UK Social Security and Child Support Commissioners' Decisions

[2004] UKSSCSC CH_3110_2003 (06 April 2004)

 


CH/3110/2003

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. I allow the claimant's appeal. I set aside the decision of the Hull appeal tribunal dated 26 March 2003 and I substitute the decision the tribunal should have given: the claimant's payments of "ground rent" are periodical payments in respect of which housing benefit is payable in the form of a rent allowance.

REASONS

2. On 21 January 2002, the Appellant, who was in receipt of income support, claimed housing benefit for the "ground rent" of £308 per quarter in respect of his home, which he described as a "chalet". He said that he had owned his home at some time but that was clearly a reference to the structure, which he had just purchased, rather than the land on which it stood. That land is described as a "camp". The agreement to pay the "ground rent" is not a "long tenancy", as that term is defined in regulation 2(1) of the Housing Benefit (General) Regulations 1987 (i.e., a tenancy granted for a term of years certain exceeding twenty-one years) but is simply an agreement from quarter to quarter.
3. The housing authority disallowed the claim on the ground that a "ground rent" could be met through the housing benefit scheme only if it was paid in respect of a caravan or mobile home and they were of the view that the chalet was neither a caravan nor a mobile home. Their reasoning was based on regulation 10(2)(c) of Housing Benefit (General) Regulations 1987, which precludes the payment of a rent allowance in respect of certain periodical payments including –

"payments by an owner",

and regulation 10(1)(g), which permits a rent allowance to be paid in respect of –

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

The housing authority regarded the claimant's home to be a fixed chalet rather than a mobile home.

4. The claimant appealed on the ground that the chalet was a caravan or mobile home for the purposes of regulation 10(1)(g). His solicitors, Messrs Payne and Payne of Hull, made a written submission referring to the definition of "caravan" in section 29(1) of the Caravan Site and Control of Development Act 1960, which provides –

"'caravan' means any structure designed or adapted for human habitation which is capable of being moved from one place to another (whether by being towed, or by being transported on a motor vehicle or trailer) and any motor vehicle so designed or adapted, but does not include –

(a) any railway rolling stock which is for the time being on rails forming part of a railway system or

(b) any tent."

No specific reference was made to section 13(1) of the Caravan Sites Act 1968, which provides that a structure may be a caravan for the purposes of the 1960 Act notwithstanding that it is composed of two (but not more) sections that must be transported separately but can be assembled on site, or to section 13(2), which provides that a structure exceeding certain dimensions shall not be regarded as caravan for the purposes of the 1960 Act. However, it was pointed out that the claimant's home was a structure mounted on breeze blocks and that a type of mobile home called a "Terrapin" was manufactured and distributed without wheels and fell within the 1960 Act's definition of a caravan. It was also pointed out that another home on the site had undoubtedly started as a caravan and had been regarded for housing benefit purposes as still being one despite the fact that it was now propped up on bricks rather than wheels (although it is not clear whether the wheels had been removed or whether they just no longer touched the ground). The housing authority responded by submitting that the claimant's home could be regarded neither as a permanently parked caravan nor as being mobile. Evidence was submitted as to the nature of "Terrapin" mobile homes, which could be easily relocated unlike, it was said, the claimant's home. Further, it was submitted that the claimant was not an "owner" within the scope of the definition in regulation 2(1) of the Housing Benefit (General) Regulations 1987 because he owned only the structure and was not "entitled to dispose of the fee simple" of the land on which it was situated. At the hearing before the tribunal it was conceded that the implication was that the authority could not rely on regulation 10(2)(c). Neither the claimant nor his solicitors appeared at the hearing.

5. Having heard the housing authority's representative, the tribunal dismissed the appeal on the ground that the claimant's home was not a caravan or mobile home within the scope of regulation 10(1)(g), being "more of a permanent structure as opposed to a mobile one". He observed that it had a brick chimney and said that "[t]he whole appearance of the structure is that is cannot be categorised as a mobile home and certainly cannot be categorised as a caravan". The claimant now appeals with the leave of another tribunal chairman.
6. The claimant's solicitors have submitted further evidence about the home in support of their contention that it is mobile. However, an appeal to a Commissioner lies only on a point of law and a tribunal cannot be criticised for not having regard to evidence that was not before it. On the other hand, the housing authority does not dispute the suggestion that the property "can be dismantled and erected elsewhere", merely submitting that that does not bring the structure within the scope of a mobile home.
7. It would be surprising if the housing authority's submission that the claimant is not entitled to housing benefit were correct. It is clear that the general idea behind the legislation is that basic housing costs that are not excessive and for which a claimant of income support or his or her partner is liable should be met through either the housing benefit scheme or the income support scheme and should not fall through a gap between the two schemes. Thus, for instance, paragraph 17(1) of Schedule 3 to the Income Support (General) Regulations 1987 permits rent or ground rent payable in respect of a long tenancy to be met through the income support scheme and regulation 10(2)(a) of the Housing Benefit (General) Regulations 1987 generally prohibits the meeting of such payments through the housing benefit scheme. In the present case, the claimant did not pay ground rent under a long tenancy and therefore neither of those provisions applied to him. No other provision of paragraph 17(1) applied to his ground rent payments. The Department for Work and Pensions had therefore been right to tell him that they could not be met through income support.
8. I consider that the housing authority were right to concede that regulation 10(2)(c) of the Housing Benefit (General) Regulations 1987 had no application to this case. What seems to have been overlooked by the housing authority and the tribunal is that, if regulation 10(2)(c) did not apply, the authority's submission that no help could be given in respect of ground rent except where the home is a caravan or mobile home had no foundation. The argument was in any event not a very good one because paragraph (1) of regulation 10 is expressed as being subject to paragraph (2), rather than vice versa. Therefore, if ground rent is payable in respect of a long tenancy, regulation 10(2)(a) would preclude those payments being met through housing benefit even if the ground rent was being paid in respect of land upon which a caravan or mobile home stood. As it is, neither regulation 10(2)(a) nor regulation 10(2)(c) applied to the claimant's ground rent and it has not been suggested that any other provision in regulation 10(2) applied either. Accordingly, if the claimant's home was not a caravan or a mobile home, he was entitled by virtue of regulation 10(1)(a) to housing benefit in order to meet the rent he paid in respect of the land on which his home stood, because it was "rent" for which he was "liable to make [periodical payments] in respect of the dwelling which he occupies as his home".
9. The term "ground rent" is generally used only in relation to a modest rent paid under a tenancy granted for a term of years certain where the tenant has purchased the leasehold interest by paying a lump sum rather than paying any substantial periodic rent. The present case is different, but analogous, because the claimant has bought the structure of his home outright but remains liable for a modest rent (by comparison with the rent on a house) in respect of the land upon which it stands. But, however the terms are used, rent and ground rent may be met through the housing benefit scheme to the extent to which they are not excluded by regulation 10(2) or other provisions of the Regulations.
10. The point of regulation 10(1)(g) is merely to make it clear that site charges for a caravan or mobile home are to be treated in the same way as conventional rent. Regulation 10(1)(f) makes similar provision in respect of the mooring charges for a houseboat. By contrast, regulation 10 makes no provision for payments for a tent and the site on which it stands, but paragraph 17(1)(f) of Schedule 3 to the Income Support (General) Regulations 1987 enables such payments to be met through the income support scheme.
11. As the tribunal observed, the 1987 Regulations do not define either "caravan" or "mobile home". In my view, the reason why that is so is that it is not important to distinguish between caravans or mobile homes and other types of homes. In the present case, either the claimant's home was a caravan or mobile home and he was entitled to have the payments in respect of his site met under regulation 10(1)(g) or it was a permanent structure and he was entitled to have his rent met under regulation 10(1)(a).
12. I incline to the view that the tribunal was entitled to conclude, on the evidence before him, that the claimant's home was neither a caravan nor a mobile home. However, he erred in not finding that the claimant was in that event entitled to housing benefit under regulation 10(1)(a). Accordingly, I allow this appeal.

(Signed) MARK ROWLAND

Commissioner

6 April 2004