ADVISER: Using Housing Benefit regulations to sustain a tenancy and prevent homelessness

For many years, Housing Rights has provided housing advice to people entering and leaving custody in Northern Ireland’s three prisons. The housing advice in prisons project is funded by NIHE and the Northern Ireland Prison Service and is an essential way of preventing homelessness on release and sustaining tenancies for these vulnerable members of society.

One of our advisers discusses how her intervention not only sustained a tenancy for her client but also prevented the client’s 20-year-old son from becoming homeless.

Sustaining tenancy for client in custody

My client, Matthew*, entered custody on a four-year sentence. He had been living in a two-bedroom, NIHE flat with his 20-year-old son. I was initially contacted by the Housing Executive who routinely contact the Housing Rights advisers based in the prisons for help dealing with tenants in custody. The length of Matthew’s sentence meant that he would not be entitled to Housing Benefit and the Housing Executive asked me to speak to Matthew about terminating his tenancy.  Although they were aware that Matthew’s son Kyle* was living in the property, they explained that Kyle had no tenancy rights and that it was expected that he would leave the property.

Discussing options with client

I met with Matthew to find out what he wanted to do about the property and to see if he knew what Kyle’s plans were. Matthew didn’t want to give up the tenancy and was concerned that Kyle would have nowhere to go if he had to leave the property. I discussed the possibility of Kyle remaining in the property as a “nominated occupant”. This would mean that Kyle would remain in the property and would look after Matthew’s responsibilities, including taking care of the property and paying rent, but Matthew would continue to be the legal tenant of the property.

Unfortunately, when Kyle first asked to remain in the property his request was refused. He was told that he had no rights to ask for an assignment of the tenancy and that he would have to leave the property as it was in a high-demand area and he had no rights to remain. Kyle received a letter from NIHE telling him that his request for an assignment of the tenancy had been refused and asking him to return the keys of the property within the next 14 days.

The difference between assigning a tenancy and a nominated occupant

Assigning a tenancy means that the tenancy is transferred from one person’s name into another’s. It is a completely different procedure to requesting that someone become a nominated occupant. It’s quite common for a tenant in custody to nominate a person to look after the tenancy until the tenant’s sentence has been served. Often, this will be the tenant’s partner, but an adult child can also serve as the nominated occupant.

The nominated occupant will not have any tenancy rights, but will need to ensure that all the tenant’s responsibilities have been discharged. The nominated occupant will not always be eligible for Housing Benefit. In this case, Kyle could apply for Housing Benefit as he had been living in the property at the time Matthew’s entitlement to receive Housing Benefit stopped.

Applying for Housing Benefit

After speaking with his father, Kyle applied for Housing Benefit. However, his claim was rejected on the grounds that he had no liability for rent in the property.  I requested a revision of this decision claiming that under Regulation 8 of The Housing Benefit Regulations (Northern Ireland) 2006, Kyle should be “…treated as if they were liable to make payments in respect of a dwelling…” as he was “…a person who has to make the payments if he is to continue to live in the home because the person liable to make them is not doing so and…he is some other person whom it is reasonable to treat as liable to make the payments;”

The decision not to award Housing Benefit was overturned and a back payment was made to cover the rent from the date Matthew’s entitlement to Housing Benefit stopped. Kyle has been able to stay in the family home and Matthew is relieved that his tenancy will be looked after while he is in custody and he doesn’t have to worry about his son having nowhere to live.

Main learning points from this case

Initially, there was some confusion over Kyle’s status in the property. It seems that the Housing Executive were treating his request to be a nominated occupant as a request to assign the tenancy into his name.  The fact that the property was located in a high demand area was raised as a reason for refusing to allow the tenant’s son to remain in the property. We successfully challenged this decision, pointing out that the demand in the area is not something which must be considered when approving a request for a nominated occupant.

Appointing a nominated occupant is a way to safeguard a tenancy for a tenant who cannot currently carry out his or her responsibilities. The fact that someone has gone into custody does not automatically give a landlord grounds to end a secure tenancy.  A secure tenancy can only be ended in certain prescribed circumstances.

In this case the nominated occupant request was eventually approved.  Kyle received Housing Benefit to cover the rent and there were no other breaches of the tenancy so the tenancy remained secure in Mathew’s name.

This case ended well, my client will be able to return to his property on release and his son has been able to stay in his home in the meantime.

Further resources to help

See Chapter 3 of Housing Law in Practice NI for more information on sustaining a tenancy whilst the tenant is in custody.

See Regulation 8 of the Housing Benefit Regulations (Northern Ireland) 2006 for circumstances in which a person should be treated as liable for rent for Housing Benefit purposes and paragraph 2.40-2.52 of Guide to Housing Benefit by Sam Lister and Martin Ward for further information on this provision. 

Housing Rights 1 day course Sustaining Tenancies - keeping clients in their home, is on in Belfast on 12 June and Derry/Londonderry on 13 June. 

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*Names have been changed