UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is as follows. It is given under paragraph 8(4) and (5)(a) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.
2. 1. The decision of the Leeds appeal tribunal under reference U/01/013/2001/02017, held on 26^th October 2001, is erroneous in point of law.
3. 2. I set it aside and give the decision that the appeal tribunal should have given without making fresh or further findings of fact.
4. 3. My decision is that the claimant is not to be treated as if he were not liable for the payments in respect of his dwelling under regulation 7(1)(a), (h) or (l) of the Housing Benefit (General) Regulations 1987. The local authority will now decide his claim after making any necessary investigations and inquiries. The decision on that claim will carry a right of appeal to an appeal tribunal.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought with my leave. The appellant is the claimant for housing benefit. The respondent is Bradford Metropolitan District Council. The respondent does not support the appeal.

The legislation

6. The issue in this case is the proper interpretation of regulation 7(1)(h) of the Housing Benefit (General) Regulations 1987:

'(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where-

(h) he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises except where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership'.

The facts

7. The dwelling in respect of which the claim for housing benefit was made was bought by the claimant in 1980. In 1984, as part of an arrangement to help him out of financial difficulties, he transferred the property to a friend, who also took over the mortgage. There were no difficulties with the payments of the mortgage at the time. The difficulties related to the claimant's business and a court case concerning that business. The friend sold the property to the present owner. In 1995, the claimant returned to live in the property as a tenant. The local authority decided that the claimant was not entitled to housing benefit. It relied on regulation 7(1)(a), (h) and (l).

The issue

8. Regulation 7(1)(a) applies if the claimant's tenancy was not on a commercial basis. There is no evidence to suggest that it was not. This is not a bar to entitlement to housing benefit.
9. Regulation 7(1)(l) applies if the claimant's liability for rent was created to take advantage of the housing benefit scheme. There is no evidence to suggest that it was. This is not a bar to entitlement to housing benefit.
10. The issue for me is: is the claimant excluded from entitlement to housing benefit by regulation 7(1)(h)? Does regulation 7(1)(h) apply if there has been no continuity of occupation in the dwelling?
11. It is possible to read the provision in two ways.
12. On the first reading, the provision falls into two parts, each of which is interpreted separately from the other. The first part – 'he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises' - contains a general prohibition. The second part - 'except where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership' – contains an exception. On this reading, the prohibition applies regardless of whether or not there has been continuity of residence. This is how the tribunal interpreted regulation 7(1)(h).
13. On the second reading, the provision falls into the same two parts, but the second is relevant to the interpretation of the former. On this reading, the reference to continuity informs the interpretation of the scope of the general prohibition, limiting it to cases in which the claimant has remained in occupation of the dwelling despite the change of ownership.
14. I prefer the second reading for these reasons. (a) It is more in keeping with principles of interpretation to read a provision as a whole. (b) It produces a more rational result. Why should someone in the claimant's position who has been out of occupation the dwelling for over a decade be deprived of housing benefit? (c) It is consistent with the obvious policy underlying regulation 7(1). It is clearly designed to identify cases in which there is a risk of abuse of the housing benefit scheme. The categories may be drawn in a way that can produces rough justice. No doubt, that was based on a policy decision to err on the side of protection for the scheme rather than fairness in an individual case. However, given that the categories can produce rough justice, it is appropriate to give them the narrowest interpretation that is consistent with the policy of protecting the scheme. (d) It takes account of the other categories of exclusion in regulation 7(1). My preferred reading, if taken in isolation, undoubtedly excludes from its scope cases in which there is an obvious risk of abuse. For example, a claimant may have been out of occupation for only a few days rather than for a few years. However, the other categories will be sufficient to exclude those cases where there is an abuse. In particular, the case is almost certain to fall under regulation 7(1)(l) as an attempt to take advantage of the housing benefit scheme. There may be exceptional circumstances in which a sudden change of circumstances allows the claimant to occupy the dwelling shortly after selling it. If there is a genuine reason that shows that advantage is not being taken of the scheme, there is no need for the claimant to be excluded from entitlement. So, the second reading of regulation 7(1)(h) produces an interpretation that takes account of the operation of the exclusions as a whole.

The amended version of regulation 7(1)(h)

15. This provision has been amended from 21^st May 2001. It now reads:

'he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises and less than 5 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'.

That amendment, or the reason why it was considered appropriate, cannot affect the proper interpretation of the provision as originally enacted.

Conclusion

16. I allow the appeal, because the tribunal misinterpreted regulation 7(1)(h). On my interpretation, the claimant is not excluded from entitlement to housing benefit by this provision. As I have already mentioned, there is no evidence to support an exclusion under regulation 7(1)(a) or (l). So, it is expedient for me to substitute a decision for that given by the tribunal. It is in paragraph 1.3.

Signed on original

Edward Jacobs Commissioner 11th July 2002