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Couple living apart
Client are a couple with 3 children. They were both unemployed. They have both lost their jobs this year. The man only recently lost his job so she widened her job search and has found a job in Wales. She intends to move to Wales with her 3 children and live with her parents. She said that her partner has no intention of mving to Wales and will continue to look for work in Liverpool. She has no intention of returning to Liverpool to live with her partner, although she still considers him to be her partner and still intends to visit him for holidays and the odd weekend. I can see no reason why these two people should be treated as a couple for JSA or Tax Credit purposes. I see no reason why they cannot make individual claims for these benefits as from the date she moves they will be maintaining completely separate households.
My client is the tenant of the property they have been living in and that her soon to be ex-partner intends to continue to live in. She said that when she took the tenancy she was offered a right to buy if she did so within 5 years. She always intended to do this and now that she has another job she still wants to buy. The deadline for buying the property is next year.
She asked me if her ex partner could claim Housing Benefit while he is out of work. As far as I can tell the regulations would not prevent her ex-partner from claiming Housing Benefit even though he is not the tenant. I believe he can be treated as being liable for the rent if she is not paying it. Can anyone forsee any difficulties?
Everything you say is absolutely right, particularly the bit about him being treated as liable for her rent. But you should expect the DWP and/or Council to take a lot of convincing that they really have ceased to be a couple for benefit purposes and to make him work hard for it. The timing will seem like a fortuitous concidence - just at the moment when she obtains a source of income, lo and behold they cease to be a couple. The obvious counter to that is yes, well the income is in Wales so what else is she supposed to do? The two events go hand in hand, they wouldn’t cease to be a couple if it wasn’t for the income. It’s not a case of “I have found a job so lets pretend we don’t live together anymore” - here the job is the very reason why they won’t live together any more.
Where exactly in Wales by the way, if you are able to say without giving away personal details? Bearing in mind that Flintshire is almost part of the Liverpool metropolis, you may find the Council or DWP are sceptical about just how long she will stay away each time - a commute might be feasible.
It will come down to a subjective judgement as to where she lives now. The more of her life that she shifts to Wales, the more likely she is to convince them. One very powerful point in her favour will be if the children are enrolled in local schools in Wales.
Is she a private tenant in Liverpool? If so he is only going to get the one-bed LHA.
Finally, if he is on DWP means-tested benefits (which I assume he will be either now or when his JSA-c runs out), a positive decision by DWP to award him JSA(ib) as a single person will trump any different view the Council might have taken. The is the Menear principle, after R v Penwith DC ex p Marjorie Menear (all income and capital disregarded if claimant gets DWP means-tested benefit, so it doesn’t matter if LA think they are a couple). But if DWP decide to aggregate, that doesn’t bind the Council, they could still take a more generous view and treat him as single.
[ Edited: 21 Aug 2013 at 07:13 pm by HB Anorak ]Do they have any joint finances - bank accounts, loans, credit cards etc? If they do, & they don’t separate them Tax Credits are likely to jump on them very hard as still being a couple. Also she must go on the electoral roll in Wales & make sure all her letters forms etc. are sent to her there & not at Liverpool. Some formalised arrangement for access etc. to the children should also be set up.
The thing that really bothers me about this is that she still regards him as her partner & intends to visit him for holidays etc. If this is a matter of making sure he keeps in contact with the children then it is probably OK but what if she is questioned & says she regards him as her partner?
The thing that really bothers me about this is that she still regards him as her partner & intends to visit him for holidays etc. If this is a matter of making sure he keeps in contact with the children then it is probably OK but what if she is questioned & says she regards him as her partner?
Indeed. It would be a borderline case and it’s certainly possible but I think it’s also certainly possible for the DM or a Tribunal panel to legitimately find them LTAHAW. Were they to walk into a hearing and state that they are in a relationship, still love each other, still consider themselves a ‘couple’ etc. then I would not fancy their chances despite the financial arrangements.
Indeed. It would be a borderline case and it’s certainly possible but I think it’s also certainly possible for the DM or a Tribunal panel to legitimately find them LTAHAW. Were they to walk into a hearing and state that they are in a relationship, still love each other, still consider themselves a ‘couple’ etc. then I would not fancy their chances despite the financial arrangements.
Why? Assuming they maintain two separate households (something which it ought to be easily possible to establish factually) in what way in law would they be LTAHAW? How would the situation be legally different to that of a couple who have met relatively recently, who maintain separate households and who spend the night at each others’ residence several nights a week? Or who meet on holiday but live at opposite ends of the country and then choose to spend future holidays together? Could these ‘legitimately’ found to be LTAHAW?
On another note though, if she does do right to buy in the future, he is going to be caught by reg. 9 (1)(c)(i) of the HB Regs - liability to former partner - and precluded from HB entitlement. Bear in mind this is not a ‘contrived tenancy’ or ‘non-commercial agreement’ case where there could be arguments either way - if she does RTB, he will be caught by the reg. and that’s an end of it.
Thanks for your replies.
She is moving somewhere on the West Coast, she said it’s a good 2 hours drive. The children would be enrolled in school and the reason she has no intention of returning is that she does not want to move them again, children are 9, 8 and 1. She is a social tenant in Liverpool so he would get full HB minus the under-occupancy charge.
It is making separate claims for JSA and Tax Credits particularly, that are her priority. She says quite rightly that she will need to pay for child care while she is working in Wales and she will not be eligible for a child care element in her working tax credit if they claim as a couple and he is not working.
I haven’t looked at any regulations yet but I did not really anticipate any problems with JSA/Tax Credits. A quick look at CPAG seems to suggest that they no longer count as a couple if they have no intention of living together again (p.213) and that to be classed as a couple they must spend the majority of their time (p.220) living in the same household (p.210). It seems to be the living arrangements that matter not whether or not they love each other or regard themselves as a couple. I guess that you are bringing up the fact that they still regard themselves as a couple because they have to convince the relevant authorities that they no longer live together? I see your point about moving as much of her life with her as possible. It would not look convincing if her post still got delivered to her previous address. Surely it should be enough to convince them that they are separated if she is working in a different part of the country, spending most of her time away from him and has moved the children with her?
It is the Housing Benefit that was causing me problems. Mainly because it seemed to rely on him remaining liable for paying the rent because she is not paying it. She told me that if he could not get Housing Benefit she would pay the rent because she wants to buy the house. It just seems like it may invite problems but I guess if she is happy to pay the rent then it may be worth him making a claim, particularly if he is already getting JSA.
Sorry, never been that great at remembering or deciphering abbreviations - what does LTAHAW mean?
Thanks again,
Theresa
Thanks for your replies.
Sorry, never been that great at remembering or deciphering abbreviations - what does LTAHAW mean?
Thanks again,Theresa
Living Together As [if] Husband And Wife
I may be overstating it, but my main concern is the attitude of the Tax Credit people. The cases I have dealt with are ones where a couple claim has been ended due to separation & replaced by a single claim. Tax Credit Office then find out - often from a Credit Ref. Agency check - something they consider shows an ongoing relationship. This can lead to all manner of problems - including the single claim being ended & all the payments under it being treated as overpayments.
In your client’s case it may be OK as she & the children will be living in another part of the country but she has got to make absolutely sure all links - especially financial - are broken. This could be difficult as she still has the tenancy of the house he will be living in - & is even saying she may pay the rent on it. The latter could definitely be seen as a financial link. And it could become even more difficult if she or the partner made it known they still regarded themselves as being a couple. I wouldn’t like to predict the Tax Credit peoples’ reaction if they discovered all this.