R(JSA) 9/03
(Secretary of State for Work and Pensions v. Miah [2003] EWCA Civ 1111)

CA (Ward, Mance LJJ, Nelson J)	CJSA/4620/2002
25.7.03
Capital - disregard for “dwelling occupied as the home” - whether two houses can be one dwelling
The claimant was a married man with eleven children, eight of whom were dependant. He owned two three-bedroomed houses in the same street, separated from each other by two other houses. On 11 February 2000 he claimed income-based jobseeker’s allowance, which was refused on the ground that the capital value of only one house could be disregarded as “the dwelling occupied as the home” under regulation 108(2) of and Schedule 8 paragraph 1 to the Jobseeker’s Regulations 1996. He appealed on the basis that both houses were occupied as one dwelling. The tribunal decided that there was no provision for the value of the claimant’s second house to be disregarded and dismissed the appeal. The claimant appealed and the Commissioner held that the “dwelling occupied as the home” might comprise more than one building, but remitted the case to a fresh tribunal to make findings of fact as to the extent of the use of the second house by the claimant and his dependent children. The Secretary of State appealed to the Court of Appeal. By the time the appeal was heard by the Court of Appeal a second tribunal had accepted evidence that the second house was occupied by the claimant and his family, and it had been conceded by the Secretary of State that there would be statutory overcrowding if the claimant and his family were to occupy only one of the houses. 

Held, dismissing the appeal, that:
1.	the expansion of the word “dwelling” into the phrase “dwelling occupied as the home” gave the impression that the legislature had intended to convey its function as a home for the claimant rather than its bricks and mortar and that home was not necessarily confined to a single building (paragraph 26);
2.	a test for determining whether two buildings were one home was to ask whether one house was, in effect, used as an annex of the other, or to put it another way, whether it was a single home on a split site (following R(SB) 10/89) (paragraph 27);
3.	applying that test a decision-maker could with commonsense determine what a claimant was using as his home. It was the place where he lived, where he ate, slept, bathed, relaxed, and which he enjoyed with his family (paragraph 32);
4	The Commissioner’s decision had therefore been correct, and accordingly, the appeal would be dismissed.

DECISION OF THE COURT OF APPEAL
James Maurici (instructed by Office of the Solicitor, Dept for Work & Pensions) for the Appellant.
Daniel Kolinsky (instructed by Andrew Millar, Messrs McGrath & Co.) for the Respondent.

Judgment (Reserved)
LORD JUSTICE WARD: 

The issue

1.	This is the question which arises in this appeal: is there one dwelling or two dwellings occupied as the home where a claimant for jobseeker’s allowance normally occupies as his home two houses separated from each other by other houses in the street, each house being overcrowded if the claimant and his large family were removed from both houses into only one of them? On 23 May 2002 the Social Security Commissioner, Mr E.A.L. Bano, so construed the Jobseeker’s Allowance Regulations 1996 as to lead him to the conclusion that there could be only one dwelling in those circumstances but he gave the Secretary of State permission to appeal to us.
The facts

2.	Mr Mohammed Miah is a married man. He is the father of twelve children, the baby having been born after the time which is the material time for the purpose of this appeal. At that time, February 2000, his eldest son was 22 years old, working in Leicester and mainly living away from home. He had twin daughters aged 20 at university in Birmingham. But there were eight others still dependent upon him. He seems to have been a hard-working man who was employed by the Somali bank for twenty-two years until he was made redundant on 30 June 1999. After his entitlement to contribution-based jobseeker’s allowance had expired, he lived on his redundancy monies and when they had been depleted, he claimed income-based jobseeker’s allowance. He would not be entitled to this allowance if his capital were to exceed the prescribed amount set by the regulations at £8,000. In calculating his capital only one dwelling occupied as the home may be disregarded. Mr Miah and his family occupy two properties. His original home was 11A Haseley Road, Handsworth but as his family grew, the need for further accommodation became pressing. Hence when a nearby house at 19 Haseley Road became available in 1992, he purchased it. Two other houses in the street separate these two properties from each other. Each of these properties is a three-bedroomed house. His eldest son returned to No. 19 at weekends and although the twins tended to eat out, they usually slept there. The nature and extent of its other use by Mr Miah and his family was in dispute. If Mr and Mrs Miah and all their dependent children were to occupy only one of those houses, that property would be overcrowded within the meaning of section 325 and section 326 of the Housing Act 1985 and Mr Miah would commit an offence which could lead to his having to pay a fine not exceeding Level 2 and a further fine for every day subsequent to the date on which he was convicted on which the offence continued.
3.	On 22 March 2000 it was decided that the value of his second house could not be disregarded in determining his entitlement to a jobseeker’s allowance. Since the value of that house exceeded the capital limit, the claim for benefit was disallowed. He appealed on 3 April 2000 on the ground that one house was not big enough to house all his children. On reconsideration of the refusal decision on 7 April 2000, the reconsidering officer concluded that the house occupied by the claimant and his dependent children was not overcrowded and he was not minded to change his decision. On 5 May 2000 the claimant’s representative submitted further argument that there was statutory overcrowding, a fact now conceded by the Secretary of State. On appeal the tribunal concluded that only one dwelling could be disregarded and so dismissed the appeal. Mr Miah then appealed to the Commissioner and on 23 May 2002 Mr Bano gave Mr Miah his first taste of success. 
4.	The Commissioner took the view that there was sufficient uncertainty about the facts of the case as to require it to be remitted for rehearing before a differently constituted tribunal. He held that the new tribunal should:
“… consider in particular whether the claimant’s arrangements were such that one house was, in effect used as an annex of the other, or to put it another way, whether this was a single home on a split site. Occasional use of the second house by the claimant or his dependent children will not assist him, because the tribunal must be satisfied that the second house was “normally” occupied by the claimant as his home.”
5.	There is confusion about what happened next. There is some dispute as to whether or not the Secretary of State gave adequate notice of his intention to appeal against the Commissioner’s decision. Whatever may have gone wrong, the fact is that the tribunal heard the matter remitted to them on 26 July 2002, the very day the Commissioner granted his permission to appeal to this court. The Secretary of State was not present nor represented at the oral rehearing. Mr Miah gave evidence which was accepted. The tribunal was satisfied that 19 Haseley Road was not used solely by the claimant’s non-dependent children and that the claimant himself did not use it only occasionally. The conclusion was:
“I find that both 11a and 19 Haseley Road were the dwelling normally occupied as the home, and save for being in two different buildings, these houses together were as much part of a single home as are the upstairs and downstairs of any house. 19 Haseley Road was primarily for sleeping and bathing, 11a Haseley Road was for day-to-day family living.”
	The Secretary of State’s application for leave to appeal against that decision stands adjourned by the Commissioner until after the Court of Appeal has decided this appeal.
The legislative framework for jobseekers
6.	Section 13(1) of the Jobseekers Act 1995 (“the 1995 Act”) provides:
“No person shall be entitled to an income-based jobseeker’s allowance if his capital, or a prescribed part of it, exceeds the prescribed amount.”
Section 12(4) provides that:
“Circumstances may be prescribed in which—
(b) 	capital or income which a person does possess is to be disregarded.”
7.	The contemplated regulations are now contained in the Jobseekers Allowance Regulations 1996 (“the 1996 Regulations”). Regulation 107(a) sets the capital limit at £8,000. Regulation 108(2) provides that:
“There shall be disregarded from the calculation of a claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 8.”
“Claimant” had been defined in section 35 of the 1995 Act to mean a person who claims a jobseeker’s allowance.
8.	Paragraph 1 of Schedule 8 dealing with capital to be disregarded, excludes:
“the dwelling occupied as the home but, notwithstanding regulation 88, (calculation of income and capital of members of claimant’s family and of a polygamous marriage), only one dwelling shall be disregarded under this paragraph.”
Regulation 88 provides that the income and capital of a claimant’s partner which by virtue of section 13(2) is to be treated as the income and capital of the claimant, is to be calculated as provided for in that part of the regulations, which part includes regulation 108, and, except where the context otherwise requires “claimant” is to be construed as if it were a reference to his partner. There is a similar provision for members of a polygamous marriage. 
The important definition is “dwelling occupied as the home” which is defined in regulation 1(3) of the 1996 regulations to mean:
“the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately, in particular, in Scotland, any croft land on which the dwelling is situated.”
9.	A claimant for income-based jobseeker’s allowance may also be entitled to housing costs if eligible under Schedule 2. Paragraph 1(1) of Schedule 2 provides that the housing costs applicable to a claimant are those costs:
“(a) 	which he, or, where he is a member of a family, he or any member of that family is, in accordance with paragraph 2, liable to meet in respect of the dwelling occupied as the home which he or any other member of his family is treated as occupying; …”
The phrase “dwelling occupied as the home”, is, as I have pointed out, defined in regulation 1 and so bears the same meaning for the purposes of Schedule 2 as it does for the purposes of Schedule 8. Schedule 2 goes further. It contains deeming provisions in paragraph 3 which include these:
“(1) 	Subject to the following provisions of this paragraph, a person shall be treated as occupying as his home the dwelling normally occupied as his home by himself or, if he is a member of a family, by himself and his family and he shall not be treated as occupying any other dwelling as his home.
(2) 	In determining whether a dwelling is the dwelling normally occupied as the claimant’s home for the purposes of sub-paragraph (i) regard shall be had to any other dwelling occupied by the claimant or by him and his family whether or not that other dwelling is in Great Britain.
…
(4) 	Where a person is liable to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only—
(a)	where he has left and remains absent from the former dwelling occupied as the home through fear of violence in that dwelling or by a former member of his family and it is reasonable that housing costs should be met in respect of both his former dwelling and his present dwelling occupied as his home; or
(b)	in the case of a couple or a member of a polygamous marriage where a partner is a full-time student or is on a training course and it is unavoidable that he or they should occupy two separate dwellings and reasonable that housing costs should be met in respect of both dwellings; or
(c)	in the case where a person has moved into a new dwelling occupied as his home, except where subparagraph (v) applies, for a period not exceeding four benefit weeks if his liability to make payments in respect of two dwellings is unavoidable.”
Other allied statutory provisions
10.	Paragraph 3 of Schedule 2 of the 1996 Regulations seems to mirror and replicate closely the provision for the amount payable by way of income support in respect of housing costs: see regulations 17(e) and 18(f) and paragraph 4 of Schedule 3 to the Income Support (General) Regulations 1987. There are other more relevant similarities. “Dwelling occupied as the home” is defined in regulation 2(1) of the 1987 regulations in virtually the same terms as regulation 1(3) of the 1996 regulations. Paragraph 1 of Schedule 10 of the 1987 regulations is in almost identical terms to paragraph 1 of Schedule 8 of the 1996 regulations. There is, however, one difference between the two statutory schemes. The enabling legislation under which the 1987 income support regulations were made contains a definition of “dwelling” in these terms:
“… any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises; …”:
see section 84(1) of the Social Security Act 1986 now contained in section 137(1) of the Social Security Contributions and Benefits Act 1992. This definition does not find a place in the Jobseeker’s Act 1995.
11.	The Supplementary Benefit (Resources) Regulations 1981 (“the 1981 regulations”) also provided for the claimant’s home to be disregarded but here the language is different. Regulation 2(1) defines “home” to mean:
“the accommodation, with any garage, garden and outbuildings, normally occupied by the assessment unit and any other members of the same household as their home and it includes also any premises not so occupied which it would be impracticable or unreasonable to expect to be sold separately, in particular the croft land where, in Scotland, the home is a croft.”
The “assessment unit” means “the claimant, and any partner and dependant of the claimant”.
12.	Finally, from yet another set of welfare benefits, there is regulation 5 of the Housing Benefit (General Regulations) 1987 which makes provision for the circumstances in which a person is or is not to be treated as occupying a dwelling as his home. Regulation 5(1) provides that:
“Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home—
(a)	by himself or, if he is a member of a family, by himself and his family; …
and shall not be treated as occupying as any other dwelling as his home.”
13.	Regulation 5(5) provides that:
“[w]here a person is liable to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only—
(a) 	… where he has left and remains absent from the former dwelling occupied as his home through fear of violence in that dwelling …
(b)	in the case of a married or unmarried couple or a member of a polygamous marriage, where he or one partner is a student … it is unavoidable that the partners should occupy two separate dwellings … 
(c)	in the case where, because of the number of persons referred to in paragraph (1), they have been housed by a housing authority in two separate dwellings.”
The Commissioner’s decision under appeal.
14.	Mr Commissioner Bano had to consider two other decisions made by his colleagues considering other regulations. One was the decision in R(SB) 10/89 made by Mrs Commissioner Heggs under the Supplementary Benefit (Resources) Regulations 1981 and the other was a starred decision 17/93 in CIS/081/1991 made by Mr Commissioner Sanders with respect to the Income Support (General) Regulations 1987. In the former case it was held that a distinction exists between a claimant who owns two houses, each of which can accommodate all members of his assessment unit and which are used at different times for different purposes and cases where each house is inappropriate for the size of the assessment unit. In that case it was held that the claimant’s assessment unit “normally occupied” the two houses in question. In the latter case, which the Commissioner did not find to be completely straightforward, he held that the language of the Supplementary Benefits Regulations was significantly wider than the Income Support Regulations he had to consider. He held:
“And the question is whether a claimant who, as in this case, has some of the family in one house and the rest in the other is entitled to the disregard only in respect of one “dwelling” and, if so in respect of which one. Now one might wonder why that question would ever be asked, having regard to the last few words of paragraph 1, until that is one looks at the definition of “dwelling” in section 84(1) of the Social Security Act 1986 …”
He concluded that definition did not justify the conclusion that the dwelling could be spread over separate buildings.
15.	Mr Bano decided as follows:
“9.	I have come to the conclusion that the claimant’s representative is correct in submitting that, for the purposes of income support and income-based jobseeker’s allowance, a dwelling can consist of more than one building. The Commissioner in CIS/081/1991 considered that the words “only one dwelling shall be disregarded” precluded the disregard of more than one building from the calculation of capital, but I take the view that paragraph 1 of Schedule 8 of the 1996 regulations is not concerned with the physical composition of a dwelling. Regulation 88 of the 1996 regulations, to which paragraph 1 refers, provides for cases where the capital of members of a claimant’s family or of other members of a polygamous marriage is to be treated as the claimant’s own capital, and in such cases the concluding words of paragraph 1 operate to prevent the disregard of the dwelling of such a family member, in addition to the claimant’s own dwelling. If the claimant has more than one unit of accommodation, which he occupies as separate dwellings, only one such dwelling can be disregarded, but I find nothing in paragraph 1 of Schedule 8 to prevent more than one dwelling or other unit of accommodation from forming a single dwelling.
10.	As the Commissioner pointed out in CIS/081/1991 the definition of “home” in the 1981 Resources Regulations was wider than the definition of “dwelling occupied as the home” in regulation 1 of the 1996 regulations, but I do not agree that that difference leads to the conclusion that only one unit of accommodation can be disregarded under the income support and jobseeker’s allowance regulations. The approach taken by the Commissioner in R(SB) 10/89, under regulation 2(1) of the 1981 Resources Regulations, was to consider whether both houses concerned were normally occupied by the members of the assessment unit (paragraph 10), and then to consider (paragraph 14) the factors necessary to decide whether the assessment unit occupied the accommodation in question as “the home”. Under paragraph 1 of Schedule 8 of the 1996 regulations, the question to be considered is whether the dwelling in question is occupied by the claimant and, if so, whether it is occupied by the claimant as his home. Although the test is changed, I see no reason why paragraph 1 of Schedule 8 cannot be applied to more than one unit of accommodation, in accordance with the approach taken under the earlier legislation in R(SB) 10/89.
11.	I have considered whether the definition of “dwelling occupied as the home” in regulation 1 of the 1996 regulations can be applied only to a single building, but I have concluded that that is not the case. As the claimant’s representative has pointed out, the definition of “dwelling occupied as the home” uses the term “dwelling”, rather than “dwelling-house” (a term well-understood in the law of landlord and tenant), and I see no reason why the definition in regulation 1 cannot be applied to a single dwelling which consists of more than one dwelling-house. Although the definition of dwelling in section 137(1) of the Social Security Contributions and Benefits Act 1992, which is the same as the definition in section 84(1) of the Social Security Act 1986 has not been included in the Jobseeker’s Act 1995, the definition of “dwelling occupied as the home” is the same in the income support and jobseeker’s allowance regulations, and I see no reason why the meaning should not be the same in both Regulations. I agree with the Commissioner in CIS/081/1991 in saying that the purpose of the words “any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises”, now in section 137(1) of the 1992 Act, was probably to bring within the scope of the definition premises which would have been outside Rent Act protection. The intention of the provision therefore seems to me to be essentially inclusionary, and I see no reason to construe it as excluding a dwelling consisting of residential accommodation in more than one building.
12.	I have therefore been persuaded by the claimant’s representative that a “dwelling occupied as the home” may comprise more than one building, but it seems to me that the number of cases in which more than one unit of accommodation can qualify for capital disregard under the income support and jobseeker’s allowance provisions may be few.”
16.	He concluded that there was too much uncertainty about the evidence to enable him to decide on the facts and he directed that the matter be remitted for rehearing before a differently constituted tribunal.
17.	The Commissioner rejected the claimant’s further submission that the second house fell within regulation 1 because it was land which it was unreasonable or impracticable to sell having regard to the claimant’s need to house his growing children there. He was of the view that those words in the definition referred to the difficulty in selling land because of its physical relationship to the dwelling. 
The arguments presented to us
18.	I am grateful to counsel for their thorough skeleton arguments and persuasive submissions. At the risk of doing them injustice I will summarise their respective cases. Mr James Maurici for the Secretary of State advanced four reasons for reversing the Commissioner.
i)	To suggest that two units of accommodation or dwelling houses can constitute “one dwelling” flies in the face of the words of the 1996 regulations and robs paragraph 1 of Schedule 1 of any meaning.
ii)	The Commissioner should not have relied on decision R(SB) 10/89 because the regulations there were significantly different: he should have followed decision CIS/081/1991 where the regulations were wholly similar.
iii)	In this field, where a person is to be treated as occupying two dwellings as his home, then the regulations make express provision for this, e.g. in respect of housing costs, and under the Housing Benefit (General Regulations) 1987.
iv)	Because the 1996 regulations are so similar to the 1987 Income Support Regulations, Parliament in approving the 1996 regulations must be presumed to have endorsed the correctness of the decision CIS/081/1991: see Hinchy v. Secretary or State for Work and Pensions [2003] EWCA Civ. 138.
19.	Mr Daniel Kolinsky submitted on Mr Miah’s behalf that:
i)	Mr Commissioner Bano was right for the reasons he gave.
ii)	The test adopted, which is one of “functional coherence” is rigorous enough to give the necessary flexibility without opening the floodgates.
iii)	A commonsense approach is necessary to avoid the anomaly of having a claimant who occupies a single home on a split site having only part of that home disregarded whereas everyone else’s home can be wholly disregarded.
iv)	Building upon that anomaly, it would offend the need to provide for positive assistance in a non-discriminatory way contrary to Article 14 of the European Convention of Human Rights.
v)	By his respondent’s notice he sought to argue, if necessary, that the ambit of what counts as “unreasonable or impractical to sell” should not be confined only to the physical location of the property.
Conclusions
20.	As the Commissioners have pointed out, there is a sad lack of coherence in the drafting of this wide range of social welfare legislation. One might have hoped for some uniformity in the definition of the essential building blocks, like a claimant’s home, which affect the allowing or disallowing of a social security-type benefit. Because of the non-application of the definition of “dwelling” contained in section 84(1) of the Social Security Act 1986 and section 137(1) of the Social Security Contributions and Benefits Act 1992, not even the Supplementary Benefit (Resources) Regulations 1981 and the Jobseeker’s Allowance Regulations 1986 are wholly and exactly comparable.
21.	Given these differences, be they large or small, I find it impossible to derive from another set of provisions any support for any convincing argument, one way or the other, as to the meaning of the regulations we have to construe. I can only look for clues as to the true meaning of “dwelling occupied as the home” from within the 1996 regulations themselves.
22.	The first clue is within paragraph 1 itself in the words “notwithstanding regulation 88”. Under regulation 88 the capital and income of the claimant’s partner or polygamous “wife”, which by virtue of section 13(2) of the Act are to be treated as his, are to be aggregated with his. Without the qualification “notwithstanding regulation 88”, it seems likely or highly arguable that any separate home of the partner/“wife” would also be disregarded. Certainly one can be sure at least that the legislature had in mind the possibility that there would be two dwellings competing for being or both claiming to be disregarded.
23.	The provisions of Schedule 2 to the 1996 regulations confirm that the legislature was alive to the possibility of there being two dwellings available for consideration. Paragraph 3(6) shows that the draftsman had in mind the possibility that a person was liable to make payments in respect of two dwellings and treated him to be occupying both dwellings as his home in the circumstances prescribed, viz., in cases of domestic violence, university residence, and moving house.
24.	I find it difficult, however, to draw any satisfactory conclusion from these fact-specific examples in paragraph 3 or from the cases of the partner/polygamous wife in regulation 88. None of this seems to me to throw light on the crucial question whether separate buildings can constitute a single dwelling occupied as the claimant’s home. As Mr Kolinsky submits, simply to conclude that two separate buildings cannot be a single dwelling begs the question.
25.	Given that the draftsman had the possibility of two dwellings in mind, what did he intend to include in or exclude from the meaning of “dwelling”.
26.	If one approaches construction of the words literally, one notes that the word “dwelling” has been chosen, not, for example, “dwelling-house” nor “residential accommodation”. “Dwelling” is defined by the Oxford English Dictionary as “Place of residence; dwelling-place, habitation, house”. “Dwelling-place” is “A place of abode”, whereas “Dwelling-house” is “A house occupied as a place of residence, as distinguished from a house of business, warehouse, office, etc.” Because the single word is expanded into a phrase “dwelling occupied as the home” I am given the impression that the legislature intended to convey the function to be served by the concept of a dwelling rather than to connote its constituent elements, the bricks and mortar of the dwelling. The function is a place serving as home for the claimant. That place is not necessarily confined to a single building. For me this emphasis is reinforced by the inclusion within “dwelling” of “any garage, garden and outbuildings normally occupied as his home including any premises not so occupied …”. A barn converted for residential accommodation is part of the dwelling constituted by the farmhouse and that converted barn. I appreciate that not too much can be derived from that analogy because they both lie within the same curtilage, but it gives the flavour.
27.	A test for determining where home is can conveniently be expressed in the way the Commissioner directed the Tribunal to approach the question, viz., by asking whether “the claimant’s arrangements were such that one house was, in effect used as an annex of the other, or to put it another way, whether this was a single home on a split site. Occasional use of the second house by the claimant or his dependent children will not assist him, because the tribunal must be satisfied that the second house was “normally” occupied by the claimant as his home”.
28.	If one needs to look further, one should look to see where commonsense, fairness and justice take one. Taking the latter consideration first, the facts of this case provide a proper background for the question. Here is a man who organised his domestic life at a time when he was in good and apparently stable employment. He bought the property two doors away to house his growing family. Then he fell upon hard times. If in 1992 he had sold number 11A and bought a single five/six bedroom property, that property would have to be disregarded. It surely cannot be fair that he should suffer when the purpose of having two properties is exactly the same as having only one.
29.	Simple justice seems to me to dictate that a man in the applicant’s position should not be discriminated against adversely to the owner of a single but large property for his family.
30.	Commonsense dictates that the court can construe the words in a way which does not make them unworkable or impractical. Assume, as the tribunal subsequently found, the claimant truly does use both houses as his home, how is a decision maker to determine which of the two is to be disregarded? Can the claimant elect? Is it the property of greater, or of lesser value? Is it the first he acquired or the last? Has some (but goodness knows what) attempt to be made to ascertain which is the more significant home? Those questions seem to me impossible of answer and militate against the Secretary of State’s submissions. One cannot have a scheme which is incapable of easy, sensible and certain application.
31.	On the other hand, the claimant’s construction does allow commonsense to prevail. In requiring both properties to be occupied as the home at the same point in time, it is perfectly easy to distinguish those two properties seen as a unit from the second home which a hypothetical claimant may have in the country as a weekend retreat. Allowing only one of those homes to be disregarded is entirely just and fair as between the public purse and the claimant for this benefit.
32.	If one applies this functional test as opposed to a structural test, a decision maker can with commonsense determine what the claimant is using as his home. It is the place where he lives, where he eats, sleeps, bathes, relaxes, enjoys with his family. Such a test avoids the absurdities that two semi-detached houses would not be a single dwelling, however used, so long as they remain detached. Not even going out of the back door of one, through the communal garden and in the back door of the other could make it one dwelling. But knock a hole through the party wall and then there is structural integration and presumably two dwellings have been converted into one. The subtleties of such distinctions produce an absurdity that has to be avoided by a more realistic interpretation.
33.	I would test this by applying a purposive construction. The purpose of these provisions is surely to provide benefits for those in need. A liberal, as opposed to a strict construction demands that they be construed in favour of a claimant to relieve hardship rather than in favour of the Secretary of State to protect the public purse out of which the benefits are to be paid. If the Secretary of State who laid the regulations before Parliament could not do so in a way which made his position, clear, then the regulations are to be construed against him.
34.	I am not impressed with Mr Maurici’s argument that Parliament must have intended first that the 1996 regulations should have the same meaning as the 1987 Income Support Regulations, and, secondly, that decision CIS/081/1991 has received Parliamentary approval. My rejection of that submission owes as much to the absence of an equivalent to section 84(1) of the Social Security Act 1986 in the 1995 Act, and hence to a small difference between the two provisions, as to complete cynicism about the adequacy of Parliamentary scrutiny of subordinate legislation of this kind.
35.	I do not find it necessary to consider the unfairness and discriminatory effect of the regulations as a discrete human rights point. I am satisfied that domestic principles of construction lead to the conclusion that Mr Commissioner Bano was correct.
36.	It is, therefore, unnecessary to consider the respondent’s notice and decide whether or not the claimant’s alternative argument is well founded. I say nothing about that question at all.
37.	It follows that, in my judgment, this appeal should be dismissed.

LORD JUSTICE MANCE:

38.	This is the Secretary of State’s appeal by permission of the Social Security Commissioner, Mr Commissioner Bano, who by decision dated 23 May 2002 determined that a “dwelling occupied as a home” could in appropriate circumstances consist of two separate (non-adjoining) houses - in this case Nos. 11a and 19 Haseley Road, Handsworth - so that, under Schedule 8 paragraph 1 of the Jobseekers Allowance Regulations 1996, the value of both houses would fall to be disallowed in calculating the capital of the respondent, Mr Miah, for the purposes of a claim to income-based Jobseekers Allowance.
39.	Mr Commissioner Bano remitted the matter to a new tribunal to determine whether on the facts the two houses did in all the circumstances constitute one “dwelling occupied as a home” by Mr Miah. The Birmingham Unified Appeal Tribunal held on 26 July 2002 that they did. The Secretary of State does not challenge that conclusion, if it was permissible in law, and it is not for us therefore to express any view on its correctness in any other respect. I mention that the tribunal reached its conclusion in the light of what it found were the following unusual facts: neither house is large enough for the whole of Mr Miah’s family; and he himself sleeps for four or five nights a week at No 19 and for the remaining nights at No 11a, where he and the whole family spends their leisure time and eats their meals.
40.	The Jobseekers Act 1995 provides as follows:
“Income and capital: general
12.—(1) In relation to a claim for a jobseeker’s allowance, the income and capital of a person shall be calculated or estimated in such manner as may be prescribed.
…
(4) Circumstances may be prescribed in which—
(a) a person is treated as possessing capital or income which he does not possess;
(b) capital or income which a person does possess is to be disregarded;
(c) income is to be treated as capital;
(d) capital is to be treated as income.
“Income and capital: income-based jobseeker’s allowance
13.—(1) No person shall be entitled to an income-based jobseeker’s allowance if his capital, or a prescribed part of it, exceeds the prescribed amount.
(2) Where a person claiming an income-based jobseeker’s allowance is a member of a family, the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of the claimant.”
41.	The Jobseeker’s Allowance Regulations 1996 (SI 1996 No. 207) provide:
“Capital limit
107.	For the purposes of section 13(1) and (2A) (no entitlement to an income-based jobseeker’s allowance if capital exceeds a prescribed amount)
(a)	except where paragraph (aa) or] (b) applies, the prescribed amount is £8,000; …
Calculation of capital 
108.—(1) Subject to paragraph (2), the capital of a claimant to be taken into account shall be the whole of his capital calculated in accordance with this Part and any income treated as capital under regulation 110. 
(2) There shall be disregarded from the calculation of a claimant’s capital under paragraph (1) any capital, where applicable, specified in Schedule 8.”
42.	Regulation 88 supplements section 13(2) of the Act:
“Calculation of income and capital of members of claimant’s family and of a polygamous marriage
88.—(1) Subject to paragraphs (2) and (3) and regulations 88ZA (calculation of income and capital of a joint-claim couple) and 106 (modifications in respect of children and young persons), the income and capital of a claimant’s partner and the income of a child or young person which by virtue of section 13(2) is to be treated as the income and capital of the claimant, shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the “claimant” shall, except where the context otherwise requires, be construed, for the purposes of this Part, as if it were a reference to his partner or that child or young person.”
43.	Schedule 8 provides:
“SCHEDULE 8
CAPITAL TO BE DISREGARDED
Regulation 108(2)
1. The dwelling occupied as the home but, notwithstanding regulation 88, (calculation of income and capital of members of claimant’s family and of a polygamous marriage), only one dwelling shall be disregarded under this paragraph.”
44.	Regulation 1 of The Jobseeker’s Allowance Regulations contains the following definition:
 ““dwelling occupied as the home” means the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately, in particular, in Scotland, any croft land on which the dwelling is situated; …”
45.	The Secretary of State submits that the language of Schedule 8 read with the definition in Regulation 1 excludes any possibility in law of two separate houses constituting a single “dwelling occupied as the home”. He points out that under Regulation 1 the unit of assessment is the claimant alone, and submits that the provision in Schedule 8 paragraph 1 that “only one dwelling shall be disregarded under this paragraph” is directly aimed at the present type of situation.
46.	The qualification that “only one dwelling shall be disregarded under this paragraph” is however introduced with the bracketed direction that it applies “notwithstanding regulation 88”. That regulation deals with the manner in which the income and capital of a claimant’s partner or of a child or young person is to be calculated (for the purpose of treating it as the claimant’s under section 13(2)). It stipulates that the calculation shall be in accordance with certain further provisions “in like manner as for the claimant”, and reinforces this with a direction that any reference to “the claimant” in such provisions shall be construed “as if it were a reference to his [the claimant’s] partner or that child or young person”. Apart from the qualification in Schedule 8 paragraph 1, it would therefore have been well-arguable that a separate “dwelling occupied as a home” by the claimant’s partner or a relevant child or young person fell to be disregarded. The most obvious purpose of the qualification was to avoid this. Although the qualification in Schedule 8 paragraph 1 says simply that “only one dwelling shall be disregarded” (rather than that “only one dwelling occupied as the [or a] home shall be disregarded”), the reference to regulation 88 makes it clear that it must at all events embrace situations where two dwellings are each occupied as a (separate) home, e.g. in one case by the claimant and in the other by a partner.
47.	Another obvious effect of the qualification is that a claimant cannot maintain that he has two dwellings each of which is occupied as a separate home and each of which should be disregarded. A weekend retreat or country cottage could not on this basis be disregarded. But that is not the situation with which the Commissioner was concerned. He was asked to determine whether, under Schedule 8 paragraph 1 and bearing in mind the definition in regulation 1, “the dwelling occupied as the home” may be spread over two physically separate buildings, so that there is still only one home, the whole value of which may be disregarded.
48.	I have come to the conclusion, not without some doubt, that this is possible. A person may acquire two neighbouring houses or flats, but may not or may not be able to incorporate them into one physical building. He may nonetheless, although no doubt relatively rarely, occupy them to all intents and purposes as if they constituted a single enclosed unit. This is particularly likely, if, as here, neither house by itself caters for all his family’s needs.
49.	I do not consider that the fact that both Schedule 8 paragraph 1 and regulation 1 speak in the singular throughout leads to a different conclusion. Whether one is speaking of the “dwelling occupied as the home” or simply of the “dwelling”, the issue is whether the word can embrace exceptional situations where it can fairly be said that a person’s “dwelling” or his “dwelling occupied as a home” spreads over more than one physical building.
50.	Regulations 83(f) and 84(1)(g) provide for the inclusion in the weekly amount payable to a claimant of:
“any amounts determined in accordance with Schedule 2 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule”.
Schedule 2 paragraph 1(1) provides that:
“Subject to the following provisions of this Schedule, the housing costs applicable to a claimant are those costs—
a) which he or, where he is a member of a family, he or any member of that family is, in accordance with paragraph 2, liable to meet in respect of the dwelling occupied as the home which he or any other member of the family is treated as occupying; …”
Schedule 2 paragraphs 2 and 3 provide:
“Circumstances in which a person is liable to meet housing costs
2.—(1) A person is liable to meet housing costs where—
(a) the liability falls upon him or his partner or, where that person is a member of a joint-claim couple, the other member of that couple, but not where the liability is to a member of the same household as the person on whom the liability falls;
(b)	because the person liable to meet the housing costs [is not meeting them], the claimant has to meet those costs in order to continue to live in the dwelling occupied as the home and it is reasonable in all the circumstances to treat the claimant as liable to meet those costs;
(c) he in practice shares the housing costs with other members of the household none of whom are close relatives either of the claimant or his partner, or, where that person is a member of a joint-claim couple, the other member of that couple, and
(i) one or more of those members is liable to meet those costs, and
(ii) it is reasonable in the circumstances to treat him as sharing responsibility.
(2) Where any one or more, but not all, members of the claimant’s family are affected by a trade dispute, the housing costs shall be treated as wholly the responsibility of those members of the family not so affected.
Circumstances in which a person is to be treated as occupying a dwelling as his home
3.—(1) Subject to the following provisions of this paragraph, a person shall be treated as occupying as his home the dwelling normally occupied as his home by himself or, if he is a member of a family, by himself and his family and he shall not be treated as occupying any other dwelling as his home.
(2) In determining whether a dwelling is the dwelling normally occupied as the claimant’s home for the purposes of sub-paragraph (1) regard shall be had to any other dwelling occupied by the claimant or by him and his family whether or not that other dwelling is in Great Britain.	

…
(6) Where a person is liable to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only—
(a) where he has left and remains absent from the former dwelling occupied as the home through fear of violence in that dwelling or by a former member of his family and it is reasonable that housing costs should be met in respect of both his former dwelling and his present dwelling occupied as the home; or
(b) in the case of a couple or a member of a polygamous marriage where a partner is a full-time student or is on a training course and it is unavoidable that he or they should occupy two separate dwellings and reasonable that housing costs should be met in respect of both dwellings; or
(c) in the case where a person has moved into a new dwelling occupied as the home, except where sub-paragraph (5) applies, for a period not exceeding four benefit weeks if his liability to make payments in respect of two dwellings is unavoidable.
(7) Where—
(a) a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and
(b) he had claimed a jobseeker’s allowance before moving in and either that claim has not yet been determined or it has been determined but an amount has not been included under this Schedule and if the claim has been refused a further claim has been made within four weeks of the date on which the claimant moved into the new dwelling occupied as the home; and
(c) the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and—
(i) that delay was necessary in order to adapt the dwelling to meet the disablement needs of the claimant or any member of his family; or
(ii) the move was delayed pending the outcome of an application under Part VIII of the Benefits Act for a social fund payment to meet a need arising out of the move or in connection with setting up the home in the dwelling and either a member of the claimant’s family is aged five or under or the claimant’s applicable amount includes a premium under paragraph 10, 11, 12, 13, 15 or 16 of Schedule 1; or
(iii) the person became liable to make payments in respect of the dwelling while he was a patient or was in residential accommodation, 
he shall be treated as occupying the dwelling as his home for any period not exceeding four weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments.”
51.	These careful provisions of Schedule 2, dealing with situations in which housing costs can be claimed, show the legislator’s concern to regulate situations in which a claimant might claim to occupy, either alone or with his family, more than one house, including a second house abroad (see paragraph 3(2)). Recognising that they may only assist indirectly in the construction of Schedule 8 paragraph 1, they confirm that such situations were at the forefront of the legislator’s mind, and that the concluding words of Schedule 8 paragraph 1 may therefore have been directed simply to them, and not to situations where it could properly be said that a claimant had one home only, but spread over two buildings.
52.	More broadly, it was submitted on behalf of Mr Miah that, on the Secretary of State’s case, there would be an odd difference in what was disregarded, between a claimant whose home was (for whatever reason) spread over two physical buildings and a claimant who had managed to find a house suitable for himself and his whole family. That argument has less force than might at first sight appear, since the issue under Schedule 8 paragraph 1 and regulation 1 is whether the dwelling is occupied as the claimant’s home, and a claimant who had two houses, in one of which he lived and in the other of which other of his family members lived, would probably not be able to claim that both houses were normally occupied “by the claimant” as his home as required under regulation 1.
53.	What can, however, be said is that a construction that leads to consistent disregard of the value of the claimant’s home is preferable in principle to a construction that leads to its disregard, so long as it consists of a single physical building, but which only disregards part (which part being uncertain) if it spreads over two physical buildings. This point appears to me to have force, whether or not such a distinction would be consistent with articles 8 and 14 of the Human Rights Convention (as it may not be, although I need express no view on that).
54.	Both parties sought assistance from a review of the provisions of other primary or subordinate legislation in the social security field, and from various Social Security Commissioners’ decisions under that legislation. There may be limited value in comparisons with different statutory provisions. But the position can be summarised as appears in the following paragraphs (paragraphs 55 to 59:
55.	The Supplementary Benefit (Resources) Regulations 1981 (SI 1981 No 1527) made under the Supplementary Benefits Act 1976 contained in regulation 2 the following definition of the word “home”:
“‘home’ means the accommodation, with any garage, garden and outbuildings, normally occupied by the assessment unit and any other members of the same household as their home and it includes also any premises not so occupied which it would be impracticable or unreasonable to expect to be sold separately, in particular the croft land where, in Scotland, the home is a croft.”
Regulation 2 defines “assessment unit” as meaning “the claimant, and any partner and dependant of the claimant”. By regulation 6:
“In calculating a claimant’s capital resources the following shall be disregarded:—
(a) the value of—
(i) the home,
(ii) any premises which have been acquired and not yet occupied by the assessment unit but which it is intended will be the home within 6 months of the date of acquisition or such longer period as is reasonable in the circumstances, …
except in relation to any part of the premises which, having regard to all the circumstances, it would be practicable or reasonable to regard as a property which could be realised separately …”.
56.	By Decision R(SB) 10/89 dated 30 January 1989 Mrs Commissioner R.F.M. Heggs considered, in this context, the position of a claimant with two houses, neither big enough to house his whole family, one of which he used for sleeping only, since it had no working kitchen and in the other of which he and his family ate. The Commissioner concluded that, on these facts, the former house was, in effect, an annex to the latter, and that both constituted the “home” within the definition in the 1981 Regulations. 
57.	Regulation 2 and Schedule 3 in the Income Support (General) Regulations 1987 (SI 1987 No. 9167) contain the same definition of “dwelling occupied as the home” and similar provisions regarding housing costs as regulation 1 and Schedule 2 in the Jobseeker’s Allowance Regulations 1996. Schedule 10 paragraph 1 in these 1987 Income Support Regulations is in similar form to Schedule 8 paragraph 1 in the 1996 Jobseekers Regulations. In the context of the 1987 Income Support Regulations, the legislature did go on to provide an additional definition of the word “dwelling”. The definition, contained in the Social Security Contributions and Benefits Act 1992 section 137, reads:
“dwelling” means any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises”.
No such definition is found in the Jobseekers legislation. (There is a similar definition in The Social Security Administration Act 1992, under which benefit is defined to include a jobseeker’s allowance; however counsel did not suggest that this Act was relevant to the present issue concerning Mr Miah’s substantive entitlement to jobseekers’ allowance.)
58.	The meaning of the phrase “dwelling occupied as the home” was considered by Mr Commissioner J. Mitchell in Decision CIS/427/1991 dated 21 September 1992 and by Mr Commissioner R.A. Sanders in Decision CIS/081/1991 dated 22 March 1993. The former decision concerned the extent to which land could be regarded as a garden or as premises which it was impracticable or unreasonable to sell separately. It is the latter decision that is more relevant. The presently relevant question was the extent to which the value of a second property in which some members of the claimant’s family had been housed (but which had in fact been sold shortly after the date of claim) could be disregarded in calculating the claimant’s capital at that date. The Commissioner pointed out the difference in wording between the jobseekers legislation (focusing on the position of the claimant and his home) and the Supplementary Benefit (Resources) Regulations 1981 (which focused on the use by the whole “assessment unit” of accommodation as “their home”). On that basis he distinguished Decision R(SB) 10/89 - see paragraph 56 above. He also considered that the definition of “dwelling” in section 137 of The Social Security Contributions and Benefits Act 1992 was not aimed at the present issue, but rather at avoiding the complex question thrown up by Rent Act authorities, whether a unit was sufficiently self-contained to attract protection. Looking at Schedule 10 paragraph 1, the Commissioner evidently found little difficulty in concluding that the second building was not occupied by the claimant as his home at the date of claim and did not fall to be disregarded for the purposes of assessing the amount of his capital.
59.	The most that the Secretary of State can derive from this decision is that the Commissioner was evidently surprised at the suggestion that two buildings could both be disregarded under provisions paralleling those of Regulation 1 and Schedule 8 paragraph 1 of the 1987 Regulations. However, cases of the present nature are fact-intensive, and the present case is on that basis clearly different from any with which the Commissioner was concerned. The question in the present case is whether a single claimant can ever have a home which spreads across two physical buildings, so as to constitute for the purposes of Regulation 1 and Schedule 8 paragraph 1 a single “dwelling occupied as the home” (as the Tribunal has held would be the case, if this is possible in law). Decision CIS/081/1991 does not either cover or in its reasoning exclude that possibility.
60.	It follows from paragraphs 55 to 59 that there is nothing in other primary or subordinate legislation in the social security field, or in previous Social Security Commissioners’ decisions under that legislation, to alter my initial view that the concluding words of Schedule 8 paragraph 1 were probably directed to situations in which a claimant might claim to occupy, either alone or with his family, more than one house, including a second house abroad, rather than to situations where it could properly be said that a claimant had one home only, but spread over two physical buildings. That is the conclusion that I reach. While I have reached it independently, I note that it is also evidently the view of the editors of Social Security Legislation (Sweet & Maxwell, 2002) – see paragraph 2.26, where they comment favourably on the present Commissioner’s decision. I therefore consider that the appeal should be dismissed.

MR JUSTICE NELSON:
I agree with both judgments for the reasons given by my Lords.
Order: appeal dismissed with costs; to be subject to detailed assessment if not agreed; no order in respect of respondent’s cross-appeal; application for permission to appeal to the House of Lords refused.
(Order does not form part of the approved judgment)