29th April, 2020
Good afternoon
I recently represented a Housing Cooperative in a dispute over a £45,000 Housing Benefit Overpayment. The Co-op and its elderly tenants had appealed the Council decision to hold them responsible for the sum, to a First-tier Tribunal. A hearing was held but had to be adjourned because the Judge felt the tenants had not been given enough time to secure legal representation.
Due to the COVID crisis, the re-scheduled hearing was further postponed. So, I suggested making an approach to the local Council Leader. My clients agreed, to what is, a rather unconventional way of addressing an HB dispute, but I’d achieved some success with other cases taking this tack, and felt it was worthwhile trying. I crafted the submission in the Co-op Chairperson’s name, avoiding any legal jargon, preferring instead to focus on the impact repaying the £45K would have on both the elderly couple and the Co-op itself.
Background
The overpayment arose when the Co-op and its elderly tenants decided to add 3 grown up sons and their daughter-in-law to the tenancy agreement, in 2012, making each individually and severally liable, for the rent. Up to that point, the elderly parents had been held liable for the full rent. The addition of the siblings should have resulted in an apportionment of the liability, on a (40-20-20-20% basis) causing a reduction in the parent’s HB award.
The overpayment was discovered, late 2019, when my Co-op clients alerted the Council, after they received a similar overpayment demand, for a much lesser sum, in respect of another of their tenancies, involving separate households, forcing them to review their portfolio of HB cases. The Council investigated and when it discovered the full facts; decided the “eligible rent” should have been reduced to an appotioned rate; created an overpayment going back 8 years; and made a decision to hold both landlord and tenants culpable for the £45,000 overpayment.
Submission
I was confident my clients would be exonerated from any blame, as the overpayment was clearly caused by a failure on the part of the tenants, reporting the change in their tenancy arrangements. This is something they agreed to do when they initially made their HB claim and in their subsequent re-applications, none of which my clients had participated in. Reporting a change in tenancy arrangements is something they were specifically obliged to do. In contrast, as the Co-op hadn’t been notified of how the HB calculation had been originally determined, it could not be expected to notify the Council of the “change in circumstances”, especially as it had no prior knowledge of the potential apportionement.
However, I was also sympathetic to the elderly tenants’ position, as the worry caused by the thought of having to repay £45,000 was causing them great anxiety and more than a bit of household disharmony. So, in my submission to the first-tier tribunal Judge, I included a secondary argument, referring the Council to a decision of Upper-tier Judge Edward Jacobs where he explains, the HB Regulations 2006 provide a discretion to council Decision Makers, when considering the question of how to apportion the “eligible rent” in joint tenancy situations, involving separate “benefit households”. The case cited had many similarites to the case of the elderly parents.
Adopting the eminent Judge’s approach, I pointed to some of the factors which the Council should have considered before reaching any decision in the case of the elderly couple.
AS well as being elderly, they were both in poor health; solely dependent on Pension Credit & DLA (Care); the siblings showed little interest in accepting their individual and collective liability for rent; Regulation 9 (1) (g) provides that as the siblings were previously resident in their parents’ home, as Non-dependants, they could not, ordinarily, be treated as liable for the purposes of HB; the couple had lived in the subject property for 30+ years, had raised their own and their children’s families there; the family were used to living in that home, were familiar with the locality and would, no doubt, be unwilling to move voluntarily or through eviction due to this debt; it was unlikely the parents or, indeed the siblings, had any sense of what implications the move to the 5-way joint tenancy would have on their HB entitlement; had they grasped the significance, I doubted they would have taken the regrettable step. Lastly, and most importantly, the debt arising from this overpayment was something that had already caused them & their adult children, stress, anxiety, frequent arguments and could potentially have lead to the loss of their tenancy and need for the Council to consider the respective position of each family unit, under Homeless Persons legislation.
Outcome
To my surprise, my landlord client’s delight, relief of the elderly tenants, the Council agreed to revise its earlier decision; effectively making the parents liable for the full rent, as before; re-establishing the 100% award; wiping out the full overpayment, and bringing a successful end to the dispute, thus avoiding the need for another Tribunal hearing. The apportioned rent will apply from a current date, with each of the Joint Tenants being invited to make their respective claims.
Bill Irvine
UC Advice & Advocacy ltd