How liability for rent affects housing benefit claims

Potential claimants include council tenants, tenants of housing associations/PRPSHs, housing co-operative tenants, tenants with private landlords, hostel residents, bed and breakfast hotel occupiers and shared ownership occupiers (on the rental element of their payments) and Gypsies and Travellers (in respect of rent on council-run or private sites).

Some people fall into a category of ineligible claimants or are treated as not liable for rent.

Claimant previously owned the home

Regulations prohibits entitlement to housing benefit where the claimant has previously owned the property being rented, and less than five years have elapsed since it was sold, unless they satisfy the appropriate authority that they or their partner 'could not have continued to occupy that dwelling without relinquishing ownership'.[1] Where a person entered into a sale and rent back agreement because they had fallen into mortgage arrears, the courts held that they could not have continued to occupy the dwelling without selling it because they  would have lost possession of it to the mortgage lender.[2]

Housing benefit is not restricted to payments of rent. It also covers payments of:[3]

• a licence or permission fee to occupy the home

• mesne profits or use and occupation charges

• service charges which are a condition of the right to occupy the home

• contribution towards maintenance and essential services by resident of a charitable almshouse provided by a housing association payments

• under a rental purchase agreement.

• pitch fee for a caravan or mobile home

• mooring charges for a houseboat and continuous cruiser licence fees[4]

The following people can be treated as liable to pay the rent, even though they are not in fact liable:[5]

• the partner of the tenant

• the former partner of the tenant who has left and is not paying the rent

• someone who has to make payments to remain in the home because the tenant is not paying and it is reasonable to treat them as liable[6]

• a person whose liability to pay the rent has been waived by the landlord as compensation for repair or redecoration work that the claimant carried out themselves. This only applies for up to eight weeks

Prisoners

If a tenant goes into prison they might not be eligible for housing benefit when they are absent from home. The tenant will need to ensure the rent liability continues to be met if they wish to preserve the tenancy.

A person who was already living in the home before the tenant went to prison can be treated as liable for rent (as above). A caretaker who moves into the property after the tenant went to prison cannot be treated as liable for rent.[7]

See Subtenancies for information on subletting the home and Penalties for unauthorised subletting of social housing on the possible consequences of subletting a social housing tenancy.

Mental capacity

The Upper Tribunal has held that a person who lacked the mental capacity to enter into a tenancy agreement was found to be liable to make payments in consequence of the occupation of her home and thus eligible for housing benefit.[8]