7th July, 2019
Appealing Housing Benefit (HB) decisions is something I do on a weekly basis, mainly for landlord clients but, on occasions, when instructed by a landlord, I will represent their tenant(s). In this connection, I recently helped an elderly tenant and her landlord daughter successfully appeal a decision by one of the London Boroughs, where the HB claim was refused on the basis it had been contrived by both tenant and landlord to abuse the scheme.
My client’s husband died 2 years ago. From that date she could no longer cope on her own. She was living in Manchester and had been periodically hospitalised for mental health and physical problems. Her daughter, an only child, resided in London. The distance between made it very difficult for the daughter to assist and on one occasion, she had to call 999 from London to secure her mother medical assistance in Manchester.
Initially, the daughter had tried to secure accommodation in Manchester which also provided care & supervision. However, she discovered there was a 3-year waiting list. In view of this, the daughter purchased a private retirement property, warden assisted, the only development of its kind which was affordable to her. As the mother was already receiving assistance with Housing Benefit, Council Tax etc., neither anticipated any problems with the mother’s attempt to secure Housing Benefit and Council Tax Reduction for the new property.
On receipt of the mother’s claim the Council issued a questionnaire to landlord. The daughter responded stating, amongst other things:
- Having been a landlord for a few years and a member of the RLA she could confirm that she had a legal binding tenancy contract with her mother, drawn up by her solicitor and signed.
- From the start of the AST her mother had been paying the rent out of her income and capital but in the case of the latter, this was now dwindling.
- If her mother failed to pay future rent and fell into arears then she would need to sell the property, rendering her mother homeless and in priority need for accommodation.
- The property had been purchased especially for her mother, hadn’t been advertised for let, as there was never any intention to offer it to anyone other than her mother.
- Her mother was willing to cover any shortfall of rent that may arise from a limited award of HB.
In our opinion, these answers should have extinguished any doubt the Council may have had in relation to the questions of liability, commerciality and overall legitimacy of the mother’s claim.
Contrived to Abuse the HB scheme
The Council’s decision however was to refuse on the grounds the mother and daughter had set out to abuse the HB scheme, citing Regulation 9 (1) (L).
Appealing the Decision
I submitted, that if Parliament had wished to exclude claims from family members in these circumstances it would have specified such in the Housing Benefit Regulations 2006. The fact it chose not to, with DWP also issuing a “Good Practice” note to Council adjudication staff, advising there is nothing wrong with paying HB in these situations, clearly hadn’t been considered by the Decision Maker.
One of the Upper-tier Judges, Mr Edward Jacobs had also provided helpful advice to tribunals when he pointed to the following considerations: a) The owner’s/landlord’s need for rent); The claimant’s need for accommodation; and c) The history of the agreement(s) between the parties and primary purpose for providing the accommodation.
The Council had invoked Regulation 9 (1) (L) or, the catchall provision, as its sometimes referred to, as justification for refusal. This regulation deals specifically with the question of “contrivance to abuse the HB Scheme”. Commissioner, now Judge Jacobs dealt with the meaning of “to take advantage of the scheme” in one of his reported decisions. He said, it means something akin to abuse of the scheme or taking improper advantage of it but it did not mean “making the most of the opportunities that it presents”. At paragraph 19 of the same case he went on to comment – “Many landlords use the HB scheme as a way of financing the purchase of the property, as an investment or of financing a business, but it is not the function of Regulation 9 (1) (L) to impede the proper operation of the private rented sector”.
The caselaw also makes clear: – “Finally, there is no presumption against the claimant that she is guilty of abusing the scheme………. once it is established, she is liable to make payments, the burden of proof is on the LA to show some grounds for believing abuse exists”.
In my client’s case there was absolutely no evidence to suggest the tenancy was borne out of a singular attempt to “abuse the UC scheme”. We maintained the weight of evidence clearly pointed, to there being in existence, an agreement which was legally enforceable and wholly commercial in its terms. In contrast, we saw little merit in the Council’s assertions, the parties were simply attempting to abuse the HB scheme. I also added, as I’ve done in other similar cases, that what was at play was an all too common “mindset”, which is applied by councils, UK wide, to tenancies involving “close family” members. This, despite the DWP “good practice” note we enclosed with the appeal letter, which offers guidance to council Hb staff, contrary to what’s happened in my client’s case.
Thankfully, the Council’s decision was overturned, with Housing Benefit and Council Tax Reduction being awarded and backdated to the date of claim in November 2018.
If you’re trying to assist one of your tenants who is affected in this way, please get in touch 07733 080 389 or firstname.lastname@example.org
UC Advice & Advocacy Ltd