My client has a mortgage and has been in receipt of IS for long enough to qualify for additional benefit towards the interest on the mortgage. She has not claimed the additional amount because her mum is a guarantor for the mortgage and has been paying the full amount (direct to the mortgage lender).

Mum would plainly prefer not to be paying the full mortgage if my client could get help from IS towards the interest element. But can my client claim the additional amount while she has a guarantor?

I note that the Form MI12 asks a question about mortgage repayments covered by payment payment protection policies but doesn't ask about guarantor arrangements.

Thank you

Interesting question. The first place to look is probably Sch 9 of the IS regs to see if the payments count as daughter's income: but arguably Mum is not paying your client's mortgage to satisfy her daughter's liability but her own (since the lender can sue her, the person with the money, if the mortgage isn't paid).

Anyone else have any ideas?

My view is that the claimant as mortgagor is still liable even thought the guarantor is ultimately liable. Second, the liability to pay housing costs does not have to be legal one (CSB/213/1987). Third, housing costs can be paid where the person with the liability is not paying the housing costs and a person is meeting those costs in order to remain in the home and it is reasonable to treat that person as liable ( schedule 3, para'2(1)(b) IS Gen' Regs).

Doesn't that only work in this case if mum is also living there?

Not that I'm aware of. The reg is completely silent on that point.

With a mortgage guarantee the mortgagor is primarily liable but the guarantor is secondarily liable if the person with primary liability doesn't pay. In this case it is the person with secondary liability who is paying. The mortgagor still remains liable (it is just that the mortgagee has a choice who to purseu if they can't be bothered to seek possession, or if they do get possession but there is negative equity).

On these facts both the client and her mother have a liability to pay the mortgage but only the cleint is occupying the dwelling as her home, so only she is potentially eligible for IS housing costs.

I was confused witht he refernence to Para 2 of Sched 3. This is used to allow someone who is lawfully occupying the property but is not a party to the mortgage to go on claiming IS housing costs if abandoned by the mortgagor: typically a partner/spouse of the legal owner and mortgagor where the mortgagee is happy to allow them to go on living there as long as they pay the mortgage. This is particularly likely to be soemone who has matrimonial homes rights or an equitable interest in the property. I don't think that the Para 2 provisions can be relevant where the person claiming IS actually has a legal obligation of their own to pay the mortgage.