Northern Ireland - Social Security and Child Support Commissioners' Decisions

[2007] NISSCSC C1_06_07(HB) (20 November 2007)

Decision No: C1/06-07(HB)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992
SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998
HOUSING BENEFIT
Appeal to a Social Security Commissioner on a question of law from a Tribunal's decision dated 20 January 2006
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal, leave having been granted by a Commissioner by the claimant against a decision dated 20 January 2006 of an appeal tribunal sitting at Belfast which affirmed the decision of a decision-maker. The decision the subject matter of the appeal was to the effect that the claimant was not entitled to housing benefit (HB) in respect of the house that she lived in as the house was under her full control and she had exclusive use of it.
2. As Chief Commissioner I directed in accordance with Article 16(7) of the Social Security (Northern Ireland) Order 1998 that this appeal was to be dealt with by a Tribunal of Commissioners. A hearing, accordingly took place before me and Mrs Commissioner Brown on 18 May 2007. Shortly after that date, Mrs Commissioner Brown became seriously indisposed and has remained so. Accordingly, in the circumstances, I asked the parties to consent to the appeal proceedings being decided by me alone. Both parties agreed. Accordingly, to regularize the position, I formally rescind the direction of 18 May 2007 and proceed to decide it as a single Commissioner, not as a member of a Tribunal of Commissioners.
3. At the hearing of the appeal the claimant attended represented by her ex-husband, Mr C G, while Mr Boyle, solicitor, of the Departmental Solicitors' Office attended to represent the Department, accompanied by Mr Crilly of its Decision Making Services Branch.
4. The tribunal found as a fact that the claimant had previously lived at "….." with her former husband who had been the legal owner of the property from 12 October 1987. It also found that the claimant had signed a "Form of Consent" on 26 April 2002 which agreed to her former husband transferring ownership of the property to their son which took place at around the same time. The tribunal noted that the claimant separated from her husband in early May 2004 when she temporarily moved out of the former marital home. The claimant returned to live in the property on 29 May 2004. On this date her son, the owner of the house signed an agreement (referred to as "TAB 16" in the documents before the tribunal stating:

"This is to certify that all property and it's [sic] contents on folio DN10218 "………" shall be under the full control of, and for the exclusive use of [the claimant] DOB 12.03.1947 for her day."

This document was also signed by the son's wife and was witnessed by two other family members.

The tribunal concluded:

"The appeal tribunal is wholly convinced that the appellant does have a legal life interest in the property at "…………."

One of the factors on which the tribunal based its decision was the written agreement referred to in the previous paragraph. The tribunal alluded to this agreement being drawn up by the claimant's son's solicitor. Indeed, the tribunal went on to state of the document:

"In the view of the appeal tribunal, the clear intention from the wording of the document, together with the facts that it was drawn up by the appellant's son's solicitor, and that her son, and the other members of the family were present when it was executed, was to give the appellant a legal life interest in property at "………………….".

That the intention of the document was to give the appellant a legal life interest in the property at "……

……..", is confirmed by the appellant's own evidence concerning her rights in the property. In her oral evidence to the appeal tribunal, the appellant was fundamentally clear that she would remain in the property at "……

…….", for the duration of her lifetime. The appellant gave evidence that she was not convinced that her son would take action to remove her from the property, in the eventuality of her being unable to pay rent in respect of it."

5. The legislative background to the issues in the case can be usefully set out at this stage (and I have relied on and am indebted to Mr Crilly for his written submissions explaining the position).
6. In Great Britain there are two separate benefits providing assistance with housing costs for people on low incomes. They cover two separate liabilities ie HB in respect of rent and council tax benefit in respect of council tax. In Northern Ireland there is only one benefit, namely HB, which contains provisions for both rent and rates.
7. The reason for the differences outlined above is that Northern Ireland retained domestic rates when these were replaced in Great Britain by the community charge and subsequently council tax. Under the principle of parity in social security, the policy intention is to ensure that householders in Northern Ireland are treated in the same way as householders in Great Britain. This means that the rate rebate element of HB in Northern Ireland should mirror as closely as possible the provisions of the council tax benefit scheme in Great Britain.
8. Section 129 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992, "the Act", so far as is relevant (and part of which I have highlighted) provides:

"Housing benefit

129.-(1) A person is entitled to housing benefit if-

(a) he is liable to make payments in respect of a dwelling in Northern Ireland which he occupies as his home;

(b) …

(c) …

(2) In subsection (1) above "payments in respect of a dwelling" means such payments as may be prescribed, but the power to prescribe payments does not include power to prescribe mortgage payments. ..."

9. The relevant regulations are the Housing Benefit (General) Regulations (Northern Ireland) 1987, "the General Regulations". (Those regulations were largely consolidated into the following two sets of regulations with effect from 20 November 2006: the Housing Benefit Regulations (Northern Ireland) 2006, and the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006). As the claim in question was made before the regulations were consolidated the General Regulations are the appropriate regulations in these proceedings.
10. "Eligible rates" and "eligible rent" are defined in regulation 2 of the General Regulations and each is to be construed in accordance with regulation 9 (which sets out in detail with the payments that may be met by HB and how much may be met) and regulation 10 (which deals with rates in a similar way). These are in effect, the prescribed payments referred to in section 129 above. Regulation 7, which sets out the circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling, does not differentiate between the rent and rates elements of HB.

Issue

11. The main issue before me is whether the claimant was liable to make payments in respect of her dwelling occupied as the home. It is the Department's submission that she was not so liable in respect of the rent element.
12. The claimant had various grounds of appeal including allegations of irregularities on the part of the Northern Ireland Housing Executive (NIHE) and bias on the part of the tribunal. I comment only briefly on these to say that as regards the tribunal there is no substance whatsoever to these allegations. The tribunal, consisting of a legally qualified panel member (which is a proper constitution under regulation 22 of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001), acted in a fair and impartial manner throughout. I find these allegations without substance.
13. As regards the NIHE the alleged irregularities appear to relate mainly to how evidence had been obtained. I do not conclude there to have been any irregularities as alleged and, in any event, my concern is with the tribunal's decision which was reached on relevant and admissible evidence. I find there to be no error on the tribunal's part in the matters alleged by the claimant.
14. At the hearing Mr Boyle conceded that there was an error in the decision relating to the tribunal's omission to consider entitlement to rates. He submitted however that in every other respect the tribunal's decision was correct. In particular he submitted that, as evidenced by TAB 16 of the documents, the tribunal was correct to conclude that the claimant had a life interest in the premises, the subject of the claim for HB, and was not liable to pay rent thereon. The claimant submitted that she was so liable, that she was already in the premises on the morning of the date the TAB 16 document was prepared and it was merely a means of protecting her occupancy.
15. I agree with Mr Boyle that the tribunal was entitled to conclude, as it did, that the claimant's occupation of the relevant premises was on foot of the life interest evidenced by the TAB 16 document and indeed by other circumstances as outlined by the tribunal in its very full statement of reasons.
16. As regards the rates element, clarification of the legislation was requested from the Department and a week was allowed for this to be obtained. During that week the Office was further bombarded with documentation from the claimant. Much of this related to the TAB 16 document. I found little of relevance in this further documentation and I do not intend to comment in detail on it. The tribunal was dealing with the facts of the case and set out very considerable findings thereon. It is not the role of a Commissioner to retry factual issues where, as here, the facts found are entirely sustainable on the evidence.
17. The issue of rates was one which was not dealt with by the tribunal. However, it was revealed at the hearing on 18 May 2007 that HB in respect of rates were in fact being paid. The claimant's then solicitor on 20 January 2006, the date of the tribunal hearing, stated that, even if she had a life interest in the property, she would still be liable for rates. However, even though rates were alluded to, the tribunal did not deal with the issue and, Mr Crilly has submitted, the tribunal erred in law by not so doing. I find no difficulty accepting that the Department is correct in this submission. However, the submission then becomes much more complicated because it seems that the presenting officer at the hearing on 20 January 2006 spoke to the claimant's then solicitor outside the tribunal hearing and advised him that HB in respect of rates would be awarded on receipt of the relevant rates bill. HB in respect of rates was then awarded on 31 January 2006 with effect from 7 June 2004. This purported decision has no legal basis in so far as there was no consideration given as to what decision was being revised or superseded and whether there was any grounds so to do.
18. The Departmental submission now is that I should find that the tribunal erred in law by failing to make a determination on rates (and I accept that this submission is correct) but that I should then determine the issue to the effect that HB, although not allowable in respect of rent, is allowable in respect of rates with effect from 7 June 2004. The effect of this would be to give legal effect to the purported current award of HB in respect of rates. Mr Boyle emphasized that this approach would be in ease of the claimant.
19. The position as described is most irregular and ought not to have arisen. However, I cannot ignore the fact that it has happened. In addition I cannot ignore the fact that it is the claimant who, in the main, will be inconvenienced if I find that the matter can only be regularized by sending the case back to a tribunal to decide this matter in the correct way.
20. Mr Crilly also drew my attention to an issue which had been affecting the distribution of HB in Northern Ireland and which has come to the attention of the Department during this litigation. In particular he stated:

(a) Regulation 7(1)(h) of the General Regulations provides:

(h) he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises and less than five years have elapsed since he or, as the case may be, his partner ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership;

(This provision was reinacted in consolidation regulations (the Housing Benefit Regulations (Northern Ireland) 2006 and, in particular, regulation 9(1)(h) which came into operation on 20 November 2006) and there was a similar related consolidation in the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006.)

(b) In the event that a claimant or partner had within the previous five years owned the home in which they reside, and where there is no issue of them having to relinquish ownership of the property in order to remain living in it, then in accordance with regulation 7(1)(h), they shall be treated as though they were not liable to make payments.

(c) This provision seems to apply to both rent and rates liabilities as there is nothing to distinguish them.

(d) However there is a recent amendment to the Housing Benefit (Miscellaneous Amendments) Regulations (Northern Ireland) 2007. This further amendment came into effect on 1 June 2007. Regulations 3(2) and 4(2) of that regulation amends both versions of regulation 9(1)(h) of the consolidation regulations (which is equivalent to regulation 7(1)(h) set out above). The amendment changes the reading from that set out above to the following:

(h) he previously owned, or his partner previously owned, the dwelling in respect of which the liability in respect of rent arises and less than five years have elapsed since he or, as the case may be, his partner ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership; (my emphasis).

(e) The explanatory note at the back states that the purpose of the amendment is to clarify that the particular restriction in relation to liability applies to rent; thereby taking rates out of the equation. Accordingly while the amendment clarifies the policy intention it also actually changes the legislation and therefore it seems readily arguable that HB in respect of rates could not be allowed prior to 1 June 2007.

(f) However, many claims for HB have been awarded in respect of rates under regulation 7(1)(h) and there is little doubt that that was the policy intention.

(g) These awards, however, may not be in accordance with the statutory framework.

(h) The Department therefore may be forced to look afresh at these awards.

21. Mr Crilly's submission on these points seem well founded. However, as he concedes, any ruling of mine would merely be obiter dicta as the point is not directly before me. I am also reluctant to put into question many apparently legitimate HB payments in proceedings that have not raised the issue. Accordingly I will make no direct or indirect ruling on the matter except to say that further legislation might be required to resolve the situation.
22. I find that the tribunal was correct in holding that it had been established that the claimant has a right of residence in the property which she occupies as her home and, because of this, she does not have a liability for rent and therefore is not entitled to HB in respect of rent as the conditions of section 129 have not been satisfied.
23. Nevertheless, for the reasons stated at paragraph 17, this appeal must be allowed as I must hold that the tribunal has erred in law by failing to make a determination on rates. Furthermore I have decided to give the decision which the tribunal ought to have given. This is that the claimant was not entitled to HB for rent from and including 29 May 2004 but was entitled to HB in respect of rates from 7 June 2004. Any payment to her of HB for rates is to be treated as a payment on account.

(signed): J A H Martin QC

Chief Commissioner

20 November 2007