I have a client who is in a same sex relationship. She claimed Housing Benefit from Kings Lynn Council but was told tenancy on none commercial basis so was not entitled to Housing Benefit. She has already appealed this decision but I do not think she has much of a case as she did not have any commercial agreement with her partner. If anyone has any ideas on how to challenge this I would be happy for help.
The main issues I am interest in is that King Lynn informed client's previous council that client had made claims for Housing Benefit but should not have been paid as a contrived tenancy. Therefore client has been sent an overpayment decision. I am looking at official error as client made claim and all information was provided to council to explain situation and she did not know of overpayment was happening ect.
Any one got anything I could use to take case forward. Is there anything interesting to use around same sex couples and contrived tenancies. I cannot find anything on this subject.

Thanks

Greg

The burden of proving non commeriality lies with the Council.

Useful decisons to look at are R(IS)11/98 and CH1097/2004, both of which hold that there is nothing inherantly non-commercial about friends and relatives renting to each other.

Thanks for replying to my query. i would be grateful if you could let me know when i get hold of the decisions you mentioned. i have looked in the usual places but cant find them. there either not there or i am missing.

thanks for your time

Greg Lonergan

a summary of and link to CH/1097/2004 is available in rightsnet briefcase ....

... and R(IS)11/98 is on the dwp site @ http://www.dwp.gov.uk/advisers/docs/commdecs/97_98/is_1198.asp

Stainsby is correct, the onus is on the authority to prove this. The aspect of a same sex relationship should not come into it.

When we look at these the starting point would be Reg 6, is there liability to pay rent? If not the claim fails there.

If however there is a liability then we would move on to Reg 7. The sort of issues around non-commercial & contrived tenancy would be;
are there legaly enforceable terms (if rent not paid eviction takes place etc) are there rent books tenancy agreements etc, although the abscence of these does not in itself mean it is non-commercial. Is the rent being paid? Is there a shortfall?
Regarding contrived tenancy what was the dominant purpose of the tenant when she entered the agreement to pay rent, if it was to provide accomodation for herself then that would argue against contrivance (there is case law on this)

If you check the analysis to regs 6 & 7 in the CPAG HB book you will find a lot of useful info.

Hope this helps

In the circumstances described, I'm not sure you will need to argue too much about whether the liability was contrived or not.

In my opinion, so long as the (previous) LA was given all info, any HB must by definition have been paid in error by the LA. Unless the clmt has relevant knowledge of the HB system, it should be next to impossible for the LA to argue that the clmt contributed to the O/P or that she could "reasonably have been expected to realise...." she was being overpaid. In turn, it won't matter if the liability was in fact contrived - the O/P will be non-recov in any case.

As an aside, are there Data Protection issues? On what grounds did the "new" LA contact the "old" LA? Was it reasonable in the circs?

Hope that helps.

Regards