5th December, 2021
A First-tier tribunal recently supported my elderly client’s appeal for Housing Benefit, backdating the claim to February 2021. The HB arrears, accruing from the backdating of the award, will completely clear rent arrears, which had built up during the months we waited for the tribunal hearing. More importantly, the outcome will permit her continued residence, in a property (london apartment) she has occupied since 2008, and which had £60,000 in adaptations, specifically for her benefit, in 2019.
In contrast, had she lost her appeal, the daughter (landlord) would have been forced to sell the apartment, causing my client a future of living in “temporary accommodation” provided by the same council who had wrongly refused her claim.
My client moved into her ground-floor flat in 2008. It was purchased by her daughter, who allowed her to live there rent free until 2020. My client had suffered from ill health for 30 years and relied on her daughter to provide support and care, when needed. Her income consisted of state and occupational pensions, plus DLA (mobility).
The rental charge of £1000 pcm only arose, when her daughter and son-in-law’s businesses were crippled by the Pandemic (Lockdown) leaving them with virtually no income and incapable of meeting their monthly commitments, including two mortgages; their own and one secured on my client’s home.
When Lockdown kicked in, her son-in-law’s NHS related business was temporarily forced to close. Her daughter’s book-keeping income was similarly affected, as her client’s businesses were closed. In the first 3 months, the son-in-law’s income dropped £20,000.
My client offered to assist by making payment of £500 pcm towards rent. She also had a conversation with a Benefits Advice charity who advised her to claim Housing Benefit.
Housing Benefit Claim
Following her application, she was invited to an interview with a HB officer, which resulted in her claim being refused on the basis, the AST agreement betwen the parties was deemed Non-commercial. She lodged an appeal, with my assistance. The Council responded, by asking a series of additional questions, claiming this was part of its standard “reconsideration stage”. I responded by pointing out, HB legislation doesn’t make any provision for an intermediate stage, consequently, it should immediately process the appeal, or anticipate the wrath of the LGO who had severely criticised this form of HB malpractice in 2020.
However, instead of expediting the case to the Tribunal Service, the Appeal Officer, effectively impeded its progress by a further 3 months, despite me writing to the Council’s Chief Executive, on two occasions, referring him to the LGO report which supported my client’s position.
Referral to the Tribunal Service
Once the case was referred to the Tribunal Service, I asked for it to be expedited, on the basis there had already been a 3-month delay and any further period would be prejudicial. Thankfully, the appointed Judge agreed and instructed an early video link hearing.
The tribunal hearing was arranged 6 weeks later and commenced with the Judge asking the Council’s Presenting Officer to justify his council’s claim that the tenancy agreement was non-commercial. Immediately, the PO struggled to produce a credible explanation and during his exchanges with the Judge was forced to make several important concessions.
My client and her daughter were then asked to clarify their position. It was clear from the Judge’s reaction, he was impressed by both their testimonies. In his written decision he stated – “The Tribunal asked both the appellant and her daughter a series of questions to establish the facts. It found them both to be credible witnesses”
Surprisingly, I was not questioned on any aspect of my detailed submissions, other than when the Judge asked me to confirm my understanding of the associated law and cited caselaw.
“The Tribunal was satisfied that not only was there an intention to create legal relations on both sides but there was noting untoward in the facts that would indicate non-commerciality of such an agreement”.
The Council must now implement the Tribunal’s decision.
Common Council & DWP “mindset” of refusing such claims
Despite both councils and DWP (Universal Credit) being given clear guidance on how to deal with such claims, both tend to ignore it, refuse claims, and await a reaction from the claimant before determining the next step.
Anyone experiencing similar problems should seek professional advice, as the law, whilst often supportive of the claimant’s position, is complex and ordinarily involves the need to present your case in writing and, in person, to a First-tier tribunal.
UC Advice & Advocacy Ltd