ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
JUDGE A LLOYD-DAVIES
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
MR JUSTICE WARREN
| SUGHRA AHMED
|- and -
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David Blundell (instructed by DWP Legal Services for the Respondent
Hearing date : 12 October 2011
Crown Copyright ©
Mr Justice Warren:
"….was not to purchase alternative accommodation more suited to the special needs of a disabled person. The loan taken out [sic] when you were in receipt of income support. This is called a 'relevant period'. Help toward housing costs cannot be given if a loan is taken out in a 'relevant period'."
"In this case, the loan was not obtained to acquire alternative accommodation that was more suited to the needs of the disabled person because the loan was obtained to acquire the existing accommodation occupied by the disabled person. The exemption therefore does not apply in this case…."
"The condition specified in this sub-paragraph is that the loan was taken out, or an existing loan increased, to acquire alternative accommodation more suited to the special needs of a disabled person than the accommodation which was occupied before the acquisition by the claimant."
"20. There are no time limits in subparagraph (9) and in particular no requirement of immediacy linking the time of acquisition, the time the loan is taken out, and the time the claimant moves. It will depend entirely on the circumstances. What the subparagraph requires for it to apply in this case is:
(a) that alternative accommodation is acquired,
(b) that the acquired accommodation is more suited to the special needs of a disabled person than the accommodation occupied by that person before the acquisition, and
(c) that the loan is taken out to enable the accommodation to be acquired.
21. The tribunal found none of those facts. The matter must go back for a tribunal to determine them."
The decisions of Judge Neary and of Judge Lloyd-Davies
"12. …..The tribunal accepted that the property is alternative accommodation which was acquired; and that it was more suited to the needs of the appellant's disabled son than the accommodation in Old Trafford as it was closer to the appellant's family, who help care for her son; and that the loan was taken out to acquire the accommodation. The tribunal decided that the fact that the appellant and her son had occupied the property for some 6 years before the appellant acquired it did not prevent the property from being "alternative accommodation more suited to the special needs of a disabled person than the accommodation which was occupied before the acquisition by the claimant" for the purposes of sub-paragraph (a)."
a. The applicant lives in property A. She agrees, subject to contract, to purchase property B which is more suitable accommodation within paragraph 4(9). She is allowed by the vendor to move into property B before exchange of contract while she organises a loan for the purchase and moves out of property A. There is a gap of say one month between her move and her acquisition of property B.
b. The applicant lives in property A. It is destroyed by fire and she moves to live with her parents whose house, coincidentally, provides accommodation which is more suitable than the property which has been destroyed for the purposes of paragraph 4(9). After a month or so she acquires with the aid of a loan a new property, property B, which is more suitable than property A had been (although no more suitable than her parents' house).
"3. The Tribunal in essence found that the claimant's current home was more suitable accommodation than the rented property she had previously occupied prior to moving into her current home in 2001, and that the fact that the claimant had occupied her current home for some 6 years before her acquisition of it did not prevent her from satisfying the condition of paragraph 4(9). In my judgment the tribunal erred in law. I accept that the acquisition, loan and move do not need to be contemporaneous but there does, however, in my judgment have to be a link between them. Where the claimant moved to the alternative accommodation in 2001, as is the present case, the necessary link is not established: in truth what happened in the present case was not that the loan was taken out for the acquisition of alternative more suitable accommodation but that the loan was taken out for the purposes of the acquisition of the existing, already suitable, accommodation. For these reasons the appeal must be allowed."
Lord Justice Rimer
Lord Justice Longmore