Advice on complicated situation

[ecobabe]

Hi, looking for some advice about a situation my partner finds himself in. years ago when my partner split from his wife he moved back to his family home with his mum who was widowed and lived alone. he has stayed there since as it suited him and his mum. he has always paid rent to her and paid half of all the bills and bought his own shopping. he didn't spend a lot of time there except for sleeping, as he works full time in a good job and has lots of interests and spends time with me;he doesn't have any kids. anyway last week his mum died very suddenly in her sleep, she hadn't been ill but took heart attack in her sleep. apart from dealing with the shock of it, he realised he could become homeless as house which his mum lived in for ~40yrs was a council house. anyway we found out that he could most probably succeed the tenancy as he lived there as his sole residence for long time, so he submitted letter to housing stating his intention to do so and req d/d forms etc so that he can pay the rent. during clearout of house he has discovered that his mum has claimed full housing benefit and council tax benefit through all years he stayed there, >10yrs !! he is now ill in case he is implicated in this in some way; he has a good job working for a council and worried that it will affect him. I have told him that it shouldn't affect him as he didnt do it. Apparently she recently declared to benefits officer that no one else stayed in house. does anyone have any advice? he's a very shy decent person (as was his mother ) and he is really worried about the situation. he's torn between not dumping it on his mum whos no longer around & just giving up the tenancy and keeping tenancy on and being implicated somehow.

[ErikaPNP]

He didn't sign the claim form, his mum did. He didn't make the declarations, his mum did. For any benefit fraud case to be successful in a third party prosecution, they would have to prove that he was party to it. He wasn't. In the case of benefits proof is normally on the balance of probability, but not for a benefit fraud prosecution. For this, as it lies within the boundaries of criminal law, they would be required to prove the case beyond reasonable doubt. Which is fairly impossible to do when he had no involvement whatsoever.

 

You would not believe the number of cases where it is discovered that benefit fraud was taking place in some shape or another when a person dies, when estates teams look into benefits, normally as a result of a claim made in relation to the death by a family member, such as a claim for benefit arrears, a funeral payment, a bereavement payment or bereavement benefit. But once the person has died, a third party cannot be held responsible unless of course the third party was directly involved in assisting the fraud, which is extremely difficult to prove. So usually, there is absolutely nothing that can be done to recover the overpayment unless there is an estate - but they would have to open a fraud case to decide whether his mother had committed fraud. Whether they would do this is dependent on the level of fraud that has potentially been committed.

 

The worst that would happen (as he was not party to the fraud) is that if they can prove benefit fraud was commited, the resulting overpayment would be recovered from the estate of the deceased, if there was any estate. If there was no estate, it's non recoverable.

 

In any case, the situation you have described would not have resulted in a large scale overpayment in the way it would if she had, had a partner living in the house. She still would have been entitled to some housing benefit the difference is that non dependent deductions would have been made from her benefit due to her son residing there. So she would have been entitled to benefit but at a reduced rate. The deductions for each set of income circumstances are outlined below. If, however she was in reciept oa attendance allowance or the care component of disability living allowance, no deduction to her benefit would have been made. Obviously as he was living there, he is jointly and severally liable for council tax (but not the rent as he was not named on the tenancy agreement) therefore he could be made to pay back the council tax for all the years he has lived there.

 

 

 

Here's a run down for a non dependent (HB):

 

Aged under 25 and receiving income support or job seekers allowance (income based)

Deduction = £0.00

 

Receiving Pension Guarantee Credit

Deduction = £0.00

Aged 25 or over and receiving income support or job seekers allowance (income based

Deduction = £7.40

 

Aged 18 or over and not working more than 16 hours per week.

Deduction = £7.40

Gross income less than £120.00

Deduction = £7.40

 

Working over 16 hours a week and gross income £120.00 to £177.99

Deduction = £17.00

 

Working over 16 hours a week and gross income £178.00 to £230.99

Deduction = £23.35

 

Working over 16 hours a week and gross income £231.00 to £305.99

Deduction = £38.20

 

Working over 16 hours a week and gross income £306.00 to £381.99

Deduction = £43.50

 

Working over 16 hours a week and gross income £382.00 and above

Deduction = £47.75

 

Non Dependent on ESA:

 

Aged under 25 and receiving income related ESA during the assessment phase

Deduction = £0.00

 

Aged under 25 and receiving income related ESA during the main phase

Deduction = £7.40

 

Aged under 25 and receiving contributory ESA

Deduction = £7.40

 

Aged over 25 and receiving income related ESA

Dedcution = £7.40

 

Aged over 25 and receiving contributory ESA

Deduction = £7.40

Here's a run down for a non dependent (CTB):

 

Receiving income support or job seekers allowance (income based)

Deduction = £0.00

Receiving pension credit guarantee credit

Deduction = £0.00

 

Aged 18 or over and not working over 16 hours a week and not receiving income support or job seekers allowance (income based)

Deduction = £2.30

Working over 16 hours a week and gross income under £178.00

Deduction = £2.30

Working over 16 hours a week and gross income £178.00 to £305.99

Deduction = £4.60

 

Working over 16 hours a week and gross income £306.00 to £381.99

Deduction = £5.90

Working over 16 hours a week and gross income £382.00 and above

Deduction = £6.95

 

 

Non Dependent on ESA:

 

Aged under 25 and receiving income related ESA during the main phase

Deduction = £0.00

 

Aged under 25 and receiving contributory ESA

Deduction = £2.30

 

Aged over 25 and receiving income related ESA

Deduction = £0.00

Aged over 25 and receiving contributory ESA

Deduction = £2.30

[ecobabe]

thank you erika. He has a meeting with housing tomorrow re his request for succession of tenancy, he emailed them on sunday night to tell them of his mums death and his intention to succeed the tenancy. they were not particularly pleasant when he spke to them as well. at the mo i'm working on him to be tough as he could probably be easily bullied into giving up house; it says on the housing associations website and I know its part of scottish law that to succeed he needs to have resided there for 6 months as his sole residence; since he has been there for more than 10 years and all his mail is delivered there as he never tried to pretend that he didnt stay there, he should be able to prove this. You said he could be liable to repay the council tax; even though he understood that his mum paid this? he gave his mum £350 per month and on top of this paid half the gas and electric bills and all of the phone bill, bought his own food. it could amount to a fortune over the years in council tax.

[ErikaPNP]

Yes, he could be made to repay it because with council tax is "joint and several liability" this means that each person who should have been responsible for council tax has a responsibility to ensure it is paid, but if it is not paid the council can chase any person who is responsible, for the balance. You do not need to be named on the bill or on the tenancy agreement for them to do this, they just have to be able to prove that the property was your sole or main residence. Placing your trust that someone is paying it is not "ensuring" - I've been down that road and fought that battle, in similar circumstances, except no benefit was in payment.

 

Whether they will chase him for it would depend upon the council; It is very unlikely that he would be chased for this, as I would assume that the council tax has been paid up to date, but as it would have been paid as the result of a false declaration on a benefit claim it is a possibility, so it is something he needs to be aware of.

[ecobabe]

ok thanks for that. i'll tell him and keep fingers crossed.

[ray_gamba]

One's liability for Council Tax is not determined solely on "sole or main residence". It is also dependant on the "hierarchy of liability".

 

"If only one person lives in a property they will be the liable person. If more than one person lives there, a system called the hierarchy of liability is used to work out who is the liable person. The person at the top, or nearest to the top, of the hierarchy is the liable person. Two people at the same point of the hierarchy will both be liable.

The hierarchy of liability is:

1. a resident owner-occupier who owns either the leasehold or freehold of all or part of the property
   
2. a resident tenant
   
3. a resident who lives in the property and who is a licensee. This means that they are not a tenant, but have permission to stay there
   
4. any resident living in the property, for example, a squatter
   
5. an owner of the property where no one is resident."
   

Also you do need to be named on the bill or else recovery of the debt would not be possible.

[mich7k]

good luck

[ecobabe]

thanks. Ray can I ask a question, I don't understand part of it. My partners mum was the named person on the tenancy and the council tax. his name does not appear on it. what has come to light is that he paid his own poll tax while resident at the house and only recently threw out a really old bill from poll tax with his name and that address on it, but when it changed to council tax it appears that his mum didn't declare him as living there when she completed the form and claimed full housing benefit. so in effect he is not listed anywhere for council tax from poll tax was thrown out til now. he has always listed his address as his mums since he went there, his bank statements , credit cards, mobile phone bills, car log book from DVLA and work all have his mums address as his home; so he has never tried to pretend that he wasn't there. His mum was really hard working woman who was widowed young and raised 3 children and worked to do so; thats what makes it really difficult because it just doesnt fit her. we think she maybe did it initially for some unknown reason and then got deeper and deeper and couldnt find a way to finish it. But the end result is the pickle he finds himself in. As I said he always was generous and never tried to shirt his share, as far as he was aware he gave her £350 per month as his share of council tax and rent, he than paid half gas , electric and most of phone bill, paid for the shopping and did lots of household chores(as he should have done). he also works for a nearby local authority and they share information so as I said he was never party to it. so where would he fit into the 'heirarchy' and what would his liability. thanks so much; its hard enough dealing with the bereavement without this on top. to boot the housing association are being absolutely beastly to him I have a friend who is a housing officer at the same association; she states that the tenancy is clear cut, he can prove he has been resident there and that means that he can succeed the tenancy- even tho he is not on tenancy agreement. so we are trying to get thru this as well. thanks for ur help

[ray_gamba]

I would have thought that your partner's mother would have been the liable person for Council Tax being the resident tenant. Your partner would probably be in the classification below that. This, though, should not have a bearing on his right to succession. If it was a secure tenancy your partner should be fine. Not so if it was an assured tenancy where a surviving spouse/partner would be the only person with a right to succession.

 

As far as the poll tax was concerned your partner would have been liable as the Community Charge was a personal tax as opposed to Council Tax which is a mixture of personal and property. Your partner's Local Authority may still have his poll tax records in their archive, which would establish his residency at the address. This, though, would be less likely if he had fully paid up his Community Charge. Most Councils have changed their "revenues systems" over the years and tended only to bring accross accounts with a debt to their new systems.

 

Council Tax Benefit is also calculated differently to how Community Charge Benefit was determined. For CCB, other members of the household's income did not have a bearing on an applicant's entitlement unless he/she was a partner. For CTB it does.

 

Best of luck in trying to sort this out.

[ecobabe]

thanks for that. The house has a Scottish Secure Tenancy agreement, I saw it last night when I went to visit. A rep from housing is going to visit him at home this morning, so he has looked out all his letters etc Yesteray they told him that the problrm was that his mum signed a form 4 months ago saying no one else stayed there; i have told him that this does not affect his rights as he has right in law to succed and tenanacy agreemnet can only enhance his rights, not reduce them (so i've been told by housing officer). he's about to have a serious meltdown, he is really worried as he has a very responsible job with another council and the thought of them being contacted and benefit fraud being mentioned is sending him into a spin

[citizenkain]

ecobabe i know someone here in clydebank that was in the same situation as ya friend,because they werent on the voters roll for the property or the council tax register they were told to vacate the premises and go on the housing list,this was several years ago,hope it dont happen to ya mate but it could:-|

[ecobabe]

well it looks like tenancy should be ok (thanks citizenkane). housing officers visted and they had spoken to neighbours who confirmed he stayed there with his mum for years, and he had all his mail. so they seemed to be fine with it; they said he couldn't buy it, but at the moment thats the last thing he's thinking about. with abit of luck that should be that. now he just needs to worry about the benefits