Untidy tenancies: still a mess

Jessica Strode looks at continuing problems with universal credit housing costs where a joint tenant has left the property.

CPAG continues to receive reports of universal credit (UC) claimants being awarded only 50 per cent of their housing costs despite the joint tenant no longer living at the property – and CPAG’s judicial review letter templates on the subject (JR19 social tenancies and JR96 private tenancies) have been the most frequently downloaded so far in 2023, which strongly suggests the issue remains a mess.

When a UC claimant has a joint tenancy, but the joint tenant no longer lives at the property, this is known as an ‘untidy tenancy’ (or ‘absent joint tenant’) and is relevant to the claimant’s UC housing costs element. Part 5 of Schedule 4 to the Universal Credit Regulations 2013 (the ‘UC Regulations’) applies to social housing tenants, and Part 4 applies to private tenants. Both provide the default position that where a tenancy is held jointly between two or more tenants, rent liability is split equally between them.1Sch 4 Part 4 para 24(4) and Sch 4 Part 5 para 35(4) Universal Credit Regulations 2013 No.376 (‘UC Regs 2013’)

The Schedule then goes on to provide the DWP with the power, where the default position would be unreasonable, to instead allocate treatment of rental liability ‘in such manner as the Secretary of State considers appropriate in all the circumstances’.2Sch 4 Part 4 para 24(5) and Sch 4 Part 5 para 35(5) UC Regs 2013 Part 1 of Schedule 2 to the UC Regulations also provides that where a person liable for the rent is not paying, the DWP is to treat the remaining person as liable for the whole rent where ‘the claimant needs to meet the rent payments in order to continue to occupy the property’, and ‘it is reasonable to do so’.

DWP guidance3data.parliament.uk/DepositedPapers/Files/DEP2023-0365/088-Joint-tenancies_V8-0.pdf; paras F3261, F3263, and F3266-7 Advice for Decision Making: staff guide (ADM) then unequivocally confirms that where a joint tenant no longer lives at the property, the remaining joint tenant is treated as liable for 100 per cent of the rent for the purpose of the UC housing costs element.

Advice from the DWP to the National Housing Federation, dated 16 October 2020, advised that a ‘Record a change in joint tenancy costs’ to-do had been introduced for work coaches which ‘allows agents to record how many tenants live in the property and the amount of rent/service charge the claimant pays. This ensures that that both absent joint tenant (Untidy tenancy) or unequal apportionment of rent within a housing costs support claim are paid correctly’ and makes clear, at least in respect of changes of circumstances during existing awards, that a claimant’s declaration that the joint tenant is no longer at the property is sufficient evidence.

The ongoing problem for new claimants may be because the UC new claim questions4Version seen by CPAG: Release 138.19 (ie, on the electronic claim form) do not ask whether, and do not provide an opportunity to explain that, the joint tenant no longer lives at the property. This is deliberate. The DWP’s 2020 ‘Spotlight on: joint tenancy costs – absent joint tenant (untidy tenancy)’5whatdotheyknow.com/request/698686/response/1672757/attach/3/Spotlight%20on%20Joint%20Tenancy%20Costs%20Absent%20Joint%20Tenant%20Untidy%20Tenancy.pdf?cookie_passthrough=1 states: ‘The claim must be verified as a joint tenancy even though there is an absent joint tenant. Case managers can decide that the claimant is wholly liable for the rent, or the percentage split of rent as split between the remaining joint tenants.’

The DWP’s position is therefore that the initial declaration of housing must be that it is a joint tenancy and the onus is then on the claimant to explain subsequently why the default treatment of liability for housing costs should not apply. Providing they do so: ‘Case managers must accept the claimant’s declaration.’6See note 4

The DWP has the power to request from a new claimant information and evidence in connection with a new claim and ‘any question’ arising out of it.7Reg 37(2) Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 No.380 When information about an untidy tenancy is volunteered by a claimant in respect of an existing UC award via the ‘Record a change in joint tenancy costs’ to-do, this information is recorded and used by the DWP to calculate housing costs. Yet this information is not requested of new claimants when making their new claim.

In Kerr (AP) v Department for Social Development (Northern Ireland) [2004] UKHL 23, Baroness Hale explains the DWP’s duties when determining a claim, making clear it is for the DWP to ask the relevant questions since the DWP knows ‘what information it needs to have’. A new claimant may have the information required, but not know that it is relevant to their claim until asked: ‘The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information’ (paragraph 62).

The onus should therefore be on the DWP to ask a claimant for information relevant to their new claim, not for the claimant to volunteer it subsequently, since a new claimant will not know until asked what information they need to provide. By failing to ask whether a joint tenant still lives in a claimant’s home from the outset, the DWP is very arguably failing to exercise the inquisitorial duty described by Baroness Hale.

In most cases, providing that a claimant makes a declaration that they have an ‘untidy tenancy’ or there is an ‘absent joint tenant’ after making their initial claim, possibly using the ‘Record a change in joint tenancy costs’ to-do, their award should be revised under regulation 5 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 (SI No.381) (the ‘Decisions and Appeals Regulations’) to include their full housing costs (usually 100 per cent of the rent). Under regulation 6, this request can be made at any time within 13 months of the decision to award the claimant UC including the incorrect housing costs element if it ‘is reasonable to grant the extension’, and the housing costs should then be increased from the start of the award. If this does not happen and the request has been made within 13 months, see CPAG’s appeal submissions template 4A.8cpag.org.uk/welfare-rights/template-letters

However, the frequent downloading of CPAG’s judicial review resources on this subject suggests that awards are not always revised without a struggle, or not revised within a reasonable time (which may be quite short if the incorrect housing costs element has led to rent arrears and the claimant’s home is at risk). There is also the danger of vulnerable claimants, in particular where an ‘alternative payment arrangement managed payment to landlord’ is in place, not realising that they have been awarded the incorrect amount and not therefore making a second declaration of their housing costs within the 13-month time frame.

Failure to ask relevant questions can constitute official error. MB v Christchurch BC (HB) [2014] UKUT 201 (AAC) (see Bulletin 241, p14) held that a mistake in a claim form which neglected to ask relevant questions could constitute an ‘official error’. And in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, the question for the court was ‘did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?’9Lord Diplock, para 18 – finding he had not and could not therefore have ‘directed himself properly in law’.10Lord Diplock, para 19

Where a claimant is outside the 13-month time limit, they can therefore seek an ‘any time’ revision under regulation 9 of the Decisions and Appeals Regulations, arguing the DWP has made an official error by failing to exercise the inquisitorial duty described by Baroness Hale in Kerr, failing to ask the right questions in the claim form under MB v Christchurch, and failing to ask the right questions and acquaint himself with the right information under SSES v Tameside, when deciding the claimant’s claim, and that this error caused the incorrect award to be made to the claimant. If the DWP refuses the request, appeal to the First-tier Tribunal. Note: there is also a right of appeal against the refusal to consider a revision request for official error.11PH and SM v SSWP (DLA) (JSA) [2018] UKUT 404 (AAC)

However, if your client has not been advised of their appeal rights, has been told that they do not have a right of appeal, or is homeless, destitute or about to lose their home due to rent arrears cause by the error, you may also consider using one of CPAG’s pre-action letter templates (JR19 or JR9612cpag.org.uk/welfare-rights/judicial-review/judicial-review-pre-action-letters/housing-costs-uc).