation. You are not necessarily waiting for the HA to “grant a new tenancy” in that really you are waiting for the estate to be administered and the tenancy to pass to its new owner, but in practical terms UC will want evidence that the HA acknowledges him as the new tenant.

The exception would be if your client (or someone else) is entitled to succeed to the tenancy, in which case it skips over the estate and passes automatically to the successor; however I am assuming that this is not a situation in which there is an entitlement to succeed given that you have stated that your client moved in after the death of the previous occupier.

[ Edited: 15 May 2024 at 12:16 pm by Elliot Kent ]
Diogenes
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thanks all, whoever it was mentioned teh HA demanding the 25% , that is not the issue , the client owns the 25% in whatever form /  method it is administered, long leaseish or whatever, I think I will ask the client to put a note on his UC journal to explain in as much detail as he can what is going on and ask for his “rental”  element to be paid as he need to pay rent to occupy the property,
not sure who teh exec of the estate is so need some more info on that.

very useful information thanks very much, it does seem as he should get help with his rental payments from uC from teh above

any further advice welcome

Diogenes
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oh I forgot to say , client is teh son of pervious tenant, its a HA property, not sure if he inherited the tenancy or not but in nay event the HA have let him occupy and are taking rent from him,solicitors are dealing with probate

UB40
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Diogenes - 15 May 2024 12:17 PM

oh I forgot to say , client is teh son of pervious tenant, its a HA property, not sure if he inherited the tenancy or not but in nay event the HA have let him occupy and are taking rent from him,solicitors are dealing with probate

This would indicate eligibility for UC housing costs at the present moment under the Use and Occupation rule. I would not complicate matters right now by making journal entries regarding hypothetical future probate issues.

Diogenes
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Thanks UB40 and others
Yes I was hoping that was the case,  very interesting comments re teh way joint owner/tenant system works,
he will need to ask for housing costs though as UC are not currently paying anything
maybe he hasn’t asked them for anything yet !!!!!

HB Anorak
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I would say it’s not the HA who are allowing him to occupy, it is the executor/administrator of the father’s estate.  Again, think of it as a long lease: as far as the HA are concerned, that property belongs to someone else for 125 years.  First, the tenant to whom they sold the lease; and then his successors.

The HA expects rent and service charges to be paid by the leaseholder.  At the moment, the person living in the property isn’t the leaseholder.  The lease is currently in the temporary ownership of the executor/administrator, who in due course will have to execute a deed transferring ownership to the son.

The son does not require the HA’s permission to live in the property, but he could be treated as liable for the payments due under the lease if the person legally liable for those payments (i.e the executor/administrator) isn’t paying them; or he could have a subtenancy with the executor/administrator pending legal transfer of ownership.  Either would attract a UC housing element (because it’s a shared ownership lease, it’s a renter’s element under the “treat as liable” option)

If he is the executor/administrator, that would make it very difficult (impossible I think) for him to hold a subtenancy and being treated as liable would be the only option.

[Added: In fact, come to think of it, if he is the executor/administrator does that make him liable without having to be treated as liable?  He’s not personally liable for debts of the estate, but he’s responsible for administering it; would the liability he has in that capacity satisfy the liability condition for UC I wonder?  Don’t know, straying way outside the limits of my knowledge here].

[ Edited: 15 May 2024 at 01:12 pm by HB Anorak ]
Diogenes
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OK HB AN, well a solicitor seems to be involved with probate so guess client is not the exec, anyway very useful info, many thanks, we will ask UC to pay up and see what happens,
the client is currently paying the rental himself from his savings , as often happens I suspect his sols have not given him much info on the tenancy.liability for rent etc !!!!!