UK Social Security and Child Support Commissioners' Decisions

 
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is that the decision of the York appeal tribunal, held on 19 March 2003 under reference U/01/010/2002/00710, is not erroneous in point of law.

The appeal to the Commissioner

2. This case comes before me as an appeal to a Commissioner against the decision of the appeal tribunal brought with the leave of Miss Commissioner Fellner. Miss Fellner is now on sick leave and has transferred the case to me for decision.
3. The appellant is the claimant for housing benefit and the respondent is the local authority from whom she made the claim for benefit.

The claim for housing benefit

4. The claimant's claim was refused on the ground that the arrangement under which she occupied her dwelling was not on a commercial basis: regulation 7(1)(a) of the Housing Benefit (General) Regulations 1987. The tribunal confirmed the decision on that ground.
5. The background is that the claimant had moved, from a home that she owned and was buying with the aid of a mortgage, into accommodation that was part of a property bought by her daughter and for which the claimant had paid to be adapted to her disabilities.
6. The issue for me is this: did the tribunal go wrong in law in coming to its decision? The answer is: no, it did not.
7. Whether or not an arrangement is on a commercial basis is a question of fact. It is one that involves other constituent facts. Those other facts have to be considered as a whole. The significance of each has to be considered in the context of all the others. Their overall and combined significance is a matter of judgment. As the claimant did not attend the hearing, the relevant facts were those that appeared from the papers. The key facts on which the tribunal relied are not disputable. The claimant has made allegations about the local authority fabricating matters. They are vague and unsubstantiated. No significance can be attached to them. I can find no way in which the tribunal went wrong in law in making its finding of fact. I have dealt with this point briefly, because there is another ground on which the claimant's claim was bound to fail.
8. Even if the tribunal was wrong on the 'commercial basis' issue, the claimant was still not entitled to housing benefit. There was another ground that barred her entitlement to housing benefit. The terms of the claimant's tenancy with her daughter is at pages 72 and 73. The tenancy was for life. A tenancy for life takes effect as a tenancy for 90 years under section 149(6) of the Law of Property Act 1925. And a tenancy for 90 years, being longer than a tenancy for 21 years, is a long tenancy for the purposes of the housing benefit scheme. See the definition in regulation 2(1) of the Housing Benefit (General) Regulations 1987. And payments under long tenancies are not eligible for housing benefit by virtue of regulation 10(2)(a). So, the claimant's claim was bound to fail on that ground alone.
9. I am aware that the claimant has not had notice of this point. But it is fatal to her case. And there can be no dispute about the terms of the law or of the relevant fact, which is the duration of the tenancy that bears the witnessed signatures of her and her daughter. In those circumstances, there would be no point in allowing her the chance to comment on it.

The procedural point

10. The claimant has also complained about procedural matters. In view of the point I have just made, these procedural factors cannot have affected the ultimate outcome, which can only be that the claimant is not entitled to housing benefit on her claim. Nor, for the same reason, could they justify a rehearing. I deal with them only out of courtesy to the claimant.
11. The claimant's representative pulled out after the case had been listed. He has explained that the claimant lived outside his catchment area. He applied for a postponement. That would have been to the claimant's potential advantage in that she would have had a chance to look for another representative. But she disavowed any wish to have a postponement. She also opposed a proposal for a domiciliary hearing. She insisted that the hearing proceed.
12. In those circumstances, there was no breach of natural justice or of the claimant's Convention right to a fair hearing under the Human Rights Act 1998. Her absence from the hearing was her own responsibility. She blocked all sensible attempts at helping her by both her former representative and the tribunal staff. She was her own worst enemy. The tribunal was not at fault.

Conclusion

13. The tribunal's decision on 'commercial basis' issue was sound. The claimant was also bound to fail anyway in view of the 'long tenancy' issue. There is no merit in her procedural complaints.
14. I dismiss the appeal.

Signed on original

Edward Jacobs Commissioner 18 November 2003