Legally Homeless, Out of Contract or Squatting?

by Readers Question

9:49 AM, 4th September 2019
About 3 months ago

Legally Homeless, Out of Contract or Squatting?

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Legally Homeless, Out of Contract or Squatting?

I have a tenant in rent arrears. He didn’t apply properly for Housing benefit at the point of moving in, so the Council have decided to only pay from when he did actually apply and have granted his rent benefit. £1300 owing here. Once the benefit was assessed he was then told top ups were due not only going forward, but would have been from the moment he moved in. Top up arrears now circa £450.

All the way though this nightmare, I have kept the Council informed that I have been having problems with tenant not bothering to get this sorted out. They refuse to pay the two months of rent between when me moved in and his application was eventually granted. Council now decided all the rent arrears are his in totality.

I get a letter from the Council that his housing benefit will be stopped in entirety on 1st Sept – the day the S 21 denoted as D Day.

The tenant is now in situ as told by the Council that if he leaves he is making himself voluntarily homeless and therefore they have no duty of care to provide him with anything.

He is unable to pay any of the arrears himself – he has no means of support whatsoever and he is himself of ‘vulnerable’ status.

Is he actually ‘legally homeless’? The Council are in the position of directly putting this tenant into the position of further financial distress and difficulty by the nature of its (in) action, knowing he has no way of paying for where he is. I thought It is the duty of the Council to prevent homelessness so it is legally ‘unreasonable’ for a tenant to continue to occupy my property in this way, even though it is legally viable for occupation surely?

This ‘unreasonableness’ to occupy a property in this instance, is on the basis of affordability. The tenants have no visible means in which to pay rent. The Department for Communities & Local Government’s Homelessness Code of Guidance when making decisions on homeless applications. Section 8.29 of this guidance states that when assessing reasonableness “One factor that must be considered in all cases is affordability.”

The Housing Act 1985 clearly states in Section 60(1) provides: ‘A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy.

In this case, surely the Council are making it ‘unreasonable’ for him to stay?

Do I need to apply for a N5A to complete the Possession Order if he is already legally homeless, as he is breaking his TA by staying when he knows he can’t afford to do so?? If I have to apply for a Judge to back up the Eviction, who will be liable for the rent paying in between this time and the date decreed when he has to leave? Who will be liable to pick up the £355 it costs me to progress?

ANY answers or thoughts welcome! *sighs*

AB



Comments

RODNEY CRABB

10:46 AM, 4th September 2019
About 3 months ago

I believe the council will tell the tenant to stay put and you will have to go through the courts. Sorry

JJ

10:57 AM, 4th September 2019
About 3 months ago

On: "He didn’t apply properly for Housing benefit at the point of moving in,..."; what was the reason you let him in in the first place if you knew he was a council tenant but did not know he had the means to pay?

And have you now issued a notice to quit for non-payment of rent? If not, why not?

Prakash Tanna

11:01 AM, 4th September 2019
About 3 months ago

Hi,
My advice is (if you have not done this already!) ...
1. Ask tenant to apply a DHP for the period he did not receive HB and for the top-up. He may get awarded that for up to 6 months.
2. The day after the s21 Notice expires, contact the HB team and inform them he is still residing there. There should re-instate his HB claim and continue to pay as they were up until the date he actually moves out. They cancel the HB from the date the s21 expires (standard procedure) but then re-instate it if he stays there.
3. I usually have the tenant assessed for HB and how much they are entitled to before they move in to ensure it will cover the rent ... perhaps a learn for the future?
4. If you want him/her out, you will need to go thru the courts and gain possession that way. Some Councils are changing their attitude and starting to help before it gets to that, but those who physically have nowhere else to house these tenants have no choice but to insist they stay put until the big bad wolfs coma a knocking (bailiffs!).
Goodluck 😉

Mick Roberts

12:45 PM, 4th September 2019
About 3 months ago

Prakash knows their stuff, saves me writing out as Prakash has put it.

Beggars beleif doesn't it, one side of the council stopping HB on S21 date & other side of the council telling 'em to stay there.

Prakash Tanna

12:51 PM, 4th September 2019
About 3 months ago

Reply to the comment left by Mick Roberts at 04/09/2019 - 12:45Thanks Mick. Having worked closely with Councils and LHA/HB tenants for over 10yrs now, I've got to learn how it all works.
Sadly, most departments within the Council work independent of each other and have their own criteria/boundaries they must adhere to. No point fighting it, achieves nothing. Best thing is to learn how to work with it if your model is to rent to LHA/HB tenants. Works for me! 😉

Freda Blogs

13:01 PM, 4th September 2019
About 3 months ago

And Shelter wonders why Landlords might be reluctant to let to 'DSS' tenants when they get to pick up the tab for tenant and council failings...

CARIDON LANDLORD SOLUTIONS

13:49 PM, 4th September 2019
About 3 months ago

If the tenant was entitled to HB at the time he moved in i.e he was in receipt of a legacy benefit he can make a backdate request for the missing period explaining why he did not claim earlier.
If the tenant is still residing in the property the Local Authority should continue to pay the rent up until the appoint he is evicted by the bailiff, as Parkesh states contact the Housing Benefit department and inform them that the tenant still resides in the property so that they can reinstate the claim.
Have a read of this blog regarding The Housing Crisis and Local Authorities attitudes: https://www.landlordlawblog.co.uk/2018/02/28/housing-crisis-local-authorities/

Please feel free to contact our offices for advice on how to assist your client in making a request to backdate his Housing Benefit Claim.

JJ

14:49 PM, 4th September 2019
About 3 months ago

I apologise for my ignorance in this matter; I am amongst that group of landlords that doesn't fully understand why other landlords take housing benefit tenants and direct payment by the Council because the law says that rent may be clawed back by the council from the landlord if it transpires that the tenant was not eligible for benefits and the landlord should have known about it; and because they perceive that the amount of work and effort involved in protecting themselves from such a claim, or knowing the complex system that would allow the tenant to successfully claim benefits appears to be the preserve of a knowledgeable minority.

It's not clear to me from your post whether the Council is paying you directly or whether the Council was paying the tenant; you are receiving correspondence from the Council about it and they have advised you that they are not paying:

In your first post you say: "I get a letter from the Council that his housing benefit will be stopped in entirety on 1st Sept – the day the S 21 denoted as D Day."

Your post is also not clear but it's easy to infer from this that you have already issued section 21 for non-payment of rent. And the date has now passed. So you should be able to get your property back.

I thought that one of the benefits of issuing section 21 for non-payment of rent was that possession is mandatory and except in a few limited circumstances you do not have to go to court. See this link:

https://www.landlordaction.co.uk/information/section-21-section-8-deciding-eviction-action-take/

What this link says is that: "...you may never recover the rent arrears but you get the property back without a court hearing."

So it appears to me that you may not need to go to court to get your property back. If the reason for your post is because you still think you might be able to recover rent arrears, how do you know he is eligible for housing benefit or ever was? Given that the law says that if it transpires that the tenant isn't eligible for benefits then the council can get the rent back from you if they pay you directly? And if you organise HB for the tenant on the tenant's behalf and it subsequently transpires that the tenant isn't eligible, aren't you then a party to fraud?

If you're not sure that the tenant is eligible for benefits, or ever was, or is even capable of doing the work required to access benefits, is it really worth the risk and aren't you better off just getting your property back, renting it to somebody else who has the means of paying you, and not ever renting to council tenants unless you are sure that they are able to pay the rent and eligible for their benefits?

Prakash Tanna

15:18 PM, 4th September 2019
About 3 months ago

Reply to the comment left by JJ at 04/09/2019 - 14:49One presumes he is getting direct payments otherwise the Council do not usually write to the Landlord about the HB claim.
Its rare for the Council to claim over-payment back directly from the Landlord. They usually take it off as a deduction from future and on-going HB entitlement for the claimant. That said, as you state, the law does allow it but i have successfully challenged it in the past and the Council have backed down.
Wrt s21 ... he still has to apply for a possession order thru the courts or PCOL followed by a Bailiff Order to gain possession. As it a non-fault eviction process (which the government are trying to outlaw 😫) it does not routinely require a hearing to be granted.

JJ

15:26 PM, 4th September 2019
About 3 months ago

Reply to the comment left by Prakash Tanna at 04/09/2019 - 15:18
"...That said, as you state, the law does allow it but i have successfully challenged it in the past and the Council have backed down."

So you have had to challenge it in the past. Which means that you have to really know what you are doing to house benefits tenants. And perhaps that's the thing to learn from this thread.

Thank you for sharing the benefit of your experience.

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