Morning,

I know I am probably clutching at straws with this one but if you don't ask!

I am working with a group of tenants who live in sheltered housing. The landlord is undertaking major remodelling and redevelopment work on the properties in which they currently live. The properties currently consist of a bedsit with shared bathing facilities. They are being remodelled into self contained one bedroomed flats.

As this is major structural work, the tenants are being temporarily moved out whilst the work is being undertaken.

The problem I think I am going to encounter is the fact that it is estimated that it is going to be more than 12 months before the tenants are able to move back into the original property.

I'm aware that HB can be paid for temporary absence for up to 12 months but was wondering if anyone knew if there were any exceptions and if there is any way of getting this temporary absence period extended?

As I said, I know I am probably clutching at straws but if anyone has any advice or experience of this situation, it would be much appreciated.

Cheers

John

Where are the tenants being moved to and what are the arrangements and liabilities, if any, for the temporary dwelling(s)?

I don't understand that. If a tenant cannot make substantial use of the dwelling under the terms of the lease then the lease could be frustrated and the liability for rent may well cease. So why then should they need to claim HB at all?

Have been speaking to some colleagues and have some further information which has to be honest confused me even more!

The residents that have been temporarily moved are in accomodation with the same landlord and are on licence and as such are paying the rent and service charge as per their original tenancy.

All the residents who will be returning the the original accomodation have been issued a licence only for the temporary accomodation.

The problems seems to be (as far as I can see) that as they are on licence at the temporary accomodation, then HB is still be calculated on the original tenancy, hence HB will cease if the person is temporarily absent for more than 12 months.

To me, it would seem that the landlord (an RSL) is complicating the situation. Surely the logical solution if the absence is going to be for more than 12 months would be to end the original tenancy, issue a new tenancy for the new accomodation and then reverse the process when the original properties are habitable again?

Does anyone have any views or thoughts on this please? Probably not what you want to be thinking about on a Friday afternoon but any advice would be rewarded with a pint if I ever meet up with you at conferences, etc!

Cheers

John

If there is no express provision in a lease to deal with frustration then If a tenancy is frustrated because the tenant cannot have substantial use of the dwelling because of an 'act of God' or something the landlord does, then, in effect, the lease is at an end. There may be a right to bring legal action by either of the parties on the back of it for some breach of contract for instance, but that is a different matter.

Nevip has amply articulated concerns as to the legitimacy of replacing assured tenancies with licences; but housing / landlord & tenant law is not my area.

So, specifically, the HB issue (which I occasionally know a little bit about) . If the liabilities are in respect of the temp accom, I'd argue that the temp accom is the normal home during the temp period of absence, based on the specific facts of the case. In turn HB would be payable. If the liabilities are in respect of the original accommodation, it seems pretty clear that HB is NOT payable.

Just one other thing. In the circumstances described, it appears the 13 week limit would apply to the original accom - not 52 weeks.

I did wonder if the repairs were "essential", in which case it wouldn't matter which dwelling the liabilities were in respect of. But, based on the info given, I don't see how the repairs can be (genuinely) regarded as "essential".

Not a benefits answer, of course, but shouldn't someone be leaning on the bloody landlord to stop buggering these poor people about and safeguarding their rights to their homes for the future? After all, it's the landlord who is causing the problem.

*cough* The original poster is the L/L......

It's been a while since I worked for an RSL but I remember this process (delightfully known as 'decanting') being relatively straightforward. If somebody had to be moved out of their home for essential repairs then HB could be paid on whichever of the homes (normal or temporary) they were subsequently paying rent on. All the landlord/tenant had to do was make clear which one it was (e.g. still paying rent on normal home but living elsewhere or paying rent on a licence at the temporary home). Obviously rent should only be payable on one of the homes. There was no 12 month limit on this as far as I can remember.

I'm working from home today so no access to reference books but I'm sure reg 7 will cover it somewhere and unless it's changed should be fairly unambiguous, particularly regarding the situation you describe. The practical (rather than legal problems) that used to arise were usually about the information being provided to HBO not being clear, or claimants not notifying HBO of their temporary change of address (because they were carrying on paying rent at normal home during the decant and HB was paid direct to the landlord) and not receiving HB letters or HB being suspended when a visit was made to the property being repaired and they were found not to be living there.

Its Reg 7(4) and there is no time limit

"(4) Where a claimant has been required to move into temporary accommodation by reason of essential repairs being carried out to the dwelling normally occupied as his home, and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he normally occupied as his home or the temporary accommodation, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make payments."

Mon 01-Sep-08 12:15 PM by Kevin D

but I'm sure reg 7 will cover it somewhere

If the liability is in respect of the "OLD" dwelling, I can see nothing in HBR 7 that will help. And therein lies the problem...

And, as suggested above, if the liability is in respect of the "new" dwelling, then it will need to be successfully argued that the "new" dwelling is the normal home in these specific circs.

The "repairs" issue only assists if the repairs are "essential". Based on the info given so far, there is nothing to suggest that the repairs are essential. Desirable, sure, but essential?

Also thinking on it further, notwithstanding frustration, the leases must come to an end, as the dwellings themselves no longer exist in their current form as described in the leases. In other words, the original tenancies were (presumably) for exclusive possession of “bedroom a” and use of shared facilities and that is no longer the case.

They have licences for the temporary accommodation and thus should claim HB on that accommodation. They don’t appear to have any legal liability to pay rent on the old dwellings and the landlord doesn’t appear to have any legal right to demand it from them.

I don’t think anything turns on the use of the word “essential” at all. To say what the landlord is doing is “repairs” is one hell of a stretch. What the landlord is actually doing is to change the use of the building (as opposed to correcting disuse), even if it does involve major structural changes. I cannot see how this could be defined as “repairs” in any ordinary meaning of the word unless it can be shown that the change of use of the building was somehow neccessary (as opposed to merely desirable).

Posted mine at same time as yours nevip so points on definition of repairs etc not a response to you. Not sure on the tenancy (legal) aspects but the aim was to ensure that tenants in this position have their benefit entitlement protected with minimum fuss. The HB reg seems to allow this if the liability established by the landlord is proper.

Not sure if I'm being particularly dense here but I can't see the problem on reading para 4. Not got access to the whole of reg 7 so not sure if there are any qualifying paras but all it seems to say to me is that if you have to move out to temporary accommodation while essential repairs are being done to your normal home then you will be treated as occupying (and so eligible to HB) on whichever of the homes you pay rent while this is going on. It used to be common (and may still be) for RSLs to do an internal decant to another of their properties and keep all the tenancy details (including rent payable) the same.

I suppose you can argue whether the work is essential. I would argue that having your own bathroom etc, particularly if you are a pensioner, is essential. There used to be a lot of sheltered schemes which had small bedsits which may have been considered adequate when first built but attitudes have changed. I saw some of these first hand. A lot of these schemes nationally had occupancy rates below 50% because nobody wanted to live in bedsits with shared bathroom facilities. I don't recall any HB departments arguing that the modernisation/redevelopments at the RSL I worked for as being non-essential (and these included some of the harder nosed London HBOs!) and some of the work could certainly have been described as less 'essential' than as described in this case.

You could also argue whether modernisation/remodelling is a 'repair' or something else but I'm not sure why a HB department would want to (unless perhaps the work was seen as unnecessary). This reg seems to have been set up specifically to make sure that people who are entitled to HB are not disadvantaged if they have to move out temporarily while their home is being fixed. The wording of the relevant para seems to be sufficient to enable HBOs to make decisions that support that policy intention in reasonable cases.

Under Reg 7(4) it does not matter which dwelling is the "normal" home, its just that only 1 dwelling is eligible for payments (HB is not payable at all if there is a liability for more than one)

"Essential" in this context shoould not be given too narrow a meaning (see for example R(SB)10/81 where the Commissioner held that redecorating a kitchen that had become "shabby" was essential as the claimant would be spendinfg a great dealm of time there and could esily become depressed by its condition)

"Essential" has to be judged in the context of what are modest standards today, and I would say that a private bathroom is not luxurious in the context of sharged accommodation today.

A distinction does have to be made between repairs and improvements (seeCIS/781/2002 and CIS15036/1996)

Reg 7(4) refers only to repairs and so I think this is the main problem in the present case. You will need to argue that any improvements have been carried out concurrently with essential repairs (and stress that "essential" does not mean "indispensible")

And if this is a problem presumably the landlord just needs to cease/suspend the tenancy on the old property, grant the licence/tenancy on the temporary property so that HB can be paid on that, then reinstate/grant a new tenancy when the person moves back to the modernised property (assuming that none of this undermines the tenancy rights of the individual).

The onus should be on the landlord to make it as easy as possible for the tenant to meet their rent via HB. The advantage to using the 'essential repairs' clause under reg 7 was that it avoided lengthy delays caused by new claims having to be submitted on new tenancies/licences (a real problem several years ago when it could take 6 months to a year to process fairly straightforward HB claims) and then back again. This could also be why HBOs were content to use this clause I guess.

Thanks for all your responses guys, had the day off yesterday to celebrate a birthday and wasn't expecting my posting to generate so much discussion.

To clarify a point regarding the remodelling/repairs. This work has to be undertaken to bring the properties up to the decent homes standards so I guess on that basis it is arguable that the repairs are essential.

Also, just to clarify details following from ariadne2's posting! I am employed by the landlord in question but my role is to work with and on behalf of the tenants particularly in relation to income maximisation and benefit issues. So basically, I'm looking at things from a tenants point of view and trying to assist and help them and I have to agree with the comments in some of the above postings in that whilst the work on the property is needed, the way the landlord is going about it (especially regarding the decanting of tenants, which is a phrase I particularly dislike) is far from ideal and is acually making what is already a difficult and stressful situation for the tenants even more so. Lets just hope my bosses don't read this posting.......

On a slightly different note, I just wanted to comment on the knowledge and expertise of the people who post on this site. Everytime I have posted (and looked at other peoples postings) I am amazed by the response and the knowledge of the posters. It's an invaluable source of advice and information in the battles we all encounter with the benefits system, landlords etc so thank you all very much, it is very much appreciated.

Regards

John