How many weeks make 8?

Doncaster v Coventry City Council, First Tier Tribunal 032/09/00932, 5 October 2009.

A copy of the decision is currently available here and a gloss here.

This was an appeal of a review decision addressing at what point a tenant is in 8 weeks arrears for the purposes of the landlord applying to the Benefit Authority for direct payments of housing benefit.

Regulation 95 of the Housing Benefit Regulations provides that where a tenant is in arrears to an amount equivalent to 8 weeks or more of rent, HB can be paid to the landlord directly, once the landlord has notified the Authority.

In this case, a private tenancy, rent was payable in advance, on a monthly basis, as is usual. The rent was payable on the 16 of each month. The tenant didn’t pay rent on 16 August 2008 and then again on 16 September 2008. On 17 September, the landlord requested direct payments under Reg 95 from Coventry.

Coventry refused on the basis that the tenant cannot be in arrears until the period for the rent has passed and as the rent was for the period 16 September to 16 October, the tenant wouldn’t be 8 weeks in arrears under the Regs until 17 October. On 22 October, the landlord made a further application for direct payments and these were set up, leaving the period 16 September to 15 October outstanding.

The decision was upheld on review. The landlord appealed to the Tribunal. Shortly before the hearing, Coventry conceded the appeal, but said that they could not pay for Sept/Oct as there was no power to pay twice (the payment had been made to the tenant).

On appeal:
The Housing Benefit Local Housing Allowance Guidance Manual as amended in March 2008 states that rent cannot be in arrear in respect of a period that has not been served. This is wrong. (So the normal rules of when rent is due apparently apply).

The appeal was allowed. Although it was right that there was no power for the LA to pay twice, compensation was payable in this case and should be paid immediately rather than after a protracted complaint to the Ombudsman.

The answer then is that eight weeks can be as short as 4 weeks and a day. Thanks to the Guild of Residential Landlords – who supported the appeal – for the details.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Benefits, Housing law - All.

9 Comments

  1. Really pleased to see this decision, as I always felt that the LA argument was unfair. After all, if tenants are failing to pass over money given to them for rent, it is only fair that payment should be made direct to the landlord as soon as possible.

    Most landlords (well all probably) would say it should have been paid direct to them from the start …

    • Although these are rare in housing benefit/LHA situations. But then, as most private sector tenancies are monthly, as in this case, there is already a disjunct between 8 weeks and two months. So applying the same principle should result in 8 weeks arrears existing the day after the quarterly/6 monthly rent in advance was due. If so, then eight weeks could be as little as one day.

  2. most landlords may well say it should be payable to them. but how would that be justified?
    in particular, while the regulations make it possible in certain circumstances for a recoverable overpayment to be recouped from the landlord, such overpayment can always be recouped from the tenant even if paid directly to the landlord.
    you could have the ridiculous and unfair situation of a person who by definition is not in possession of much money, liable for repayment of money paid to a totally unconnected party which has never gone anywhere near them. there is surely a limit to just how hard we need to make life for those claiming housing benefit.

    • But any overpayment recoverable from the tenant is, technically, on the basis that the tenant has failed to notify the LA of a change in circumstances etc., which is by and large their (the tenant’s) duty. The tenant has,technically, had the benefit of the over payment in discharge of their rent liability, which would otherwise be due to the landlord. If the LA recouped from the landlord, the tenant would still have to pay the landlord for the rent arrears resulting. So – on the big assumption that the overpayment decision is justified, I don’t see your point.

  3. Pingback: The Landlord Law Blog: Housing benefit - 8 weeks arrears can be in advance

    • An interesting decision, the only problem is that the First-tier Tribunal is not a “court of record”. This means its decisions are not binding on other tribunals or on benefit decision makers (except in the case decided). The Upper Tribunal on the other hand is a “court of record” and its decisions are binding.

      This case may help you in formulating a submission for an appeal but unfortunately that is as far as it goes….

    • Very true, but the logic is sound and the status of the guidance is just that – not binding. Note that Coventry conceded the appeal before hearing.

    • Hi NL

      Agree that the logic of the decision is sound and the status of DWP guidance is ‘not binding.

      My concern lies with some of the ways this decision is being reported. One recent example carried the headline: ‘Landmark Local Housing Allowance Decision…’. To most lay people, this conveys something it is not.

      As long as Landlords understand that the decision is ‘not binding’ – that was really my point…

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