Good morning

A London based landlord client asked me to assist two of his joint tenants challenge an adverse Housing Benefit decision, explained below:

Council’s view – “You are currently registered as non-dependant under your brother, Mr Sandilands’s active claim for Housing Benefit.  According to the rules you are not eligible for Housing Benefit if you were, at any time before the creation of the liability, a non-dependant of someone who resided in the property and that person continues to reside in the dwelling.” 

The rule the Council is referring to has been around for 30+ years, but there exists, a get out of jail exception, which the Council had clearly not considered. Regulation 9 (3) of the Housing Benefit (General) Regulations 2006 provides, that Regulation 9 (1) (g) – “SHALL NOT apply in a case where the person satisfies the appropriate authority that the liability was not intended to be a means of taking advantage of the housing benefits scheme.”


The property was first tenanted by the brothers’ now deceased mother, in or around 1950. It consisted of three storeys of a 5-storey house. The mother’s tenancy was protected under the Rent Act 1977. After her death in 2004 the elder brother became an Assured Tenant under the law of succession. At that time, the brother’s sister resided with them. Together they all shared the cost of the household bills and daily chores, with the elder brother, as sole tenant, receiving assistance from Housing Benefit.

The rental charge in 2004 amounted to £100 per week as assessed by a Rent Assessment Committee. In 2006 the rent was increased to £200 per week. The rent remained at this rate of £200 until 15th January 2020 when the brothers agreed to an increased rent of £2200 per month. The new rent equated to £507 per week and took the form of an AST in the names of both brothers as their sister had since died. The main reason for creating the joint tenancy was to comply with one of the terms of a Council Improvement Order, served on their landlord and provide security to both brothers as they got older. One was 75 while the younger was 66 years old.

The steep rise in rental charge was directly related to the high level of investment made by the landlord to comply with the Council order and the fact, the previous rent hadn’t been increased for 14 years. The new charge of £2200 was also significantly less than the equivalent LHA rate for two brothers, occupying the London based property on a “common household” basis.

Had the brothers considered the rent increase exceptionally high they would simply have challenged this. But both agreed it was not. The younger brother was also pleased to secure his own equal share of the tenancy, as it provided more rights than simply being treated as a “permitted occupier” as he had been, for many years.

So, my clients challenged the adverse decision on the basis: the creation of the joint tenancy was due to the various changes in circumstances mentioned earlier i.e. sister’s death; the extensive renovations that had taken place in the property; the increased rent arising from the landlord’s investment; their long term practice of sharing household costs & household chores on a 50/50 basis; the need to comply with the improvement order and provide security of tenure for both brothers as they got older and more vulnerable. These were the primary factors which led to the creation of the joint tenancy.

In contrast, there was never any intention on their part or that of their landlord, to take unfair “advantage of the HB scheme”, nor was there any evidence to support the Council’s claims in this respect. Upper-tier caselaw makes a distinction between Landlords/tenants making best use of the scheme and someone trying to abuse it. If anything, the evidence pointed to the opposite being true. Had “taking advantage” been the landlord’s motive, he could have pitched the new rent at £2773 or £3163 (30th percentile) based on the “common household” rate, explained in both regulations and associated “Housing Benefit” guidance.

Council’s decision

On receipt of my clients’ appeal, a more senior officer of the Council revised the earlier decision, in my client’s favour, much to the relief of the brothers and their landlord.

If you encounter any difficulties with a decision made by either local councils or DWP and you need assistance in challenging this, please email me

Bill Irvine

UC Advice & Advocacy Ltd