A really messy case - any ideas gratefully recieved.

Two brothers with learning difficulties move into a HA property. Only one on tenancy agreement - gets full HB. Signs forms in Oct to turn into joint tenancy. Due to delay by HA not actioned till Feb - but backdated to Oct. Other brother puts in HB claim in Feb when gets confirmation that on tenancy agreement and asks for backdating. Refused and decision made that first brother has been overpaid.

Have asked LA to use discretion not to recover - but not playing ball.

Overpayment not caused by official error so no challenge to that decision in principle - though haven't seen full decision or calculation yet

So looks like an appeal against refusal to backdate - any pointers or caselaw to help with good cause argument?

Kate

This assumes that the "new" clmt doesn't have an attorney or appointee (appointee in terms of HBR 82).

For the backdate claim, the crux is "Why did the clmt not claim?" / "What caused him to delay claiming?"

And, in deciding whether the answers show "good cause", the test is whether or not the clmt's actions, or inactions were reasonable ("understandable" isn't enough). So, the clmt should definitely appeal, simply setting out what happened and when and explaining why he was unable to claim earlier.

As an aside, is the retrospective liability legally enforceable? My understanding of Housing law is limited, but I didn't think that a rental liability could be historically imposed...


As to the "old" clmt, was HB paid to the L/L? If so, there may be some wriggle room for an appeal to the extent that BOTH the clmt and the L/L should be targets. If the LA hasn't notified both parties (fully), they may have to restart the process. Also, the basis of the decision could be challenged. For example, if the LA insist on trying to have it both ways (i.e. o/p stands AND nil backdate), howabout arguing that the circumstances are such that the "old" clmt's eligible rent, even though joint, should be apportioned 100% / 0%? See HBR 12(5). CDs on this issue include CH/3376/2002 (para 39+). Sorry, but haven't had time to check relevance...

From memory, I think apportionment was also looked at in "Naghsbandi", but I can't remember the context. Both are on www.bailii.org .

R(oao NAGHSHBANDI) v LB Camden (& LBC HBRB) (2001) EWHC Admin 813
NAGHSHBANDI v LB Camden (& LBC HBRB & SoS) (2002) EWCA Civ 1038

Hope the above helps.

The 'new' claimant did not have an appointee or attorney, so tribunal would have to look at whether claimant had good cause.

Claimant did make claim when originally moved into property at same time as brother - but was turned down as not on tenancy. Therefore think reasonable not to make claim until get documents showing on tenancy. Have seen some case law re its claimants behaviour not landlords that needs to be taken into account, so hopefully fact that landlords have acted a bit strangely in backdating tenancy will be ignored.

Interesting re housing law - will check this out, as if liability cannot be backdated, brother fully liable so no overpayment.

Had thought (briefly) about apportionment - so thanks for the references.

Kate

this kind of thing leaves me shaking my head in my hands...

i would argue that brother 2 had good cause for the delay in claiming, because confirmation of his joint tenancy was delayed by the LA, and if he had claimed before his liability was confirmed, his claim would have failed. the commencement of his tenancy was backdated by the LA, and his claim should also be backdated.

reg 104(c)should enable them to cancel brother 1's o/p...

Perhaps another way of looking at this is; was the HA correct in backdating the tenancy to October?

You have not said what happened between the October and the date they 'actioned' the joint tenancy, and I guess it depends on what you mean by 'actioned'.

If the new joint tenant (previously a non-dep?) did not enjoy the property as a tenant for the period, then they can not charge him rent. So it depends on what he signed. If from the moment the document was signed the new tenant had full rights to enjoy the property as a tenant, and the HA gave him all the rights and responsibilities of a tenant then this argument falls, but if he was not otherwise given the rights and responsibilities of a tenant until February, then he can not be charged rent, after all, how can you retrospectively enjoy being a tenant rather than a non-dep? In which case the 1st tenant was the sole tenat and responsible for 100% of the rental during that period...

This of course leads to another argument in that HB can in any event override a tenancy and make 100% of the rental payments to one of the tenants (used to be reg 10 of the HB regs, but not sure what it is now, as have been out of HB for too long), and that is another potential argument that could be used...

Hope this in some way helps...

The case law is that there is no rule that a joint tenancy implies equal contributions to the rent - you may take into account the facts as well as the written agreement. Agreements do not always represent the reality on the ground.

The relevant reg is now 12(5) and it seems an obvious solution to use it to apportion the rent 100%:0% until the time the tenancy situation finally got sorted and brother number 2 claimed. This seems to reflect the reality of the situation anyhow.

In any case, given that the full rent seemingly continued to be charged to brother 1 (which is presumably where the supposed "overpayment" comes from), I fail to see the point of this "backdated" tenancy anyhow.

If I were you I would suggest this to the LA concerned. It is presumably preferable to two quite vulnerable people being caused hardship by some bureaucratic logjam not of their making?

Assuming brother number 1 actually paid the rent for the disputed period, Reg 8(1)(c)(ii) might also help to challenge the entitlement supersession that must underpin the o/p decision: can be treated as liable for rent that someone else should pay, if that person not paying and reasonable to treat him as liable.

Hi,

On the issue of discretion not to recovery the LA has a common law duty to consider see Sibley v West Dorset DC

In Wandsworth requests only seem to work when there are a combination of factors such as illness/diability and financial problems. Seems in your case that capacity is an issue so may be one to through into argument

I agree with jj's first sentence!

The jobsworth in the LA who came up with this bureaucratic timewasting nonense needs a course in elementary commonsense.

Rant over! - I ought to know by now that commonsense all too often doesn't come into these issues.

Thanks for all your suggestions

Has anyone got a copy of Sibley v West Dorset - google not coming up with anything

Kate