ADVISER: Successfully appealing decision that tenancy was contrived

When Universal Credit was introduced, our advisers worried that well-established principles covering complex areas of housing benefit law would not be ported across to the new regime. One particular area of concern was the provisions which allow a claim for assistance with housing costs to be disallowed where the decision maker suspects that the claim has been contrived in order to take advantage of the benefits system.

Our adviser Yolande recently assisted a client, E, who had migrated to Universal Credit through a change in circumstances. E rented a property owned by her mother, and had been in receipt of Housing Benefit for this property for 2 years, having satisfied NIHE decision makers that her tenancy was a genuine commercial arrangement. However, E’s application for assistance with housing costs under Universal Credit was rejected on the grounds that the tenancy was contrived.

Background

E had been renting the property for 2 years and began claiming Housing Benefit when she lost her job several months later. The birth of her second child and a need to claim Income Support meant that E had to claim Universal Credit in July 2018. UC initially paid E’s housing costs, but she received a notice in February 2019 to advise her that she was no longer entitled to this assistance and that an overpayment would be raised to claw back the amounts paid in housing costs. The notification letter stated that UC had decided that E did not have “a liability to make the rent payments on a commercial basis” and advised her of her right to a mandatory reconsideration.

Seeking specialist assistance after mandatory reconsideration upholds decision

E completed the mandatory reconsideration without assistance. The decision maker upheld the original decision, but did not provide any additional reasoning explaining why they felt that the tenancy was not commercial, instead simply listing relevant legislation. At this stage, E contacted Housing Rights for assistance and the matter was escalated to our casework team, where Yolande took on the case.

Appealing the decision that tenancy was contrived

Yolande contacted the Housing Executive’s Housing Benefit unit to ask for a copy of E’s original Housing Benefit application and for any evidence provided in support of this application..  After consulting with experienced adviser Faith Westwood, Yolande submitted the Notice of Appeal, setting the grounds for appeal as a belief that the initial decision was wrong and that the decision maker had failed to consider all of the circumstances and the nature of her occupancy of the property. She explained that further submissions in support of her assertions would follow.

Building a case that tenancy is genuine commercial arrangement

Regulation 26(3)(i) of The Universal Credit (NI) Regulations 2016 states that the claimant must have “a liability to make the payments which is on a commercial basis”. At this point, UC had provided no evidence to explain why it believed the tenancy was not commercial and the only evidence Yolande was aware of to support this claim was the fact that the tenant was related to the landlord which, by itself, does not confirm contrivance.

Yolande reviewed the information provided by NIHE and discussed the matter with Housing Benefit staff who confirmed that they had been satisfied that the tenancy was genuine. E initially lived in the property with her mother, who has a mortgage on the property, and who moved out in 2017, leaving E and her son as the sole occupants. E’s mother was now facing significant financial hardship, as she was now only receiving small rent payments from E and had also received an overpayment demand in respect of E’s UC housing costs claim. E ended up going back to work when her daughter was still very young in an attempt to alleviate some of this financial pressure on her mum.  E’s mother’s ongoing financial commitments on the property and her need to have a paying tenant in the property also supported Yolande’s position that the arrangement was a genuine commercial tenancy, with a very real risk of homelessness through eviction if the tenant couldn’t meet her rental liability.

Universal Credit’s submissions

Although UC conceded that E had correctly provided her landlord’s details when she originally claimed Housing Costs in July and had noted that she was related to her landlord, they stated that E revised her claim in August 2018 changing the spelling of her landlord’s surname and denying a relationship to the landlord. The appeal submissions quoted Commissioner’s Decision C(II) 72/64 which states “I can appreciate that there may, quite honestly, be variations in, or additions to, evidence from time to time during the progress of a case, but where a completely different case is put forward by a claimant then the evidence supporting this second case must be subjected to the closest scrutiny, and indeed by viewed with the greatest suspicion”.

The decision maker also relied on the fact the E’s mother was not a properly registered landlord to support the decision that the tenancy was not a commercial arrangement.

Countering UC’s position

UC’s documentation suggested that E had not keyed in the changes to her account in August 2018 and that these had been input by an agent on her behalf, supporting E’s argument that she would never have spelled her mother’s name incorrectly. The date the spelling error was made was the same day thatUC received a copy of E’s tenancy agreement, which supports the argument that an agent was verifying the account on that day and made the change to the landlord’s name.

E stated that she updated her account in August 2018 as per instructions on her journal to make changes relating to childcare costs. She advised that when making any change to her account she is asked to answer a number of Yes/No questions again and that one of these was related to her relationship to her mother. E said that she must have clicked No in error as she was cycling through these options but has no recollection of doing so. E also explained that she finds updating her journal very confusing and stressful.  

Yolande also advised E to provide evidence of the rental payments she had made to her mother both before claiming benefits and since returning to work. These were submitted as evidence on the day of the appeal hearing.

Appeal submissions

Yolande’s submissions centred on the following aspects

• The client had provided a valid tenancy agreement with accurate details of the landlord, which was not under dispute
• E’s changing her answer to the question about her relationship to her landlord was merely a slip of a finger, and her initial response showed her intention to be upfront about this relationship
• E had no history of obscuring her relationship to her landlord and had declared this to both Housing Benefit and Universal Credit as required
• UC’s decision to end her housing costs entitlement was based merely on suspicion and no evidence, aside from the disclosed relationship, had been provided to support the claim that the tenancy was contrived
• The changes in E’s information did not represent a “completely different case” from that initially presented by E and could be easily explained by the complications of the new system and the client’s unfamiliarity and unease in using the online journal
• The evidence supports the position that there is a genuine commercial agreement with a genuine need to make payments to avoid eviction, as supported by statements from the landlord’s mortgage account and the tenant’s previous and most recent rental payment history

Appeal allowed and housing costs awarded retrospectively

The tribunal allowed the appeal and noted that housing costs should be backdated.

Getting advice on challenging decisions

Although this was a successful outcome for E, it took more than a year to get to this stage. This shows how important it is to get advice before completing a mandatory reconsideration and to request a full written statement of reasons for any decision, before making submissions in support of your mandatory reconsideration request.

Get specialist advice if you want to challenge a decision that you are not entitled to help with your housing costs under Universal Credit.