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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 11471
Experience:  I have been practising for 30 years.
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A vulnerable tenant signed an agreement with me for Banerjee

Customer Question

A vulnerable tenant signed an agreement with me for Banerjee Housing Benefit to pay me directly, any monies due to him upto and including the amount for £7585 which I paid as 6 months rent in advance and deposit. Barnet Council have paid me on 3 occasions but said the tenant has withdrawn his consent to deal with me and they are paying him directly. I am just short of £5000 out of pocket. What should I now do? His rent is now becoming due and he is already in arrears through none payment.
Submitted: 6 months ago.
Category: Law
Customer: replied 6 months ago.
Barnet Council not Banerjee
Expert:  F E Smith replied 6 months ago.

Hello for clarification - have you told the council that he is withholding their rent money?

how behind is he and how much do you think he's been given by the Council?

Customer: replied 6 months ago.
I have told the Council that he is withholding their rent money, and that his landlord is not being paid but they say they cannot discuss this matter with me anymore as he has ‘withdrawn consent’ I had told them they should inform me if he did this so I could take action, they did not. They know he is vulnerable as I have told them. I paid 6 months rent in advance for him + his deposit = £7585. I am owed £4819.06 as I have received 3 payments from Barnet Council and 1 from the tenant. He should have paid June’s rent direct to his Landlord but has not so is in arrears of £1000 which Barnet HB have paid to him. They told me they ‘made a mistake’ by paying me at all, and the tenant who gave his consent has withdrawn it. They knew that by paying me I was then relying on them to continue to do so to prevent my own hardship and of course the tenant was being unjustly enriched as he was getting money for rent already paid. I provided all evidence of bank statements etc showing Barnet this. I also informed them the tenant was vulnerable (history of very serious heroin abuse which almost cost him his life). I told them by acquiescing then reneging they were causing me financial hardship, as well as failing in their duty of care to both the tenant and now me. I think he has been given about £5000 from the Council to date. He paid me 2 sums - £600 on 31/1/18 and £350 on 26/3/18. Barnet Council paid me £199.68 on 5/3/18, £798.72 on 26/3/18 and £817.54 on 23/4/18.
Expert:  F E Smith replied 6 months ago.

Thank you. Ignore the fact that he may be a vulnerable tenants. He is clearly worldly wise when it comes to money! To your disadvantage I might add.

Assuming that the tenant has a Assured Short Tenancy, you need to issue a Section 8 notice under the provisions of the Housing Act 1985

http://www.landlordzone.co.uk/pdf/servingS8.pdf

and here is some more reading

https://en.wikipedia.org/wiki/Section_8_notice

Your application would be made on ground 8 that there are 2 months of arrears at the date of the hearing (he can defeat that by reducing the arrears below two months on the day in court), ground 10, that there are other arrears, 11, that he has regularly failed to pay rent, and anything else listed in the box at the top.

Provided 4 months of the tenancy agreement have already passed, you might want to also give him a section 21 notice to quit at the end of the term. http://www.landlordzone.co.uk/pdf/servingS21.pdf

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 6 months ago.
I am NOT the landlord?
Customer: replied 6 months ago.
Did you read my statement at all?
Customer: replied 6 months ago.
If I took your precious advise it would be the wrong advice!
Customer: replied 6 months ago.
previous not precious - autospell sorry
Expert:  F E Smith replied 6 months ago.

You said that the tenant signed an agreement with you. That would normally make you the landlord of the tenant.

When you said that his landlord was not being paid, I assume that you were saying that that you were not being paid.

So what is your status in this?

Customer: replied 6 months ago.
He signed an agreement with me saying he would pay me the loan I hadn’t made to him for his rent in advance and his deposit. In that’s Agreement he instructs Barnet Council to pay any housing benefit that may become due to him, directly to me as I had paid his 6 months rent in advance and deposit. He became entitled to Housing Benedit soon after. Barnet Council have a copy of that Agreement which instructs them to pay me the amount I paid for him upto and including g £7585. They have paid some to me. Then the tenant went into Barnet Council and withdrew his consent for them to pay me or to communicate with me. They have done as he has asked despite my telling them 1) theybacquiesced to his Agreement with me and Instructions to them 2) he is becoming g unjustly enriched as I have paid his rent and they have evidence of that but are paying him directly again. 3) they have a duty of care to him (he is a known heroin addict) and a duty of care Now to me as they know their payments to him will not reach me and therefore cause me undue hardship. 4). He will soon be threatened with homelessness again as his Landlord will not receive payment from him.
Customer: replied 6 months ago.
loan I had made to him - not hadn’t - sorry. Autospell.
Expert:  F E Smith replied 6 months ago.

Thank you. That makes more sense now. You have never mentioned a loan before.

I’m afraid that you cannot get blood out of a stone and you cannot beat him with a stick or a sharp instrument until he pays up and you have no alternative but to take him to the Small Claims Court.

You need to put in writing to him that unless he pays this money no later than 4 PM next Friday, 15 June, you will have no alternative but to issue Small Claims Court proceedings against him.

At 5 PM on 15 June, you can issue Small Claims Court proceedings here www.moneyclaim.gov.uk

that really is all there is to it.

There is no action that you can bring against the council because there is no agreement between you and them.

Sorry, I wish I could give you a more favourable answer.

Can I answer any specific points arising from this?

Customer: replied 6 months ago.
there is no acquiescence on their part? No unjust enrichment to the tenant? No duty of care due from the council to either him or I? This is not at all equitable. Suing the tenant is pointless. He is a man of straw. ???
Expert:  F E Smith replied 6 months ago.

I could not agree more that it is not at all equitable the agreement is between you and the tenant, not you and the council.

By all means issue proceedings against the council, but I would be surprised in the extreme if they were successful.

I fully appreciate that you only lent money to the “man of straw” on the basis that you are going to be paid by the local authority.

What you can do is apply to court and get a judgement and then enforce it with a third party debt order which is a court order for the council to pay you. It does mean 2 court applications and it isn’t quick.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! (Although there is an incentive scheme where the more five-star ratings I get, I do actually get a pat on the head! :-)) All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 6 months ago.
That’s fine. Can you tell me what two forms I need to complete thank you?
Expert:  F E Smith replied 6 months ago.

It’s not as simple as that.

First of all you have to go to court www.moneyclaim.gov.uk

and get a County Court judgement in your favour for the full amount of money.

Then you have to apply for a Third party debt order

and this is the form https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688642/n349-eng.pdf

The fly in the ointment here is that the Third party debt order will only provide for the money to be paid in a lump, not in instalments.

An attachment of earnings order provides for an employer to pay regular payments but only from wages.

There is no standard process for a third party other than an employer to make regular payments so you would actually need to make a bespoke dedicated application to the court.

It is far from straightforward.

Customer: replied 6 months ago.
Can Barnet Council be sued to pay the money the tenant instructed in writing, for them to pay to me?
Expert:  F E Smith replied 6 months ago.

They could be if there was an agreement between you and them for them to pay you directly. However, from what you have said, the agreement is between them and the client and the client has instructed them not to pay you but to pay them. Therefore, without judgement and third party debt order (which may not be granted in these circumstances) you have no claim against the council. If there was, it would have been the first things I would have mentioned. Sorry

Customer: replied 6 months ago.
What about the fact the instruction was from the tenant to them to pay me? They acquiesced by paying me then without notice stopped paying me knowing I was relying on that money (to pay my own mortgage) and then unjustly enriching the tenant? I told them the tenant was a known drug addict and they should not pay him directly. Surely they have a duty of care to both him and me?
Expert:  F E Smith replied 6 months ago.

You have asked my advice and I have given it. By all means go ahead and sue the Council but I would be surprised in the extreme if it succeeded.

The agreement was between you and the tenant.

There was another agreement between the tenant and the council for the council to pay you.

You don’t have to take my word for it, go ahead and issue proceedings against the council and see what the County Court judge decides.

Customer: replied 6 months ago.
What grounds could I go ahead on?
Expert:  F E Smith replied 6 months ago.

You only have a claim against the tenant and you go ahead to enforced the agreement to repay you.

I just can’t see that you have grounds to go against the council. You are the one that wants to do that but I can’t see any

Customer: replied 6 months ago.
Did they not acquiesce when they paid me? Would a Garnishee Order work in this situation? You will have to excuse my delay in responding. I am in hospital since last Monday with Sepsis.