I understand that arrears of rent due to overpayment recovery, should not be classed as rent lawfully due. This would therefore prevent action against the tenant for repossession, if the arrears accrued in this manner only. I would be grateful if anyone has information on this, ie case law or regulations. Court case tomorrow.
do know know if this is only a Scottish matter under the new Housing Scotland Act.

If the arrears have been caused by lump sum recovery from a rent account then they shouldn't be considered to be arrears of rent lawfully due and wouldn't be grounds for eviction. If an OP has been recovered from ongoing HB - and the tenant has failed to make up the shortfall in rent - then the resultant arrears can be taken into account.

Wed 11-Aug-04 03:35 PM by ken

Hi Willie,

Sorry I did not see your post earlier. After stock transfer here in Glasgow we have no more council tenants (I assume your client is a tenant of the GHA or another local housing association).

All the precedents (Ombudsman Decsions and Eviction cases (a recent Dundee case adressed the issue)) apply to claims of rent rebate. Like the first post I agree they are only relevant where the OP has been recovered from the rent account after it was paid to the landlord (not ongoing deductions to HB entitlement). However RSL tenants are paid rent allowance and the rules are different and more ontentious. I would refer you to CPAG's HB & CTB Legislation 16th Edition.

See the commentary to Reg 102 at P522-524: the case R v Harringey LBC ex p Ayub (1992) established the idea that once a contractual obligation to pay rent was extinguished it could not be resurrected by a subsequent recovery of HB from the landlord. It may create a debt owing to that landlord however that debt was not rent arrears.

In the CPAG book at P 524 it says that this rule "may" have been "abrogated in relation to rent allowance". Regulation 93(2) inserted in 2000 sought to disapply the affect of Ayub in rent allowance cases. See commnetary to that Reg at P 500. The opinion of the author's is that it is Ultra Vires. This may be enough to a get a long continuation from the court while the issue is challenged through the tribunal system (Reg 93 decisions are appealable). But what we have here is an overlap between the law of landlord and tenant and benefits law. The court may wish to retain the jurisiction over what is and what is not rent arrears itself: why should HB regs prescribe this (and can they?). Should an appeal be made to TAS to determine if rent arrears have been created by the affect of a HB reg?

I have been discussing this with others, and they agree that any HB overpayment that is recovered cannot be counted as Rent Arrears, but the Regulations quoted (93(2)) seem to go against that. I would be interested to know the outcome of your case.

we may have to change our Rent Accounting system!

VN:

Ian Walker's response accurately summarises the situation and correctly distinguishes the difference between rent REBATE cases and rent ALLOWANCE cases.

Rent REBATE overpayments are not rent arrears.

Rent ALLOWANCE overpayments, based on HBR 93(2), are (effectively) rent arrears.

HBR 93(2) has, to my knowledge, not yet been challenged as to its vires; however, it seems there may well be no power in the Act(s) to allow the "mixing" of HB law and Housing law.

Regards

The case has been continued at court, so no decision has been made yet.


R. v Haringey London Borough Council, ex parte Ayub (1993) 25 HLR 566 (QBD) ;

Edinburgh District Council v Lyons, 1993 SCOLAG 106. It is perhaps worth noting that, Edinburgh is an authority with a stated policy of not seeking eviction where the arrears shown on the rent account are wholly due to housing benefit overpayments, as they were in
Lyons. It is understood that the reason why that policy is not operated is that its computers lack software which can distinguish between different debts on a rent account. The practice of entering an overpayment of housing benefit on a rent account in such circumstances, so that it appeared to be rent arrears, has repeatedly been held to be maladministration by the Commissioner for Local Administration in England (the Ombudsman); e.g.Wychavon

District Council, Complaint 90/B/2514 (see App. 2) and Hackney London Borough Council,

Complaint 91/A/0730.
I found this to be a very useful arguemen.

Thanks for all the information provided.