Case I've not come across before. A tenant is in receipt of HB but has not pay it to his landlord because of dispute over repairs. If he keeps the HB and then moves house will this effect a new claim of HB and would be it fraud?

A tenant is not allowed to withhold rent because the landlord has not effected repairs. However, a tenant can effect the repairs him/herself and offset the cost against rent due.

You would need to check, first, whether the landlord is actually liable for the repairs in the first place.

In such a situation I cannot see any reason why a new HB claim should be affected. I would keep proper documentation though. Write to the landlord outlining repairs that need doing and keep a copy. Keep a copy of any invoices for work done etc and be pepared to show them to the HB department.

There is caselaw to the effect that not using HB to pay rent (or indeed not paying the rent at all) does NOT amount to benefit fraud. Agree with Nevip that claim at new address should not be affected, but current landlord may report rent arrears to the LA if he/she knows the tenant is on HB, which could lead LA to start making direct payments.

Housing Benefit is a benefit like any other, and there is no legal requirement to spend it specifically on rent. If a claimant receives HB and doesn't use it to pay their rent, they are not committing any offence (there is caselaw on this, but I've forgotten the reference).

Hence it should not affect any future claim.

For some reason I think the case involved Portsmouth Council and that it was an acquittal in a criminal case rather than a CD, but someone must know!

Found it - Director of Public Prosecutions v Huskinson - 1988 - and it did involve Portsmouth City Council. The defendant had rent arrears - received HB cheque for £479 but only gave £200 to landlord. Charged with theft of £279 "belonging to Portsmouth City Council". Thrown out by magistartes, Portsmouth appealed but appeal dismissed.


There's a full transcipt on Rightsnet somewhere.....

here's a link to the huskinson judgement ...

http://www.rightsnet.org.uk/pdfs/DPP_v_Huskinson.doc

you would need to see the tenancy agreement and consult a relevantly qualified solicitor in landlord/tenant as to whether the tenant can withold rent in the circumstances. i seem to recall there have been cases in point (set off).

the other problem of course the tenant would, i think - might be wrong - be expected to put the money thus not spent into some sort of account on trust of rhte landlord and thus may run into difficulties re capital limits

too many bits of law getting involved in this question...

The right to set off arises under common law (Courage Ltd v Crehan 1999) and in equity (Barribal v Everitt 1994). A case where the right to set-off was upheld is Lee-Parker v Izzet (1971).

However, Claire is right the tenancy does need to be looked at carefully. One reason, apart from determining the landlord’s repairing obligations, is that the tenancy may contain a (perfectly legal) clause excluding the right to set-off. But the words of exclusion must be clear and precise.