Last year we sold our house because of extenuating circumstances and
were unable to lease a new property because of poor credit history.
So, our son leased a property for us, and we now live in that property
paying the rent every month.

Recently, our financial circumstances have changed and so we applied
for Housing Benefit. After providing the relevant documentation and
completed forms, we were turned down for Housing Benefit because we
are not the official tenants – our son’s name is on the tenancy
contract. The local council also stated we have no right to appeal.

Is this legally right? We cannot claim Housing Benefit because we are
not the official tenants?

Is there any where we can get legal advice from with regards to this?

Many thanks for your opinions.

brads101@googlemail.com wrote:
> Last year we sold our house because of extenuating circumstances and
> were unable to lease a new property because of poor credit history.
> So, our son leased a property for us, and we now live in that property
> paying the rent every month.
> 
> Recently, our financial circumstances have changed and so we applied
> for Housing Benefit. After providing the relevant documentation and
> completed forms, we were turned down for Housing Benefit because we
> are not the official tenants – our son’s name is on the tenancy
> contract. The local council also stated we have no right to appeal.
> 
> Is this legally right? We cannot claim Housing Benefit because we are
> not the official tenants?
> 
> Is there any where we can get legal advice from with regards to this?
> 
> Many thanks for your opinions.

You can certainly appeal, despite what the council says - do you have 
the decision in writing? If so, and you are denied an appeal that is an 
abuse of process.

To claim HB you have to have be a tenant and that tenancy has to be 
legitimate. By legitimate that means a variety of things - not contrived 
(in order to take advantage of the HB scheme), commercial and 
enforceable. Although a tenancy agreement isn't ultimately essential to 
actually get HB it certainly helps - what does your tenancy agreement 
say? Who is the tenant, who is the landlord, for example. If the tenancy 
is between your son and landlord X then your son is the tenant and you 
are living in his property, as I see it. I can understand why your son 
may have done this, to secure a home for you in light of your financial 
problems, but it does cause problems with claiming HB. You can't make 
your son your landlord to get around this either as his tenancy 
agreement should prevent him from assigning the whole of the property to 
be sublet (or else his tenancy is void) and if he was to sublet etc (eg 
claim he lived there and rented some rooms to you) then you can't get HB 
either as you can't claim HB when it is a close relative doing the 
subletting (ie the close relative lives at the same address).

I suggest you see someone asap from somewhere like the Citizens Advice 
Bureau for further advice about both your rights re: appealing and your 
rights in general in the property.

-- 
Robbie

Sorry, I should have explained is further:

Due to a low credit score, we were unable to lease a property in our
name. So our son offered to lease a property in his name. Once we
found a suitable property, he rented it in his name and we pay the
rent every month. So, therefore, we are not the official tenants
according to the local council.

brads101@googlemail.com wrote:
> Sorry, I should have explained is further:
> 
> Due to a low credit score, we were unable to lease a property in our
> name. So our son offered to lease a property in his name. Once we
> found a suitable property, he rented it in his name and we pay the
> rent every month. So, therefore, we are not the official tenants
> according to the local council.

I'm not sure if there's a way around this one as your son is the legal 
tenant and you are not. As I said in my reply, you need to seek further 
advice from the likes of CAB but I can't see a way that HB can be paid 
in these circumstances. Hopefully I'm wrong and there is a way but you 
need to seek advice.

-- 
Robbie

Echo robbie's comments about seeking local advice on this one from a
Welfare Rights worker or advice service.
Also agree that with the situation you outlined there does not seem
much you can do - apart from looking at other housing options.
Best to get it checked though...

Was initially puzzled about the "no right of appeal".

However, from the back of my mind (its not that far!) I think this
could be because you do not meet the criteria to actually lodge a
claim.
Their response in rejecting your claim is not a "decision" on you
claim - because there is no claim.
So - as its not a claim based "decision", there is no right to appeal.

On 7 Aug, 13:24, Marvin  wrote:
> Echo robbie's comments about seeking local advice on this one from a
> Welfare Rights worker or advice service.
> Also agree that with the situation you outlined there does not seem
> much you can do - apart from looking at other housing options.
> Best to get it checked though...
>
> Was initially puzzled about the "no right of appeal".
>
> However, from the back of my mind (its not that far!) I think this
> could be because you do not meet the criteria to actually lodge a
> claim.
> Their response in rejecting your claim is not a "decision" on you
> claim - because there is no claim.
> So - as its not a claim based "decision", there is no right to appeal.

If you've lived in the house for some time and have obviously been
paying the rent, albeit in your son's name, would the landlord
consider transferring the lease into your name, hence making you the
tenants? As your son was willing to accept responsibility for paying
your rent in the first place he could act as guarantor for you under
such new arrangement. This might influence the landlord to cooperate.

On 9 Aug, 10:23, fido  wrote:
> On 7 Aug, 13:24, Marvin  wrote:
>
> > Echo robbie's comments about seeking local advice on this one from a
> > Welfare Rights worker or advice service.
> > Also agree that with the situation you outlined there does not seem
> > much you can do - apart from looking at other housing options.
> > Best to get it checked though...
>
> > Was initially puzzled about the "no right of appeal".
>
> > However, from the back of my mind (its not that far!) I think this
> > could be because you do not meet the criteria to actually lodge a
> > claim.
> > Their response in rejecting your claim is not a "decision" on you
> > claim - because there is no claim.
> > So - as its not a claim based "decision", there is no right to appeal.
>
> If you've lived in the house for some time and have obviously been
> paying the rent, albeit in your son's name, would the landlord
> consider transferring the lease into your name, hence making you the
> tenants? As your son was willing to accept responsibility for paying
> your rent in the first place he could act as guarantor for you under
> such new arrangement. This might influence the landlord to cooperate.

This *could* be a good solution - however, there is a rule in HB about
a tenancy being "constructed to take advantage of the Housing Benefit
scheme".
Such an arrangement may fall down on that basis. i.e. if the only
reason the tenancy was created would be to get Housing Benefit.

HB Regs - Reg 9
http://www.opsi.gov.uk/si/si2006/20060213.htm

Obviously I can't say for sure that this would happen - that's up to
the decision maker at the HB office.

There are rights of appeal etc. Just something else to take into
account/take advice on.

In the Extra Info section of the HB claim form 
, Robbie  
writes
>brads101@googlemail.com wrote:
>> Sorry, I should have explained is further:
>>  Due to a low credit score, we were unable to lease a property in our
>> name. So our son offered to lease a property in his name. Once we
>> found a suitable property, he rented it in his name and we pay the
>> rent every month. So, therefore, we are not the official tenants
>> according to the local council.
>
>I'm not sure if there's a way around this one as your son is the legal 
>tenant and you are not. As I said in my reply, you need to seek further 
>advice from the likes of CAB but I can't see a way that HB can be paid 
>in these circumstances. Hopefully I'm wrong and there is a way but you 
>need to seek advice.
>

IMO he's de-facto liable for the rent, even if he got the tenancy under 
false pretences.  The Regs say the claimant must have to pay rent or 
something similar in order to occupy a dwelling, there's no mention of a 
contract.

However, "we sold our house because of extenuating circumstances" 
probably means he was depriving himself of capital. An HB unit with an 
ounce of sense will do almost anything, including murder the claimant, 
to avoid dealing with deprivation of capital.

-- 
Sue @ Darkside Borough Council

Local government: whenever we look like making ends meet, Blair moves the ends

Marvin wrote:
<snip>
> Their response in rejecting your claim is not a "decision" on you
> claim - because there is no claim.
> So - as its not a claim based "decision", there is no right to appeal.
> 
That used to be the case, where the claimant failed to provide enough 
info for a decision to be reached. There is a right of appeal now as the 
old regs were updated following judicial review of the issue.

In any case, here the council seem to have decided that the claimant is 
not liable to pay rent, and this would always have carried the right of 
appeal.

Marvin wrote:
> On 9 Aug, 10:23, fido  wrote:
>> On 7 Aug, 13:24, Marvin  wrote:
>> 
>>> Echo robbie's comments about seeking local advice on this one
>>> from a Welfare Rights worker or advice service. Also agree that
>>> with the situation you outlined there does not seem much you can
>>> do - apart from looking at other housing options. Best to get it
>>> checked though... Was initially puzzled about the "no right of
>>> appeal". However, from the back of my mind (its not that far!) I
>>> think this could be because you do not meet the criteria to
>>> actually lodge a claim. Their response in rejecting your claim is
>>> not a "decision" on you claim - because there is no claim. So -
>>> as its not a claim based "decision", there is no right to appeal.
>>> 
>> If you've lived in the house for some time and have obviously been 
>> paying the rent, albeit in your son's name, would the landlord 
>> consider transferring the lease into your name, hence making you
>> the tenants? As your son was willing to accept responsibility for
>> paying your rent in the first place he could act as guarantor for
>> you under such new arrangement. This might influence the landlord
>> to cooperate.
> 
> This *could* be a good solution - however, there is a rule in HB
> about a tenancy being "constructed to take advantage of the Housing
> Benefit scheme". Such an arrangement may fall down on that basis.
> i.e. if the only reason the tenancy was created would be to get
> Housing Benefit.
> 
> HB Regs - Reg 9 http://www.opsi.gov.uk/si/si2006/20060213.htm
> 
> Obviously I can't say for sure that this would happen - that's up to 
> the decision maker at the HB office.
> 
> There are rights of appeal etc. Just something else to take into 
> account/take advice on.
> 
I would say that transferring the tenancy in order to create a liability
for benefit purposes is a textbook example of taking advantage of the 
scheme. The issue here is whether the tenant was liable in the first 
place, and whether there is a commercial basis for the tenancy.

brads101@googlemail.com wrote:
> Last year we sold our house because of extenuating circumstances and
> were unable to lease a new property because of poor credit history.
> So, our son leased a property for us, and we now live in that property
> paying the rent every month.
> 
> Recently, our financial circumstances have changed and so we applied
> for Housing Benefit. After providing the relevant documentation and
> completed forms, we were turned down for Housing Benefit because we
> are not the official tenants – our son’s name is on the tenancy
> contract. The local council also stated we have no right to appeal.
> 
> Is this legally right? We cannot claim Housing Benefit because we are
> not the official tenants?
> 
> Is there any where we can get legal advice from with regards to this?
> 
> Many thanks for your opinions.

First off, you do have a right of appeal. You were informed wrongly.
Appeals should be made within one month of the decision on your claim.

There are a few issues with your situation. With my decision-maker's hat 
on, I would wonder if your tenancy is on a commercial basis. The tests 
for this are normally that your landlord would take steps to enforce 
your rent (by evicting you if necessary) and that he normally offers the 
property as a commercial let.

However, it is well known in the benefits world that the 'not commercial 
basis' decision is hard to substantiate at appeal, and so councils tend 
to use it as a fall-back position.

Anyway, the relevant reg doesn't say much:

9. Circumstances in which a person is to be treated as not liable to 
make payments in respect of a dwelling  	
	(1) 	A person who is liable to make payments in respect of a dwelling 
shall be treated as if he were not so liable where—  	
		(a) 	the tenancy or other agreement pursuant to which he occupies the 
dwelling is not on a commercial basis;

Even though the council have not used this reg in this decision, they 
might well do later if you overturn the decison they have made.

Do you pay your rent directly to your son, or to the freeholder?

This would make a big difference as the freeholder clearly has a 
commercial arrangment going on. Your son doesn't seem to have one with 
you, based on what you have said.

In your case, they same to have gone for the line that you are not 
liable for rent, which is usually a bit stronger at appeal. However, it 
may not be so strong in your case. This is using a different reg, reg 8.

They have probably decided that you failed to satisfy paragraph 8(1)(a) 
below:

8. Circumstances in which a person is to be treated as liable to make 
payments in respect of a dwelling 	
			
	(1) 	Subject to regulation 9 (circumstances in which a person is to be 
treated as not liable to make payments in respect of a dwelling), the 
following persons shall be treated as if they were liable to make 
payments in respect of a dwelling— 	
		(a) 	the person who is liable to make those payments; 	
		(b) 	a person who is a partner of the person to whom sub-paragraph (a) 
applies; 	
		(c) 	a person who has to make the payments if he is to continue to 
live in the home because the person liable to make them is not doing so 
and either— 	
			(i) 	he was formerly a partner of the person who is so liable; or 	
			(ii) 	he is some other person whom it is reasonable to treat as 
liable to make the payments;

This would be because you don't have a written contract. However, 
caselaw has established that a verbal agreement is enough to constitute 
an enforecable liability, and so this shouldn't be a problem in itself, 
if you appeal on this basis. However, I would expect you to fall foul of 
reg 9 above and still be turned down. I think you will struggle to 
overturn this if you are paying to your son and are liable to him.

However, you have a ray of hope in paragraph 8(1)(c)(ii) above.
If you are paying the freeholder directly, then you could argue that 
your son is liable for rent, but you are a person whom it is reasonable 
to treat as liable to make the payments. You could explain that your 
occupation of the property, your son's occupation elsewhere, and your 
credit situation leading to your son signing the tenancy on your behalf 
are the reasonable grounds.

There is another issue that you may need to resolve. What happened to 
the proceeds from the sale of your property? If you have over £16,000 
left you wont normally be entitled to HB. However, if you are keeping 
the capital in order to buy a new property, it is not counted in your 
benefit calculation for 26 weeks. This basically means you can rent and 
claim HB for 6 months between owning properties.

If you have spent the money, you will be disqualified from benefit *if* 
you spent it in order to gain or increase enetilement to benefit. If you 
paid-off your mortgage with it or spent it for other reasons you should 
be ok.

You had better go to the Citizens Advice Bureau and discuss it all with 
somebody with a good knowledge of HB. Print this post out and take it if 
you wish, it should be easier than explaining what I have said. Sorry it 
is so complicated but HB is like that.

Another good source of info is shelter:
http://www.shelter.org.uk/

Don't delay though - late appeals are more difficult.

-- 
anthonyberet