Upper Tribunal (Administrative Appeals Chamber)

London Borough of Hillingdon [2009] UKUT 151 (AAC) (07 July 2009)
Housing and council tax benefits
other

IN THE UPPER TRIBUNAL Appeal No. CH/3079/2007

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE DEPUTY UPPER TRIBUNAL JUDGE

The appellant's appeal against the tribunal's decision of 12^th March 2007 fails. The decision is not erroneous in law.

Background and procedural history

1. This case which concerns housing benefit ('HB') and council tax benefit ('CTB') began as an appeal to the appeal tribunal followed by an appeal to a Social Security Commissioner, both under the Social Security Act 1998. The HB and CTB jurisdiction of the appeal tribunal and the Social Security Commissioners was transferred on 3^rd November 2008 to the First-tier Tribunal and Upper Tribunal respectively. These proceedings were transferred to the Upper Tribunal under the Transfer of Tribunal Functions Order 2008 (SI 2008/2833).
2. This appeal relates in particular, to whether the claimant was a 'person from abroad' for the purposes of regulation 10 Housing Benefit Regulations 2006 (SI 2006/213) ('Regulation 10') and regulation 7 Council Tax Benefit Regulations 2006 (SI 2006/215) ('Regulation 7').
3. The appellant is the local authority ('LBH'). The claimant who is a Somali by birth had been resident in the Netherlands for 14 years before coming to the UK in January 2006. At the time of the claim for HB and CTB, in September 2006, the claimant was receiving income-based jobseekers allowance ('JSA').
4. On 19^th September 2006 LBH contacted the Department for Work and Pension ('DWP') by telephone and was told that a habitual residence test had probably not been done in relation to the claimant before JSA was awarded. The representative of LBH concluded that a habitual residence test was therefore required.

(see bundle of papers before me at page 25)

5. The claimant was interviewed by LBH on 28^th September 2006.
6. On 2^nd October 2006, LBH decided that the claimant was not entitled to either HB or CTB on the basis that she had failed the 'habitual residence test' as she was 'economically inactive' and not 'self sufficient'.
7. On 9^th October 2006 LBH wrote to the claimant's representative explaining the decision notified on 2^nd October 2006.
8. In the letter of 9^th October LBH stated that:

(1) As the claimant was potentially a 'person from abroad' for benefit purposes to be entitled to HB and CTB she had to pass the habitual residence and right to reside tests; and

(2) although the claimant was in receipt of income-related JSA, as the DWP had not applied the 'person from abroad tests' before awarding that benefit the decision awarding income-based JSA 'has no bearing on our decision.'

(see bundle at page 39).

9. By letter dated 25^th October 2006 the claimant appealed on two grounds:

(1) As a work-seeker she had a right to reside in the UK by virtue of article 39 of the EC treaty; and

(2) As she was in receipt of income-based JSA, Regulation 10(3B)(k) and Regulation 7(4A)(k) applied to her so that she was not a person from abroad for HB and CTB purposes.

(see bundle at page 4).

10. On 12^th March 2007 the tribunal upheld the claimant's appeal. The claimant's representative attended the hearing as did a representative of LBH.
11. On 16^th August 2007 LBH appealed to a Commissioner against the decision of 15^th January 2008 with leave of the District Chairman. The ground of appeal is that LBH was entitled, relying on the decision of the Deputy Commissioner in R(H) 9/04, to reach its own considered conclusion on whether the claimant was a person from abroad for HB and CTB purposes, particularly as, in the claimant's case, it had been confirmed to LBH by the DWP that the 'person from abroad' test had not been applied before the award of income-related JSA.
12. On 12^th March 2007 the Secretary of State was joined as a party to the appeal.
13. The Secretary of State does not support the appeal.

The legal framework

14. An appeal to a Judge of the Upper Tribunal will be successful only if the decision of the tribunal below is erroneous in point of law.
15. A claimant who is a 'person from abroad' is treated as not liable to pay rent by reason of Regulation 10(1) and therefore not entitled to HB and is excluded from receiving CTB by section 131(3)(b) Social Security Contributions and Benefits Act 1992.
16. Regulation 10(3B)(k) and Regulation 7(4A)(k) at the relevant time, provided for HB and CTB respectively, that a person who was 'on' income-based JSA was not a person from abroad.

The tribunal's decision

17. The tribunal decided that the claimant was entitled to HB and CTB as she was in receipt of income-based JSA at the date of her claim.
18. Before the tribunal LBH had submitted that, in spite of terms of Regulation 10(3B)(k) and Regulation 7(4A)(k), the decision of the Deputy Commissioner in R(H)9/04 was authority for the relevant local authority conducting its own investigation as to whether a claimant was habitually resident. The tribunal rejected this submission for the following reason:

'I am bound to take the view that, in the absence of any specific qualification or other evidence before me that I should take a different view, that the provision of Regulation 10(3B)(k) is specific. If I took a different view … I would have to find some reason for saying that the regulation is otiose which clearly it is not. The regulation is quite specific and was put there for a reason. I cannot look behind it and despite the very persuasive arguments put forward by [LBH], I have to accept that regulation as final.'

(Statement of Reasons for Decision at page 157 to 158 of the bundle).

19. R(H) 9/04 was a case concerning the question of whether, for HB purposes, a claimant was making payments to his former partner in respect of a dwelling which he and his former partner occupied before they ceased to be partners. The local authority had based its decision to deny HB in part on the fact that the DWP had paid the two individuals income-based JSA as a couple at the relevant time. The claimant had contended that this was wrong and that the local authority should form its own view of the matter. The tribunal allowed the claimant's appeal and the local authority appealed on the grounds that it was bound by the DWP's decision.
20. Deputy Commissioner Paines in R(H) 9/04 dismissed the local authority's appeal on the grounds that as the claimant had contended before the tribunal that the DWP's decision as to his family status was wrong the local authority had to reach its own conclusion on that issue, especially as it was unlikely that the DWP's view was a considered one (paragraph 37). He went on:

'38. There will be other cases where parallel decisions fall to be made by the DWP and local authorities. In that connection my attention is drawn to a passage in the commentary to regulation 7A of the Housing Benefit Regulations on page 293 of CPAG's "Housing Benefit and Council Tax Benefit Legislation 2003/2004". Regulation 7A [the predecessor to Regulation 10] disqualifies "persons from abroad" for housing benefit, and is a counterpart to similar provisions in the income support and JSA Regulations. The commentary says that if a housing benefit claimant is receiving income support or income-based JSA then the local authority "is not entitled to refuse benefit on the grounds that's/he is a person from abroad, just as it may not apply the means tests" and ex parte Menear is cited. In my view ex parte Menear is not authority for the proposition.

39. The DWP's Housing Benefit Guidance Manual (paragraphs C7.500 to C7.505) tells local authorities that "A claimant who is receiving IS or JSA(IB) is not to be treated as a [person from abroad]" and "It should normally be assumed that Jobcentre Plus has applied the appropriate tests". If a local authority has evidence that a claimant may be a person from abroad, the local authority should confirm with Jobcentre Plus that the appropriate test has been applied. The Manual rightly does not say that a Jobcentre Plus decision is binding on a local authority, though the first phrase that I have quoted from it tends to give that impression. In my view, that would be to overstate the duty of the local authority; I do not consider that the local authority is precluded from disagreeing with such a decision. On the other hand, I do not consider that the local authority is obliged to decide the issue from scratch as though the Jobcentre Plus decision did not exist. Where the local authority is satisfied that a considered decision on the issue has been made by Jobcentre Plus, the local authority is entitled, in the absence of anything to compel a contrary conclusion, to regard the existence of that decision as satisfactory evidence that the claimant is not a person from abroad.'

21. I do not think that the decision in R(H) 9/04 allows a local authority to conduct its own test of whether a person claiming HB and/or CTB is a 'person from abroad' where the claimant is in receipt of income-based JSA as the terms of Regulation 10(3B)(k) and Regulation 7(4A)(k) clearly state that in such circumstances the claimant is not a person from abroad. Any other construction would render the provisions of no effect. I am reinforced in this view by the fact that it was the approach taken by Commissioner Howell in CH/2006/06.
22. The Deputy Commissioner's remarks in R(H) 9/04, at paragraphs 38 and 39 (quoted at paragraph 20 above) are obiter and not binding on me. In addition, Deputy Commissioner Paines in a later case, CIS/34/2006, commented on the remarks he made in R(H) 9/04 as follows:

'…I over looked regulation 7A(5)(d). I agree with everything in the commentary on paragraphs 5(d) and (e) of regulation 7A (now regulation 10(3B)(k) of the 2006 Regulations) in the subsequent editions of [CPAG's Housing Benefit and Council Tax Benefit Legislation, including the criticisms of what I said about the position of a person who was in receipt of income support (or, by the same token, income-based JSA). Specifically I agree that, contrary to what I suggested in paragraph 39 of my decision, a local authority cannot hold a person to be a person from abroad if they are 'in receipt of' IS or 'on' income-based JSA.'

(at paragraph 47)

23. As the District Chairman, in giving leave to appeal, asked that an authoritative decision be issued on this matter I make the following points:

(1) Where a local authority and the DWP have to make parallel decisions the remarks of the Deputy Commissioner at paragraphs 38 and 39 of R(H) 9/04 in my view accurately reflect the position.

(2) Where Regulation 10(3B)(k) and Regulation 7(4A)(k) apply a local authority is not allowed or required to make a parallel decision as to whether the claimant is a person from abroad. The terms of those regulations do not permit the local authority to treat the claimant as a person from abroad where the claimant is in receipt of income-based JSA. However where an award of IS or income-based JSA was obtained by fraud the local authority may be able to decide that there was no award from the outset (R v. South Ribble DC HBRB ex parte Hamilton [2000] 33 HLR 1002).

Decision

24. For the reasons set out above the tribunal's decision of 12^th March 2007 is not wrong in law. The appeal fails.

(signed on the original)

A L Humphrey

Deputy Upper Tribunal Judge

6^th July 2009