22nd February, 2019
DWP’s latest Landlord newsletter refers to “untidy tenancies” and explains how, in some cases, DWP’s “Decision Maker” may exercise discretion, regarding the amount of “housing costs element” allowed in cases of separation etc. to permit a joint tenant to be able to meet the contractual rent and remain in the property.
The article explains:
“An ‘untidy tenancy’ is one in which a joint tenant(s) has left the property and is not paying rent, if for example, a relationship has broken down, but the landlord is unable to remove them from the tenancy for legal reasons.
Universal Credit would normally divide the rental liability equally among joint tenants when calculating housing costs. Universal Credit provisions can sometimes allow a claimant to be treated as liable for rent which they do not have a formal liability to pay.
In such ‘untidy tenancy’ cases, this provision can be used to allow the housing costs to be calculated based on the full rent, despite a claimant having shared liability for the rent under a joint tenancy. These circumstances occur more often in the social rented sector.”
It appears, the note is designed to address situations, mainly in the social sector, where:
- Couples separate; one member of the couple dies, moves away or is imprisoned for more than 6 months, leaving the remaining member, solely liable or must assume liability for the rent in order to remain there; and
- In joint tenancies, involving two or more tenants, “jointly & severally liable” for the rent, with each claiming separately (e.g. two brothers; sister and brother; 2 unrelated persons) and one vacates permanently, the other assumes responsibility for the full rent.
Whilst the note is intended to be helpful its author appears to be a bit confused over the issues of “joint & several liability”, being “treated as liable” and what the UC regulations currently allow.
In the case of couples, the UC regulations refer to them as “joint renters” and provide that the contractual rent can be paid (less any under-occupation and non-dep deductions). In cases where both partners are listed on the tenancy agreement they will be “jointly & severally” liable for the rent, so, in the event they separate, one dies or goes into prison, the other automatically should be able to claim the contractual rent, less the deductions mentioned above. There is no need to “assume liability” as the liability already exists.
Alternatively, if the tenancy is in the name of one member of the couple and he/she leaves, dies etc. the other, in order to remain there, can qualify for the “housing costs element” even though they are, at that point, not legally liable. The regulations allow them to be “treated as liable”, like the rule that has applied to Housing Benefit for the past 30 years.
Lastly, in the case of “joint tenants” who do not form a couple, but are nevertheless “jointly & severally” liable for the contractual rent, each when they apply for housing costs should quote the full contractual rent, not their share of it. DWP is expected to then apportion the rent equally. However, when one leaves, goes into prison or dies, the remaining joint tenant can also be paid the contractual rent, due to their “joint & several liability”. In their case, there is no under-occupation penalty applied if the joint tenancy still exists.
Couples, living in Private Tenancies can, in some cases, benefit from similar rules, although in their case, the contractual liability may well be “capped” by Local Housing Allowance (LHA) rules. For example, if the couple split, the remaining member would claim as single person, and, if under 35, would be restricted to shared accommodation rate unless they fell into one of the excepted groups.
I hope this helps your understanding of this important issue. Contact me if you requre further clarification firstname.lastname@example.org.
UC Advice & Advocacy Ltd.