I have an upcoming appeal for a young lady who has been refused HB under reg. 7 (1) (l) - liability created to take advantage of HB scheme.

This is quite complicated but the lady had intended to rent a bungalow belonging to her aunt. Her grandfather died leaving her disabled grandmother in 3 storey house. The family decided it would be better if the granfmother moved into the bungalow and my client move with her partner and children into the 3 storey property. My client would pay rent to the aunt in lieu of the property her gran was living in. Nothing was ever really formalised but my client paid rent for nearly a year before her partner lost his job and they made a claim for HB. They provided a tenancy agreement and rent book, which are both dated Jan 05, coinciding with the date of claim. HB refused the claim. On reading Zebedee, Ward and Lister I note that liability for rent can arise by word of mouth and R v Poole Borough Council is listed as case precedent. I can't find it on the OSSCSC website - can anyone help?

Many thanks

I'd have thought liability created to take advantage is going to be quite hard for the LA to prove if the liability existed for nearly a YEAR before any HB claim was made! Surely any tribunal is not going to entertain that for more than about 10 seconds.

The LA might have an arguable case under 7(1)(a), that the tenancy is not on a commercial basis, but even that seems highly doubtful on the facts as you have stated them.

R V Poole may be available here.

Is this the one you were thinking of?

www.rightsnet.org.uk/pdfs/R_v_Poole_%20BC_ex_p_Ross.doc

Thanks to both, the decision was exactly the one I wanted. I'm quite hopeful that with the right evidence (bills etc) we can prove tenancy pre-dated the HB claim. It's unusual for our HB Dept to let anything get to appeal though, so they must think they have a strong case!

Thanks again.

Hang on a minute! Am I right in saying that the client is paying "rent" to the aunt but living in the grandmothers house? Isn't that going to create a problem? Her landlord is the grandmother (?) but the money goes to the aunt to pay for the grandmothers occupation of the bungalow. So where does that leave your clients tenancy! No rent = no tenancy (usually!). You will need to show that the rent money is paid to the aunt on the instructions of the grandmother, i.e. that the grandmother has a right to receive the rent but it is paid direct to the aunt as part of the grandmothers rent liability to the aunt. (There is something similar in conveyancing where the deposit or balance money can be transferred directly to the end of hte chain with the agreement of the other links in the chain)

It may sound harsh but I do think you may have some problems on the commerciality issue even though the LA do seem to be barking up the wrong tree on the other issue. In addition, if the rent book/written agreement were only drawn up on the same day as the HB claim this is not going to help your client from an evidential point of view.

Good luck!

I've got this little bell going off in the back of my head. I am sure that I have read somewhere (I think it was an obiter remark in a court judgement) that the requirement to pay rent may not actually have to be present in the determination of whether a tenancy actually exists or not. Does anyone else have any recollection of this?

This flies in the face of all previous case law on the issue of course but interesting!

Hi and thanks for that. The arrangement to pay rent direct to the aunt, was simply one of ease. The verbal agreement was that my client would pay her grandmothers rent to the aunt to cover the grans rental liability, thereby cutting the gran out of having to make two transactions. However, the nature of the transaction was understood by all. The 'conveyancing' argument is one I'll be using. I also thought the commerciality would have been a stronger argument, but HB haven't raised this in their submission, so I hope this won't be an issue.

Any further advice is most welcome, as although I've lots of experience with disability tribunals, I am a novice with HB! Our HB Dept never seem to let the issues get that far.

Thanks again.