• Valuations
• Liability
• Completion Notices
• Penalties

The most common type of appeal for landlords will be in relation to liability. An appeal can be made under liability on:

• That a dwelling is not exempt
• That someone is, or is not, a liable person
• That a disability reduction should not be granted
• That a discount should not be granted
• That the amount payable is correct

In the first instance, [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']a letter must be served by the aggrieved person on the local authority [s.16 Local Government Finance Act 1992]

The letter should must state the matter by which and the grounds on which the person is aggrieved.

The local authority has 2 months to consider the matters and may ask for additional information. If the local authority:

• Rejects the appeal
• Makes some changes but fails to satisfy you, or
• Fails to make a decision within the two month period

Then, a further appeal may be made to the Valuation Tribunal. An appeal to the tribunal must be made:

• Within two months of the date the local authority notified you of its decision, or
• Within four months of the date when the initial representation was made if the local authority has not responded.

There is a power in exceptional circumstances for the tribunal to allow extra time.

In the case of an appeal letter to a local authority in relation to a dispute over liability, a calculation or an exemption, the letter can include the following line: “In the event that you do not accept my submission, please treat this letter as notice to appeal to the Valuation Tribunal established under section 16 of the Local Government Act 1992.”[Source: Council Tax Handbook 6th Edition CPAG Chapter 12]

Useful Links

Valuation Tribunal Website

Council Tax Manual (produced by VT)

Useful Guidance Leaflets

Valuation Tribunal Practice Statements

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The Benefits Manager
[insert address of housing benefit department]

[insert date]

Dear Sir or Madam

Reference – Request for revision of Decision and Appeal

Your Ref: [insert hb ref]

I have received your notification of a decision not to pay me as landlord dated [insert date of notification] and the written statement of reasons dated [insert date of written statement of reasons].

I hereby request [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']a review of your decision relying on the following grounds.

The alleged overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact by the tenant.

Regulation 101(2)(b) provides that in such a case, recovery may only be sought from the tenant.

“R.101(2)(b) in a case where an overpayment arose in consequence of a misrepresentation of or a failure to disclose a material fact (in either case, whether fraudulently or otherwise) by or on behalf of the claimant, or by or on behalf of any person to whom the payment was made, the overpayment is only recoverable from any person who misrepresented or failed to disclose that material fact instead of, if different, the person to whom the payment was made…”

If, after a review of your decision, the new decision is not more favourable to me, I hereby request that this letter be forwarded to the appeals tribunal for their consideration.

Should you have any queries or comments, please do not hesitate to contact me.
Yours faithfully

[insert landlord name][/amember_protect]

The below appeal letter relates to a decision not to pay landlord housing benefit despite the tenant being 8 weeks or more in arrears but can be amended accordingly.

Suggested review letter [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'](copy and paste or download RTF version)

The Benefits Manager
[insert address of housing benefit department]

[insert date]

Dear Sir or Madam

Reference – Request for revision of Decision and Appeal

Your Ref: [insert hb ref]

I have received your notification of a decision not to pay me as landlord dated [insert date of notification] and the written statement of reasons dated [insert date of written statement of reasons].

I hereby request a review of your decision relying on the following grounds.

Payment SHALL be made to landlord

Regulation 95 clearly states that where a tenant is the equivalent of 8 weeks in arrears, payments of Housing Benefit shall be made to the landlord.

95. -(1) … a payment of rent allowance shall be made to a landlord (and in this regulation the “landlord” includes a person to whom rent is payable by the person entitled to that allowance)-

(a) …

(b) where sub-paragraph (a) does not apply and the person is in arrears of an amount equivalent to 8 weeks or more of the amount he is liable to pay his landlord as rent, except where it is in the overriding interest of the claimant not to make direct payments to the landlord.

The definition contained in Regulation 95 has no relation to how rent is paid by the local authority. It refers to the amount the person is in arrears for which he “is liable to pay his landlord as rent.”

In the case, Doncaster v Coventry City Council, First Tier Tribunal 032/09/00932, 5 October 2009, it was confirmed that rent is due on the date and therefore where rent is payable in advance, rent is the equivalent of 8 weeks arrears after one month and one day of non-payment by a tenant and regulation 95 applies from this point (assuming rent is payable calendar monthly).

The Doncaster case has been accepted by the DWP after “consulting with lawyers” and circular HB/CTB A26/2009 has confirmed this and the Local Housing Allowance guidance for local authorities has been amended to reflect the Doncaster case. The circular states (paras 12 – 15):

The eight week rule
12    The LA must pay HB to the landlord where the tenant is in arrears by an amount equivalent to eight weeks’ rent unless it is in the overriding interest of the tenant not to make direct payment to the landlord. (HB regulation (95(1)(b))

13    There is no definition in regulations as to how the eight weeks’ arrears should be calculated but we included a note in the original LHA guidance to the effect that the ‘DWP takes the view that a person cannot be in arrears in respect of a period that has not yet been served.’

14    In a recent appeal tribunal (Doncaster v Coventry City Council, First Tier Tribunal 032/09/00932, 5 October 2009) the Chairman expressed the view that ‘Rent is in arrears once the contractual date for payment has passed irrespective of whether rent is due in advance or in arrear’. A number of you have asked us to clarify the Department’s position.

15    The intention behind HB regulation 95(1)(b) is to provide landlords with the security of direct payment as an alternative to seeking possession on a mandatory ground and so avoid a situation arising where a tenant is evicted under Housing legislation. In view of this, we have consulted with lawyers at Communities and Local Government to establish at what point they consider a tenant to be in arrears of eight weeks. As they are also of the view that rent is in arrears once the date for payment has passed without any payment being made, we have revised the LHA guidance so that it is consistent with this position.

In this case, the tenant is liable to pay me as landlord the rent calendar monthly in advance. As the rent is £[insert rent] per calendar month and he owes £[insert arrears] in rent, he is the equivalent of more than 8 weeks that he is liable to pay me as rent. You have been provided with a rent schedule showing how the arrears have accrued and a copy is attached.

I therefore hereby request that payment of Housing Benefit is made payable to me as landlord in accordance with Regulation 95 Housing Benefit Regulations 2006 and in accordance with the Doncaster case referred to above and the DWP amended guidance.

If, after a review of your decision, the new decision is not more favourable to me, I hereby request that this letter be forwarded to the appeals tribunal for their consideration.

Should you have any queries or comments, please do not hesitate to contact me.

Yours faithfully

[insert landlord name][/amember_protect]

When you have received a decision in writing, in most cases the decision is appeal-able within one month. However, you may also ask for a written statement of reasons which should give full details of how the decision was reached. When a statement of reasons is requested, the one month time limit is put on hold until you receive the written statement of reasons and then the clock continues ticking.

The written statement must be provided to you within 14 days or as soon as reasonably practicable [Reg 10(2) HB & CTB (DA) Regs]

Suggested letter (copy & paste below) or[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] download word version

The Benefits Manager
[insert address of housing benefit department]

[insert date]

Dear Sir or Madam

Reference – Request for Written Statement of Reasons

Your Ref: [insert hb ref]

I have received your notification of a decision dated [insert date of notification].

I hereby request a written statement of reasons regarding that decision.

Yours faithfully

[insert landlord name][/amember_protect]

A person affected may make an appeal but a landlord must act quickly because there is only 1 month to appeal.

Step 1

Ask for a written statement of reasons

A statement of reasons is at it sounds, it is an explanation of how the decision by the local authority was reached. The advantage of asking for a statement of reasons is that it puts the appeal time limit on hold until the reasons are sent. A written statement of reasons must be requested within one month of the decision. For example:

Landlord receives notification of decision not to pay direct on 1 August. This would mean an appeal must be made by 1 September. However, if a statement of reasons is requested on 10 August and then received on 20 August, the appeal may be made on or before [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']10 September (to allow for the 10 days it took for the reasons to be sent)

A suggested letter asking for a written statement of reasons is available here

Step 2

Ask for a revision of the decision

Once the statement of reasons have been supplied and the landlord is not satisfied as to the reasons for the decision, the landlord may ask for a review of the decision. This will be carried out be a senior officer of the council.

If the decision remains the same, then the landlord may request that the original decision be appealed to the appeals tribunal. (The local authority should in most case automatically forward the appeal to the tribunal but this rarely happens and the landlord should request it)

If, after review, the decision is made more favourable to the landlord, this becomes a brand new decision and if the landlord is still not satisfied, the whole process starts again from step 1.

A suggested letter seeking a review of the decision is available here

Step 3

Appeal to tribunal

If an appeal is made to the tribunal, there will usually be a hearing where the landlord can put their case across.[/amember_protect]

Appeal or compensation?

Often, payment is simply made to the tenant without any notification to the landlord whatsoever. If the landlord has received nothing in writing, then claiming compensation is the correct method.

However,[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest'] if the local authority has notified the landlord of a specific decision and stating that they believe the landlord is not entitled to be paid (for example if they claim the tenant is not actually 8 weeks in arrears), then an appeal is the appropriate course because the landlord first needs to show that they were entitled to the money in the first place. In this case, the tribunal will not be able to require the local authority to pay the landlord the money already sent to the tenant, however once the landlord has shown an entitlement to the money, they can then claim compensation instead.

Also, if the local authority are simply refusing by a decision to pay the landlord direct and continue to pay the tenant, an appeal is necessary to stop this and have payments sent to the landlord.

On the other, if the local authority writes to the landlord stating they are very sorry, shouldn’t have paid the tenant but still not going to pay the landlord (so there is no dispute over entitlement), then claiming compensation is the correct procedure to follow.[/amember_protect]

This is NOT a case where the landlord notified the local authority that the tenant was eight weeks in arrears and then failed to pay the landlord, however the principle of this case will still apply to such a case [Doncaster v Coventry City Council, First Tier Tribunal 032/09/00932, 5 October 2009]

In summary, the below case is stating that where a local authority fails to follow the regulations and as a result payment is made to the tenant which otherwise it would not have done, there is no power in the regulations to pay the landlord in addition to what has been paid to the tenant. This is because once a payment has been made by the council, the regulations don’t allow a second payment for the same period to another person. The below case is worthy of reading to get a full understanding as to the reasons why this is the case.

However, at the end of the commissioners judgement, he suggested that the landlord was not without remedy. He states [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']“The other possibility is compensation from the local authority. This has been considered but refused in this case. I have no jurisdiction over this aspect of this case, but I invite the local authority to reconsider its refusal.”

Therefore, this gives us a good indication of how best to deal with a situation where a local authority has paid the tenant in error including where payment was contrary to the regulations.

How to apply for compensation

For details on how to apply for compensation with a suggested letter, please click here.

R(H) 2/08 Commissioner E Jacobs

“The claimant had authorised the payment of housing benefit to her landlord under regulation 96(1)(a) of the Housing Benefit Regulations 2006. In January 2006, at the claimant’s request, the local authority decided to stop payments to the landlord and pay benefit instead into the bank account of a friend of the claimant, but it did not notify the landlord of its decision. In April 2006 the landlord contacted the local authority and the authority accepted that it was required by regulation 95(1)(b) to make payments to the landlord because the claimant was more than eight weeks in arrears with her rent.

The authority reinstated direct payments to the landlord. The landlord appealed to an appeal tribunal, arguing that payment should be made to him under regulation 95(1)(b) for the period from January to April. The tribunal dismissed the appeal, holding that there was no power to order a second payment of housing benefit to the landlord. The landlord appealed to the Commissioner. Before the Commissioner it was common ground, on the authority of CH/2986/2005, that: (i) the decision to pay housing benefit to the claimant should have been made on a supersession; (ii) the supersession decision should have been notified to the landlord; (iii) it carried a right of appeal by the landlord; and (iv) it was that decision which was under appeal to the tribunal

3.    The issue is this. When housing benefit has been paid to the tenant, is it possible thereafter to pay housing benefit to the landlord in respect of the same period? The landlord argued that it was. The local authority and the Secretary of State argued that it was not. The parties referred to the issue as the “double payment issue”. I will explain later why this is a misleading label, but I shall use it for convenience.

…

5.    Mr Lindsay and Mrs Wilkinson attended on behalf of the landlord. They spoke to me of the circumstances of this case and of the difficulties that landlords face when dealing with housing benefit tenants who do not pay their rent. I found what they had to say interesting in setting out the landlord’s perspective on payment of housing benefit. It confirmed much of what I had heard or suspected in other cases.

As the result of a concession made by Mr Bailey in the course of the hearing, the only outstanding issue for me to decide was the legal one I have identified above. On this Mr Lindsay and Mrs Wilkinson, neither of whom has any legal knowledge or experience, were able to say little. They did, though, point to the unfairness from their point of view if they could not now be paid, especially as it was the local authority’s failure to notify its decision that led to the gap in direct payments to the landlord.

9.    The default position is that the local authority is under a duty to pay the benefit awarded to the person entitled to it: regulation 94(1). However, this is subject to a series of discretions and duties…

… 12.    The local authority is under a duty to pay housing benefit direct to the landlord in two circumstances. This duty is governed by regulation 95…

13.    Sub-paragraph (b) is relevant to this case. The duty to pay under this provision is subject to two qualifications. First, it does not apply if it is in the overriding interest of the claimant not to pay the landlord direct. (Note that it is the interests of the claimant and not of the tenant that matter. Usually the claimant will be the tenant, but this is not necessarily so…

Second, it does not apply if the landlord is not a fit and proper person to receive payment: regulation 95(3). Neither qualification applies in this case…

14.    If the local authority is not under a duty to pay housing benefit direct to the landlord, it nonetheless has a discretion to do so in the circumstances set out in regulation 96(1):

…96(1)(a) a payment of a rent allowance may nevertheless be made to a person’s landlord where –
(a)    the person has requested or consented to such payment;

[authors note: 96(1)(a) has now been removed due to LHA]

15.    Payment direct to a landlord under regulations 95 and 96 is of a different quality from payment under any other provision, even from payment to a landlord as the tenant’s nominee under regulation 94(3). If payment is made under either regulation 95 or 96, that “payment … shall be to discharge, in whole or in part, the liability of the claimant to pay rent to that landlord in respect of the dwelling concerned”: regulations 95(2) and 96(4).

This is important in defining the issue I have to decide. If payment is first made to the landlord, a second payment of benefit cannot then be paid in respect of the same period to the claimant. The reason is that there is no longer any rental liability for that amount in that period. (The same principle underlies regulation 96(2)(a).) This is why I have defined the issue in terms of making a second payment to the landlord after payment has been made to the tenant.

16.    The legislation creates duties on the local authority. There is a default duty to pay to the person entitled if none of the exceptions applies and a duty to pay to a landlord if regulation 95 applies. And if a local authority decides to pay direct to the landlord under any of its discretions, it is under a duty so to pay until its decision is changed on revision, supersession or appeal. Correlative to those duties is the right in the person to receive the payment. Usually rights are associated with the protection of an interest in the holder of the right. However, in the case of the payment provisions the position is not so simple.

Regulations 95(1)(b) and 96(1)(b) show that the law is designed to take account of the interests of both the landlord and the claimant. The result is that a local authority may be under a duty to pay a landlord in order to protect the interests of the claimant. The payment provisions are united by this theme: the choice of payment method is ultimately for the claimant’s advantage. This shows that it is too simple to concentrate on the right of a landlord to be paid housing benefit and to assume or expect that it will be accompanied by incidents that might apply if the right existed to protect the interests of the landlord alone.

The facts with some commentary

17.    The claimant became a tenant of the landlord in May 2005. It was a term of her tenancy “To authorise Housing Benefit to make direct rental payments to the landlord during the period of occupation and give ‘the reason’ for a change of circumstances as soon as possible.” In compliance with that term, the claimant asked for benefit to be paid direct to the landlord and this was done under the authority of regulation 96(1)(a).

18.    In January 2006, the claimant asked that payment to the landlord should stop and be made instead into the bank account of a friend. That was permissible under regulation 94(3). The local authority decided to do as the claimant asked and made its final payment to the landlord on 30 January 2006. It did not notify the landlord of its decision.

19.    The landlord was not surprised when payments ceased, as it was not unusual for the local authority to suspend payment while making enquiries on various matters relevant to entitlement. The landlord only contacted the local authority in April 2006. The local authority immediately accepted that the case fell within regulation 95(1)(b) and reinstated direct payments to the landlord.

20.    The landlord exercised the right of appeal to an appeal tribunal, but the tribunal dismissed the appeal, holding that there was no power to order a second payment of housing benefit to the landlord. However, the chairman gave the landlord leave to appeal to a Commissioner.

22.    At the oral hearing, Mr Bailey accepted that, on the evidence now available but not on the evidence available to the local authority in January 2006, regulation 95(1)(b) was satisfied at the date when the local authority began to pay the housing benefit to the claimant.

…

31.    There are key elements that must be present in any award: (i) the person entitled; (ii) the benefit awarded; (iii) the amount of the benefit; (iv) the date from which it takes effect or the period to which it applies; and (v) the payee. I will follow this numbering in my later analysis. It may not be necessary to specify all of these elements in the decision. The payee, in particular, will usually be the person entitled and the decision will not need to specify this.

…

36.    How does this apply to the circumstances of this case? The claimant made a claim for housing benefit in respect of her new dwelling when she moved into the landlord’s property. The local authority awarded (i) the claimant (ii) housing benefit (iii) of a specified amount (iv) from the start of the claim, (v) which was to be paid (at the claimant’s request) to the landlord. Call this decision A.

When the local authority decided to pay the housing benefit to the claimant instead of the landlord, it superseded decision A with a new decision. Call this decision B. This decision provided that (i) the claimant (ii) was entitled to housing benefit (iii) of a specified amount (iv) from the date of the change, (v) which was to be paid now to the claimant herself. And when the local authority later reinstated payment direct to the landlord, it superseded decision B with another new decision. Call this decision C. This decision provided that (i) the claimant (ii) was entitled to housing benefit (iii) of a specified amount (iv) from the date of the change, (v) which was to be paid again to the landlord. Decision B is the decision that was before the tribunal.

37.    The effect of decisions B and C, as made by the local authority, were both prospective only in their effect. What would have happened if the local authority or the tribunal had substituted a different and retrospective decision for decision B? Call this decision D. This would have been that (i) the claimant (ii) was entitled to housing benefit (iii) of a specified amount (iv) for the period governed by decision B, (v) which was to be paid to the landlord instead of the tenant. The result would have been that there were at different times two decisions governing the same period.

38.    So far it looks as if the housing benefit paid already under the authority of decision B would have to be paid again under the authority of decision D. However, the legislation anticipates and prevents this effect by using the concepts of offsetting and payment on account:

Offsetting 98.—(1) Where a person has been paid a sum of housing benefit under a decision which is subsequently revised or further revised, any sum paid in respect of a period covered by a subsequent decision shall be offset against arrears of entitlement under the subsequent decision except to the extent that the sum exceeds the arrears and shall be treated as properly paid on account of them.

39.    I referred Miss Demetriou to this regulation at the hearing. She argued that it did not apply, because it dealt only with arrears of entitlement, not arrears of payment. I now consider that that argument is mistaken. Assume that two decisions were made governing the same period from January to April: the decisions I have called B and D. On my analysis, both would deal with all aspects of entitlement. The arrears that became owing under decision D would, therefore, be arrears of entitlement. Payment that had already been made under decision B would, under regulation 98, have to be offset against those arrears and treated as paid on account of them. As the amount of entitlement was the same under both decisions, the effect of regulation 98 would be to prevent any further payment being made under decision D.

…

42.    The problem that has arisen in this case should not arise if the procedures are operated properly. Local authorities have power to make enquiries before changing the payment arrangements and to suspend payment while they do so: see my decision in CH/1821/2006. The authority may make enquiries before deciding to pay housing benefit to the claimant instead. That will allow it, if appropriate, to substitute a decision under regulation 95(1)(b)…

…Even if the local authority does not make enquiries or decides to pay the claimant instead of the landlord, it has to notify the landlord of its decision. That notice is generated by the local authority’s computer at the same time as the notice is generated for the claimant. If that procedure is followed, the landlord will have a chance to apply for direct payment to be restored. This will provide the opportunity to make any (further) inquiries that are necessary before the change the payment arrangement is put into effect. In practice, no payment should be made until the appropriate payee has been identified.

The landlord’s remedies

43.    My decision does not leave the landlord without remedy. There are two possibilities.

44.    The tenant remains liable for the rent which has not been paid and the landlord may take civil proceedings for the rent or to recover possession of the premises. In the case of a tenant who is entitled to housing benefit, an action for the rent is unlikely to be effective and possession proceedings may take time and will involve costs.

45.    The other possibility is compensation from the local authority. This has been considered but refused in this case. I have no jurisdiction over this aspect of this case, but I invite the local authority to reconsider its refusal. The housing benefit was being paid direct to the landlord. This was changed without notification to the landlord. The local authority accepts that that was wrong.

What would have happened if the landlord had been notified? The notification would have been generated by the computer at the same time as the notification to the claimant. The landlord would immediately have applied for the decision to be reversed under regulation 95(1)(b) or 96(1)(b). The local authority would then have investigated and made a decision. The landlord could have produced the evidence on which the local authority has now accepted that regulation 95(1)(b) applies. In other words, the landlord would not have been out of pocket if the local authority had notified its decision.

Disposal

46.    I sympathise with the landlord in this case. My inclination throughout has been to allow a further payment if possible. Of the claimant, the local authority and landlord, it is the landlord alone who is not at fault. The claimant failed to pay her rent. The local authority failed to notify its decision. The landlord alone acted promptly and properly. However, my legal analysis has led to the conclusion that the landlord cannot be paid again the benefit that was paid to the claimant. Strictly, the tribunal could have substituted what I have called decision D, but the offset provision would have deprived that decision of any practical benefit to the landlord. I have, therefore, dismissed the appeal.”

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