UK Social Security and Child Support Commissioners' Decisions

 


File number: CH 844 2002

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I dismiss the appeal. For the reasons below, the decision of the tribunal is not erroneous in law.
2. The appellant, Bromsgrove District Council, is appealing with permission of a district chairman against the decision of the Birmingham appeal tribunal on 8 October 2001 under reference U 045 024 2001 06045.
3. The appeal concerns an application by a claimant for housing benefit in respect of an annual British Waterways Board Boat Licence fee to keep and use a named boat on the waterways controlled by British Waterways and also in respect of the Mooring Permit for the boat. The boat is a narrow boat on which the claimant lived at the relevant time. It had a permanent mooring site in the area of the Council and the address given was that of the mooring site. The site and the amounts were confirmed independently. After lengthy correspondence between the parties and others, the Council paid housing benefit for the Mooring Permit but not the Boat Licence. The correspondence includes examples of several other authorities awarding housing benefit in what appear to be similar circumstances to the circumstances in which the Council refused them as well as information about councils awarding the claimant housing benefit on a similar claim in other areas.
4. The claimant appealed. The tribunal held an oral hearing at which both the claimant and the Council were represented. The tribunal allowed the appeal and awarded housing benefit to the claimant for the Boat Licence.

Grounds of appeal

5. The Council asked for permission to appeal on three grounds. The grounds of appeal are:

(1) the Boat Licence fee payable to British Waterways was not within regulation 10(1)(d) of the Housing Benefit (General) Regulations 1987;

(2) the tribunal erred in finding that the waterways licence fee was part of the mooring charges of the boat;

(3) the tribunal was wrong to accept the concession that the claimant's boat was a houseboat.

6. For the claimant, a robust submission was made that the tribunal had not erred in law if judged by R(A) 1/72. The tribunal had not rested its decision on regulation 10(1)(d). It was correct to view the waterways licence as part of the mooring fees in the particular circumstances of the case. The tribunal did not err in treating the claimant's boat as a houseboat. The Council was invited to respond to the views of the claimant's representative but did not do so.

The concession

7. I deal with the last of those issues first. The tribunal made it clear in its reasons that it started from the point that the Council accepted that the mooring charges for the boat were properly payable. The tribunal therefore did not consider the question whether the boat was a houseboat. I see nothing wrong in law or in procedure in that view. The question about the identity of the boat is not obviously wrong as a matter of law. "Houseboat" is not defined for these purposes. The only relevant definition is in regulation 2(4)(c), including the land where a boat is moored as part of the dwelling.
8. The Council is a responsible public body and was represented at the oral hearing. The issue was discussed at the hearing. In those circumstances the tribunal was fully entitled to rely on that concession, and start where it did. I need not therefore decide whether a definition should be given to the term "houseboat" or whether it should in the absence of a definition be regarded – as I tend to think - as an ordinary English word. Nor do I see as a matter of law any reason why the term "houseboat" should be restricted to a boat without an engine. The definition of "houseboat" used in the British Waterways Boat Licence and Permit Conditions (see below) is "boats not normally used for cruising which are moored at sites with planning permission for residential use" (paragraph 35). That might be a useful starting point, as may the kind of Boat Licence held by a claimant from British Waterways. On that basis, the Council may not have been conceding anything. But it is sufficient that I find that the tribunal was fully entitled to act on the concession made.

The Boat Licence

9. I can consider the other grounds of appeal together. The decision of the Council was based on advice of the Department of Social Security that "the licence fee is to allow you to use the waterways, it is a charge for putting the boat on the water, not a charge to allow you to live in it (sic)". That advice does not refer to any statutory provision. The Council interpreted the advice as applying regulation 10(1)(b) of the Housing Benefit (General) Regulations 1987, and relied on this at the tribunal hearing. In reply, the claimant's representative relied on regulation 10(1)(d) and (e). The tribunal dismissed regulation 10(1)(e) as not relevant, but rested its decision alternatively on regulation 10(1)(d) and regulation 10(1)(f). It also looked at regulation 10(1) more broadly in setting the context to its interpretation.
10. The relevant terms of regulation 10(1) are:

(1) … the payments in respect of which housing benefit is payable in the form of a rent rebate or allowance are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home –

(a) payments of, or by way of, rent;

(b) payments in respect of a licence or permission to occupy the dwelling;

[c refers only to Scotland]

(d) payments in respect of, or in consequence of, use or occupation of the dwelling;

(e) payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends;

(f) mooring charges payable for a houseboat;

(g) where the home is a caravan or a mobile home, payments in respect of the site on which it stands...

11. The tribunal had before it the full terms of the British Waterways Boat Licence and Permit Conditions. The following two paragraphs in Section 1 set out the scope of a Boat Licence:

7 The licence allows you to keep and use the Boat on the waterways described in section 5a of this booklet as available for your type of licence. [The booklet sets out the various types of licence, including a houseboat certificate].

8 The licence does not allow you to moor your boat in any waterway except for short periods ancillary to cruising. If you wish to moor to, on or over British Waterways' land or water, you will need a Mooring Permit. The licence does not give a right to moor that is enough to comply with the requirement of the British Waterways Act 1995 for a boat to have a mooring.

Section 2 sets out the Mooring Permit Conditions. Paragraph 2 of those conditions is that

You must comply with the licence conditions in Section 1 relevant to the boat at all times.

12. Those conditions confirm the view taken by the tribunal after hearing from the claimant and a witness. You cannot have a Mooring Permit unless you have a Boat Licence. And you cannot moor your boat legally on British Waterways property unless you have a Mooring Permit "except for short periods ancillary to cruising".

On the basis of those terms, my starting point is to agree with the tribunal in its view of the Boat Licence:

"Starting with a concession that mooring charges are payable however, it would make a nonsense if any payment which had to be made as a pre-condition of being granted a mooring licence was excluded".

13. Do the terms of regulation 10 exclude that view? I think not. I agree that neither regulation 10(1)(b) nor (e) help the claimant. The payment is not a payment to occupy the boat. That would cover a rental payment to an owner of the boat. Nor is it a service charge (though it is analogous to one). Regulation 10(1) (f) refers to "mooring charges" rather than to anything more specific. In my view that is wide enough to cover a Houseboat Certificate as well as a Mooring Permit, as defined in the Boat Licence and Permit Conditions. Such a view might be justified as the equivalent of regulation 10(1)(g) for caravans. An alternative and better view is to accept the Boat Licence fee as a "payment in respect of, or in consequence of, use and occupation of the" boat (regulation 10(1)(d)). I reject the argument of the Department of Social Security noted above, and of the Council, on this point. The Boat Licence for a houseboat is a licence both to put the boat on the water and to live in the boat once it is on the water. The Boat Licence and Permit Conditions make it clear that it would be a breach of law for someone to live in a boat on British Waterways property without the appropriate boat licence. The analogy with vehicle licences is not a good analogy. A vehicle licence does not entitle the holder to sleep in the car or truck on the public highway as if it were a dwelling, nor does it allow the holder to obtain a permit to do so.

David Williams

Commissioner

15 August 2002

[Signed on the original on the date shown]