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16:49 PM, 23rd January 2014, About 10 years ago 20
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I have recently written to Wellingborough Council as follows and would be interested in the views of other landlords (in particular those with a detailed understanding of the relevant legislation):
Why are local authorities Paying Housing Benefit directly to tenants?
It has recently come to light that Wellingborough Borough Council has been paying housing benefits directly to my tenant without my knowledge. The tenant has spent the housing benefits money and now owes me in excess of £3000 in rent arrears and court fees. Despite the fact that the tenant has fraudulently squandered the housing benefit that was due to me Wellingborough Borough Council are unwilling to cooperate even in providing me information about the payments that have been made or any new address for the tenant that will enable me to pursue the debt through the courts. This is a wholly unacceptable state of affairs.
The Legal entitlement to housing benefit is for the sole purpose of subsidising rent for a tenant who lacks the means to pay rent. The sole legal beneficiary of the money allocated for this purpose is the tenant’s landlord.
Your staff have stated to me that:
1. The council is not obliged to inform the landlord that housing benefit is being paid to the tenant. The council will however inform the landlord under some circumstances.
2. The tenant is not obliged to pay housing benefit on to the landlord. The council will however pay the housing benefit directly to the landlord if the account is 8 weeks or more in arrears but (implicitly) only then on the basis that the landlord is aware that housing benefits are being paid.
3. The council will not provide details of the tenant’s new address to the landlord under circumstances where the tenant has deliberately failed to inform the landlord of an award of housing benefits and failed to pay the awarded sum to the landlord.
The stated reason for withholding information from the landlord is to avoid breaching the data protection Act. Since the tenant has provided the landlord’s details to the council it follows that the landlord is aware of the tenant’s details and vice versa. By informing the landlord of the housing benefit award the only new information provided to the landlord is the fact of the housing benefit. How can it be a breach of the data protection Act to inform the landlord that he is to be the legal beneficiary of a sum of money via a housing benefit award whether or not the sum is paid directly to the landlord? Conversely it could be considered to be a breach of the data protection Act to hold the details of the landlord without the knowledge or permission of the landlord.
Moreover the council has a duty of care to confirm the validity of the rental agreement supporting the claim which would necessitate contacting the landlord. In any event by paying housing benefit directly to landlords under particular circumstances such as 8 weeks of arrears the council is implicitly acknowledging that the imparting of information about a housing benefit award to the landlord does not constitute a breach of the data protection act.
By deliberately withholding the tenant’s new address from the landlord under circumstances where the tenant is fraudulently concealing and withholding the housing benefits from the landlord the council is complicit in that fraud and the further perpetration of fraud onto the next unsuspecting landlord. The effect of this policy is to force landlords to subsidise housing needs that are the responsibility of the council.
It follows from the above that Wellingborough Council is knowingly exposing the landlord to losses.
Wellingborough council owes a duty of care to both the landlord and the taxpayer to ensure that housing benefit is received by the landlord to whom it is owed.
By definition tenants receiving housing benefit will be short of money which will inevitably result in many tenants electing to illicitly withhold some or all of this money from their landlord.
The implementation of a policy to pay housing benefits directly to tenants is a demonstrably reckless abandonment of the local authority’s duty of care to landlords and the taxpayer. The breach of duty of care is worsened by failing to inform the landlord about the payment of housing benefits.
The effect of this ill conceived, short sighted and borderline lunatic policy is entirely counter productive:
1. Tax payer’s money is illicitly squandered by tenants
2. Landlords are faced with unnecessary financial stress
3. Landlords will refuse to rent to tenants receiving housing benefits reducing the available housing stock further and leading to more cost for the tax payer to house such tenants in Bed and Breakfast accommodation.
What are the intended benefits of this policy (and to whom)?
Please can you urgently review your policy and respond to me with your intended course of action. I have copied this letter to the member of parliament for Wellingborough.
Please now provide with the following information which I trust you will cease to withhold:
1. The date the application for housing benefit was made
2. The date the housing benefit was awarded
3. The date and amounts of all housing benefits paid to date
4. Any/all new address details that you have/will have for the tenant
I hold Wellingborough Council liable for my losses and costs in this matter. Please can you now compensate me for my losses and costs:
Rent arrears £3,295.00
Court fees £ 190.00
Kind regards
Jonathan
Mick Roberts
17:43 PM, 24th January 2014, About 10 years ago
Yes, it's disgusting. I specialise in HB along with Jonathon Clarke whom if sees this, may give u his opinion too.
We HB LHA landlords have been having this since April 2008. Govt not listened much at all.
I'm on holiday soon, so if u need any more help, ask me around 5th Feb, but looks like some good replies above.
Quickly, I recommend getting full detailed permission letter signed at beginning by tenant allowing HB to talk to u about EVERYTHING-even what colour pants tenant is wearing.
And secondly, u must put it in your diaries, if tenant not paid u after 2, 4 weeks, ring the HB up. Some people are sensible in HB. And then u could get direct payment to u after 2 weeks if u take or have to take HB tenant again.
U can even get HB paid to u to start with, 8 weeks in advance arrears etc. I'm sure others will be on here soon, can explain fully.
But any HB landlord, permission letter, then ring HB up if no payment from tenant.
Adam Hosker
18:34 PM, 24th January 2014, About 10 years ago
Jonathan - As I understand it - in their opinion - a tenant NOT paying LHA to landlords is not benefit fraud because the MONIES are still legally due to YOU. Although I do agree it is stupid!
You complain that you are loosing money and ask council for rent arrears, unfortunately YOU HAVE NO BENEFITS ENTITLEMENT, you have no claim and they have no responsibility to you. Its the tenants entitlement.
The council is NOT obliged to inform you of anything, you need the "data subjects" consent. In other-words consent of the tenant, which can be revoked at any time.
The "future address" if not disclosed to you by the tenant, would be a breach in data protection, if they provided it to you. No way around that.
ALTHOUGH you "should" be able to go to court and obtain a "Norwich Pharmacal order" (an order for disclosure as outlined in Section 35(1) DPA). Which will release the council from its "data protection trap" and legally obligate them to give you details.
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The truth is, when the tenant was 8 weeks in arrears you should have wrote to the council ! Nevermind if the claimant told you or not they were claiming, all it takes is an email and if theirs no active claim you get a reply back that "their is no entitlement".
The reason written all over government documents that the tenant gets paid direct, is so it feels like a "wage" so when they do get employed - it is not much change. They are used to bank transfers, have bank accounts and so forth.
Lima7 Seven
10:11 AM, 25th January 2014, About 10 years ago
Maybe this is something that other landlords already do, but is it not possible to insert a clause into a Tenancy Agreement that states that in the event of the tenant claiming housing benefit then they 'opt out' of the data protection act and are happy for the council to share all information with the Landlord?
If there was such a clause, would the council accept it?
Fed Up Landlord
11:07 AM, 25th January 2014, About 10 years ago
Unlikely. Contract law does not overrule statute law. The only way to do it is to get a data protection form signed at the commencement of the tenancy giving consent.
Lima7 Seven
12:05 PM, 25th January 2014, About 10 years ago
Reply to the comment left by "Gary Nock" at "25/01/2014 - 11:07":
Ok, but what's the difference between getting a separate data protection form signed at the commencement of the contract, and adding an extra clause into a tenancy agreement? They both just involve a signature on piece of paper, does it make any difference if it's a separate piece of paper?
Fed Up Landlord
12:25 PM, 25th January 2014, About 10 years ago
Hi Lima 7
Exactly. Its just one piece of paper. Not a tenancy agreement and a consent. The council will argue that the tenants have signed for the tenancy agreement and not the data access consent and will refuse to disclose.There is ambiguity which they will seize on. In addition the AST is a contract. Data Protection is a statute. Breach the AST and its a breach of contract. Breach DP law and its a fine.
Here is the excerpt from the Information Commissioners Office:
"The individual’s consent should be absolutely clear. It should cover the specific processing details; the type of information (or even the specific information); the purposes of the processing; and any special aspects that may affect the individual, such as any disclosures that may be made"
The full page can be found here:
http://ico.org.uk/for_organisations/data_protection/the_guide/conditions_for_processing
Hope this helps.
Lima7 Seven
12:40 PM, 25th January 2014, About 10 years ago
Reply to the comment left by "Gary Nock" at "25/01/2014 - 12:25":
Ok, thanks Garry, I think I get it. By making it a separate piece of paper it becomes an explicit declaration. No one can later claim 'I didn't realize what I was signing'
I don't suppose you have an example of what the form ought to look like do you?
Thansk
Fed Up Landlord
12:59 PM, 25th January 2014, About 10 years ago
Not got one to hand. As I do not let to benefits tenants I normally rely on the clauses in the NLA tenancy agreement and get them to specifically sign it as a separate piece of paper. Likewise I rely on Endsleighs Separate Tenant Referencing Consent when I do references. But it s not detailed enough when you are dealing with local authorities who are twitchy to say the least.
If you want to see how twitchy have a look at this for the London Borough of Merton:
http://www.merton.gov.uk/living/benefits/hb-ctb/housingbenefit/landlord_disclosure_policy_final_oct_08-2.doc
I am sure someone on the forum has got a word template they can share with you. If not then as there is not an "official" format for a consent form then you can do your own with the heading "Data Protection Act 1978- Consent for disclosure of information" and list what you want, why you need it, and what you will do with it. If you read the Merton document you will see the reasons what they will use NOT to disclose.
Lima7 Seven
13:31 PM, 25th January 2014, About 10 years ago
Reply to the comment left by "Gary Nock" at "25/01/2014 - 12:59":
Thanks Gary, you say "I do not let to benefits tenants". Neither do I, but I have had two tenants who have promptly started claiming benefits shortly after they moved in. They both passed all the agencies checks, the first was (in theory) employed but had been on long term sick for the last 18 months and was dismissed shortly after moving in. The 2nd was a very large lady who was in fact pregnant, she went on maternity leave the day she moved in, and then started claiming benefits almost immediately.
This is the reason I want a "consent for disclosure of information" before someone moves in.
Thanks
sharon underwood
11:34 AM, 27th January 2014, About 10 years ago
A contract is a contract & providing both parties "get something" from that contract it is legal & binding, however it is a good idea to have 1 or 2 written changes to the contract that both parties sign thus ensuring that the tenant has read the contract thoroughly before signing it & can not later say they had not read it properly. I have just had this row with the council as tenants sub let which then made the home into a HMO, so I said ok if its HMO I will be putting another family in the house & as a HMO i can gain access any time I want without notice (communal areas) the council agreed to this & then changed their mind, so as I pointed out to them they could NOT have it both ways ie making it HMO & thus making me responsible for council tax etc & then saying it was NOT HMO as the tenancy agreement was still valid they just did NOT have a clue but either way I was in the right & they could not do anything..I am a good landlord but I am sick to death of councils thinking they can play god, these tenants have all the rights but I will fight them to the death on these points, they was simply hoping that I would hand over my beautiful home to them so that they could use it for their long list of homeless people! NOT GUNNA HAPPEN!!