Finding out if your tenant is receiving benefits can be difficult. In all likelihood, your tenant will be claiming Universal Credit which is dealt with first in the article but is harder to find out. Then, further below is a trick that can be used under Local Government Act 1972 but only if you believe your tenant is still on the old system of housing benefit paid via a local authority (unlikely nowadays).
Contents
Universal Credit
In all likelihood, your tenant will be claiming Universal Credit and the centralised department won’t tell you if your tenant is in receipt or not.
However, if your tenant is in arrears with their rent (which is usually why you’re interested to know if they are in receipt of UC), you can request direct payment. On requesting, the response will either be to send you payments from now on or, they will respond that they aren’t going to and reasons may be provided which could include they’re not in receipt.
Housing Benefit (Local Authority)
A very common problem when taking housing benefit tenants is the lack of assistance the local authority will normally provide in particular in relation to giving information about a tenants claim. One of the questions a landlord may have is “has the tenant been paid?” Often the answer is hidden behind a cloak of data protection and confidentiality which can be very annoying for landlords.
However, in the vast majority of cases, a landlord has an absolute right to know if a payment has been made to a tenant by a lesser known piece of legislation:
Section 228(2) Local Government Act 1972 provides that a person who is registered to elect the local authority may inspect and make a copy of any money paid by that local authority:
(2) A local government elector for the area of a local authority may inspect and make a copy of or extract from an order for the payment of money made by the local authority.
We had cause to seek such a request a few years ago on one of our own properties. At the time, our local authority weren’t happy and refused. After we threatened Judicial Review, they sought “independent barrister opinion” presumably at great public expense. Then, after seeking clarification of the address I was registered on the electoral role to ensure I was an “elector”, they promptly provided a full schedule of every payment that had been made to our tenant.
Data Protection Act
The requirement to provide details of the payments overrules the Data Protection Act 1998 by section 34 which provides the non-disclosure provisions do NOT apply if:
the data consist of information which the data controller is obliged by or under any enactment other than an enactment contained in the Freedom of Information Act 2000 to make available to the public, whether by publishing it, by making it available for inspection, or otherwise and whether gratuitously or on payment of a fee.
We have produced a sample letter for you to use when making a request for details of payments of housing benefit to your tenants available in our landlord forms section.
Refusal to provide information
At first instance of using the above mentioned template, it is likely the local authority will nonetheless refuse the information citing Data Protection Act.
In which case we have produced a couple of follow up letters as follows:
First is a proposed judicial review claim based on the pre action guidance. This must only be used if you are acting “promptly” after a refusal by the local authority to supply the information. 1 or 2 months is an absolute maximum after a decision refusing to supply the information.
Otherwise, we have produced a complaint letter which may be used in conjunction with the local authority complaint procedure. This is a less formal method of dealing with the refusal to provide information but potentially less effective.
What a excellent usefully tool to have available.
But can a letting agent use it on behalf of their client the landlord without having to get the landlord to sign it or send it?
Hello
The agent could make the request personally (using personal name and home address, not the agent details) because the legislation applies as long as the person making the request (the agent) is registered on the electoral roll within the area of the local authority. Therefore, any request doesn’t have to be for your own tenants or even tenants you manage. The request can be for any person, any property or anything.
As an elector of the local authority you have a right to inspect any and all expenditure of the local authority regardless of what that expenditure might be for.
Of course, as universal credit rolls out, that will be paid by central government so a different piece of legislation will be needed (which I will research when needed).
Many thanks
Guild of Residential Landlords
I had this problem with East Devon District Council they used delaying tactics until it was too late for a Judicial Review. The Local Government Ombudsman then informed me that as I now had a new tenant I was not now suffering any great and so they would not act. Have you tried section F795(4) sub-section(7) (a) and (b) of section 228 of the Local Gov. act? If you do contact the Ombudsman explain all the losses you have.