I have a client who is living in a council flat for which his brother is the tenant. The Tennant is away in the army and is not paying the rent. The brother (my client) is struggling to pay the rent; there is a SPO from 2003 for which the tenant is behind on. The council is currently writing an eviction report.

My question is can the brother, who is not the tenant, claim housing and council tax benefit?

Yes, under Reg 6(1) of the HB Regs your client can be treated as liable to make the (rent) payments if he has to do so to carry on living there and the liable person (his brother) is not actually making those payments.

However, the LA has to determine whether it is reasonable for them to do so, which, of course, will need to have regard to a number of factors which will vary from case to case. One question a LA may ask of itself will be, is this a sham agreement? So many of these cases are not necessarily as straight forward as at first sight.

I am concerned that the authority will argue that the liability was created to take advantage of the housing benefit scheme (contrived letting) as the brother in the army is obviously earning money and is currently not paying for any accommodation.
This of course does no help my client who may soon be homeless and as a single male will not be a priority to be re-housed by the council. I am not sure where the local authority will stand on the 'intentionally homeless' situation either.

Yes, this could be the main stumbling block. However, the burden of proof here is on the LA to prove contrivance but you will need to find compelling reasons why your client's brother is not paying the rent.

No. The Non tenant has to have a legal liability to pay rent to the local Council. As the Council have not assigned him with a tenancy, he has no title to claim rent. Council Tax rebate yes, rent no.

Reg 6 of HB regs will not help him. HB will be able to argue it is not reasonable to treat as liable to make the payments as the Council will be taking steps to repossess the flat. Has he tried writting to his brother in the army to ask for payments?

Could the army brother sublet part of the accommodation to the client? or assign the property to him if he doesn't want it himself?

Duncan

I am afraid I do not understand your reasoning with regard to your interpretation of Reg 6(1). This reg is a deeming provision to treat as liable those who are not actually liable. The question of liability relates to the original agreement between the original contracting parties.

If the original tenant does not have a legal liability then the deeming provisions of reg 6 cannot apply. As long as the original tenant had a legal liability then reg 6 applies.

Regards
Paul

Why cannot a sub-tenancy be created? Under section 93 HA'85 there's a right to create a sub-tenancy with the landlords consent, which can only be withheld reasonably. In this case the landlord is the council and in a sense it is in their interests to allow such a tenancy to be created. Section 94 may allow it to be argued that such a tenancy has already been created and that consent can be sought retrospectively. I suggest that the brother needs to request the creation of such a sub-tenancy.

Has he tried claiming HCTB before? If so, given that a tenancy did exist on the basis of the above, even if not in writing but de facto, then maybe he was turn down in error?