UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the Bristol appeal tribunal, held on 13th December 2001 under reference U/03/186/2001/02416, is not erroneous in point of law.

The appeal to the Commissioner

2. The appellant in this case is a housing benefit claimant. The respondent is his local authority, South Gloucestershire Council.
3. This case comes before me as an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of the tribunal's chairman. The local authority does not support the appeal.

The history of the case

4. The claimant was living in council owned property and being paid housing benefit in respect of it. He obtained a tenancy of a housing association property. The tenancy began on 26th June 2000. But his move into the property was delayed on account of his disability and the delay in obtaining a grant to cover removal expenses. The local authority refused him housing benefit in respect of the housing association property for the inclusive period from 26th June to 17th July 2000. He exercised his right of appeal to an appeal tribunal, but the tribunal confirmed the refusal of his claim for that period.

The law

5. Section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 provides:

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

(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home'.

6. The claimant was liable to make payments in respect of two properties between the start of his housing association tenancy and the date when he moved into the property. How does section 130(1)(a) apply in those circumstances? Housing benefit can only be paid in respect of a dwelling occupied as the claimant's home. That is the effect of section 130(1)(a). So, in order to allow housing benefit to be paid in respect of both dwellings, the claimant must be treated as occupying both. This is governed by regulation 5(5) of the Housing Benefit (General) Regulations 1987. It is exhaustive of the possibilities:

'(5) 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'.

The provision then lists 5 heads in which it applies. The claimant does not fall within any of those heads.

7. The claimant's representative has argued that the claimant is entitled to the benefit of regulation 5(6). This applies if there is a delay in a claimant moving into a dwelling. It provides for entitlement to housing benefit in respect of the period of 4 weeks before the claimant moves in. In other words, it provides for entitlement in respect of a dwelling during a period when the claimant is not actually occupying it. However, it does not provide for entitlement in respect of two dwellings; regulation 5(5) is exhaustive of the circumstances in which that is permitted.
8. The claimant falls within the terms of regulation 5(6) However, he has been paid housing benefit in respect of his council property. He does not fall within the regulation 5(5). So, he is not entitled to housing benefit in respect of his housing association property.
9. As I understand the argument put by the claimant's representative, it is this. The local authority should supersede the award of housing benefit in respect of the council property, treating the resulting overpayment as caused by official error. That would allow it to award housing benefit in respect of the housing association property. The flaw in this argument is that the award of housing benefit in respect of the council property has not been superseded. And, so long as it remains, there is no power for the local authority to award housing benefit in respect of the housing association property for an overlapping period.

Conclusion

10. The appeal tribunal decided that the claimant was not entitled to housing benefit in respect of the housing association property for the overlapping period. Its decision was correct in law.
11. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 18th September 2002