nevip
welfare rights adviser, sefton metropolitan borough council, liverpool.
Member since
22nd Jan 2004
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RE: Elderly Mother living in granny flat and housing ben
Fri 18-Feb-05 12:26 PM |
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Steve
A number of points arise here and there is considerable overlap between HB law and housing law.
First, generally, prior to the HoL decision in Uratemp v Collins 2001, exclusive possession of 1 room where there were no facilities to cook in that room would usually not give rise to a tenancy but would create a license. The Collins case changed that and the cooking requirement was no longer relevant.
Second, if a person then has a tenancy and lives alone in that room(s), they cannot be said to be sharing that dwelling with anyone. Therefore Reg 7(1)(b) of the HB Regs does not bite.
Third, whether there is a tenancy as opposed to a license does not depend ultimately on the words of any written agreement that may exist between the parties. Courts in housing cases are always minded to look at the facts. For example, does the person have exclusive possession of the room(s), is rent payable for a term certain. If so then the court will usually find that a tenancy exists and a written agreement stating the contrary would usually be a sham.
Fourth, ‘liability to take advantage of the HB scheme’ is a freestanding sub-paragraph and a finding of such will depend on a variety of factors, such as the level of the rent, whether the agreement between the parties was contrived etc.
Finally, see the decisions R (Painter) v Carmarthenshire CC HBRB and R (Murphy) v Westminster CC for commentary on these situations where a license is deemed to exist, and, also see the annotations to Reg 7(1)(b), page 269 of the current legislative volume.
Incidentally I had a case like this a couple of years ago where my client was sharing a kitchen with her daughter but had a tenancy of 2 rooms. Our HB dep’t sought the view of the DWP’s legal dep’t who wrote back saying my argument was correct and HB was payable. HB dep’t duly backed down.
Regards
Paul
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