Untidy tenancies
A how-to guide on claiming help with housing costs under Universal Credit
Problems can arise for people claiming the housing costs element of Universal Credit (UC) when a tenant or joint tenant no longer lives in the property. This can typically happen when a couple separate and one of them moves out and their joint tenancy has not yet been surrendered, assigned or transferred. It can be difficult to get the landlord to agree to grant a new, sole tenancy to the remaining tenant, especially if there are outstanding rent arrears. This is often referred to as an ‘untidy’ tenancy, and can cause problems if the client then needs to claim help with the rental costs through the UC housing element.
The housing costs element is payable under Section 11 Welfare Reform Act 2012 and Reg 25 UC Regs 2013 if the client is ‘liable’ to make payments on the home.
Where a couple have separated and the tenancy was in the sole name of the person who has left, it is possible for the remaining partner to be ‘treated’ as liable for the full rent under Schedule 2 para 2 UC Regs 2013 if all the following conditions are met:
- the person who is liable to make the payments is not doing do;
- the claimant has to make the payments in order to continue occupation of the accommodation
- the claimant’s circumstances are such that it would be unreasonable to expect them to make other arrangements
- it is otherwise reasonable in all the circumstances to treat the claimant as liable to make the payments
If these conditions are satisfied, then the remaining partner should be able to claim help with housing costs on 100% of the rent.
In cases where a couple are joint tenants of a property but they separate and one of them leaves, it is also possible for the remaining member to claim the housing costs element on 100% of the rent. In this case, they do not need to rely on Sch 2 para 2 as that treats a person as if they were liable, but a joint tenant will already be liable for the whole rent (albeit it jointly with the other tenant). However, such clients may only be awarded the housing element on 50% of the rent — this is because of rules which apportion the amount of rent to 50% in cases of joint tenancies where the other joint tenants are not ‘listed’ people (i.e. members of the clients benefit household — Sch 4 para 2 UC Regs 2013). However, these clients can rely on the provisions in Sch 4 paras 24(5) & 35(5) which allows for a different allocation of the rent if the DWP agree that the normal rule would be ‘unreasonable’. The amount of rent can then be whatever amount the DWP “considers appropriate in all the circumstances, having regard (among other things) to the number of persons liable and the proportion of the relevant payments for which each of them is liable”. So clients in this situation can also request that the housing costs element covers 100% of the rent, if it would be ‘unreasonable’ to do otherwise.
Clients who are refused the housing costs element on the basis that they are not liable for rent can request a mandatory re-consideration of the decision and appeal if necessary.
Some examples of how the rules could operate are below:
Erika and Ken live together as a couple in private rented accommodation with their 3 children. Ken is the sole tenant of the property, so he is liable to pay the rent and therefore satisfies Reg 25(3) UC Regs 2013. The amount of their housing element is calculated on 100% of that liability.
One day, Ken walks out of the house with his belongings, saying he is leaving Erika and the children and will not be returning. Erika asks her landlord if she can take over the tenancy in her name. The landlord agrees, but says this will take some time, although they will allow Erika to stay in the property until this happens as long as she agrees to pay the rent. Erika informs DWP of the change in her circumstances and now claims UC as a single person. However, the housing costs element is refused as Erika she is not liable for the rent and so does not qualify for a housing costs element. Erika argues that:
- Ken is liable but is not paying the rent. She does not know where he is and so has no way of contacting him.
- Erika has to make the payments in order to continue occupying the dwelling, as the landlord may refuse to grant her a tenancy/ultimately evict her if the rent is not paid.
- It is unreasonable to ask Erika to make other arrangements — she has no contact with Ken; she has asked her landlord to change the tenancy agreement but this will take time, and she has no other way of making the rent payments.
- Erika does not wish to cause any further distress to her children by requiring them to move at an already stressful time for them, so it is reasonable in all the circumstances to treat her as liable for the rent.
Jan and Kelly are civil partners and joint tenants of a local authority flat. They satisfy Reg 25(3) UC Regs as they are each liable for the rent, and their UC housing costs are calculated using 100% of their rental liability.
They decide to separate and Jan moves out. Kelly’s single person UC claim will only cover 50% of the rent, as she remains jointly liable with someone who is no longer her partner. Until/unless the tenancy is changed into her sole name, Kelly has to satisfy DWP that it would be “appropriate in all the circumstances” to award her more than 50% of the rent costs. DWP may disagree if, for example, they think that Kelly could move to new accommodation or if they feel that Kelly and Jan should have sorted their joint tenancy issue before separating.
Fiona Seymours work for Citizens Advice in the Expert Advice Team.
This article was correct at the date of publication
