Upper Tribunal (Administrative Appeals Chamber)

R(H) 8/09

(Stroud DC v JG [2009] UKUT 67 (AAC))

Judge Williams 17 April 2009

CH/2337/2008

The claimant was the tenant of a three-roomed dwelling and was in receipt of housing benefit and council tax benefit. She notified the local authority that her son had become a full-time student. The authority took the view that she was entitled to benefit only on the basis that she occupied her home on her own and that she was therefore entitled only to accommodation with two rooms. It referred the case to the rent officer, who determined her maximum rent on that basis. The First-tier Tribunal decided on the facts that the son was normally resident with the claimant and was a non-dependant, but that under regulation 74(7) of the Housing Benefit Regulations 2006 no non-dependant deduction was to be made in respect of him, as he was a full-time student. The claimant was therefore entitled to housing benefit based on accommodation containing three rooms. The authority appealed.

Held, allowing the appeal, but substituting a decision to the same effect, that:

1.                the tribunal had erred in failing to consider the effect of regulation 7 of the Housing Benefit Regulations 2006, which was not limited to questions of whether any housing benefit is payable to an applicant or not but was intended to answer the question of which home a person occupies as a dwelling for the purposes of housing benefit (R v Swale Borough Council HBRB [2000] 1 FLR 246 followed) (paragraph 20);

2.                on a correct analysis of regulation 7, a full-time student is to be treated as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks (paragraph 21);

3.                on the facts found by the tribunal the claimant’s son normally occupied as his home the dwelling occupied by the claimant as a non-dependant, in respect of whom, as a full-time student, no non-dependant deduction was applicable, and the reference to the rent officer and resulting decisions were to be set aside (paragraph 29);

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

Mr Shaun Butler, housing officer, appeared for the appellant council.

Ms A Whitworth, solicitor, Gloucester Law Centre, appeared for the claimant and respondent.

Decision: The appeal is allowed. The decision of the tribunal on 1 April 2008 is set aside. I replace it with the decision that the tribunal should have made. This is:

Appeal allowed.

This decision applies to the period from 10 December 2007 to 24 February 2008.

For housing benefit:

In respect of that period, the appellant’s son continued to be an occupier of the dwelling the appellant occupied as her home. Accordingly there was no change of circumstances to be referred to the Rent Service with regard to the number of occupiers of the dwelling during that period as compared with the preceding period. The decision of the council to refer the appellant’s rent to the Rent Service (application received on 27 November 2007) was wrongly made. The decision of the rent officer of 29 November 2007 and all decisions of the council made consequent upon that decision are set aside or disapplied.

The appellant’s son was during that period a non-dependant occupier for whom no deduction should be made by reason of regulation 74(7) of the Housing Benefit Regulations 2006.

The decisions of Stroud DC are to be revised accordingly.

For council tax benefit:

The decisions of Stroud DC with regard to the appellant’s entitlement to council tax benefit are to be revised to the extent necessary in accordance with the above decision.

The parties are at liberty to apply to the Upper Tribunal within one month of the issue by Stroud DC of any new decision or revised decision consequent upon this decision if they are unable to agree the effect of the revisions directed by this decision.

 

REASONS FOR DECISION

Background to the appeal

1.               Mrs G was a tenant of a private landlord in the housing area of Stroud District Council, the appellants. She was a single parent living with her son L, who was born on 22 February 1988. She received income support, and also housing benefit and council tax benefit from Stroud DC.

2.               The decision that gave rise to this appeal was made by a rent officer on 29 November 2007 on a reference by Stroud DC. Stroud DC referred the question of Mrs G’s rent entitlement to the Rent Service on learning that her son L had started a university course. A rent officer reduced her maximum rent to £455 a month from £612 a month. This was because Mrs G’s entitlement was reduced from entitlement to a three-roomed residence to entitlement to a two-roomed residence. This was because L was regarded by Stroud DC as no longer occupying his mother’s home once he had become a student.

3.               Stroud DC notified Mrs G on 4 December 2007 of reductions to both her housing benefit entitlement and her council tax benefit entitlement. The notifications were reissued on 6 December 2007 because Stroud DC started the decisions on the wrong date. The effective date for the start of the periods covered by the decisions reducing entitlement was 15 October 2007.

4.               Mrs G’s appeal against these decisions led to considerable correspondence involving a local councillor, the local Member of Parliament, a minister at the Department for Work and Pensions, and Mrs G’s landlord. There were several later developments, including an award of discretionary housing benefit and Mrs G’s acceptance of notice to quit her home. It is common ground that the combined effect of these developments on the decisions issued by Stroud DC on 6 December 2007 is that Mrs G’s entitlement to benefit is now in dispute for a short period only. That period is 10 December 2007 to 24 February 2008.

5.               The parties failed to agree the basis of Mrs G’s entitlement to benefit during that period. Mrs G considered that she occupied her home with her son L. Stroud DC took the view that she was entitled to benefit only on the basis that she occupied her home on her own. The difference was important because she considered that she was entitled to accommodation including three rooms (in addition to a kitchen and bathroom) while Stroud DC took the view that she was entitled to accommodation with two rooms.

6.               The tribunal decided that L was living with his mother during the period in dispute. It decided that the decision of Stroud DC was wrong, and that Mrs G was entitled to housing benefit based on accommodation containing three rooms. Stroud DC appealed.

The disputed decision

7.               It was common ground before me that the decision that gave rise to this dispute was the decision of Stroud DC to refer Mrs G’s rent to the Rent Service when it took the view that L was no longer resident with her. It was not the decision of the rent officer on that reference. I emphasise this because the papers refer on several occasions to an appeal against the rent officer’s decision. It is not clear when Stroud DC made the decision to refer, but the reference incorporating it was received by the Rent Service on 28 November 2007.

8.               If there were any doubt about this, then it is removed by the decision of Kay J in R (Marchant) v Swale Borough Council HBRB [2000] 1 FLR 246 at paragraph 24. Further, this was confirmed by the Court of Appeal on appeal from that decision. (The Court of Appeal judgment, issued on 9 November 1999, was not given a neutral citation number or published in the usual way, but was reported at [2000] 1 FLR 246 and a copy of the transcript is on the Rightsnet website.) Giving the leading judgment, Potter LJ concluded that:

“… in making his determination the rent officer does not decide, or indeed concern himself with deciding, who is or is not to be treated as an occupier for the purposes of applying the size criteria; his is an administrative exercise consequent on an earlier decision by the local authority as to whether or not there are persons properly to be regarded as occupiers of the premises in addition to the claimant occupier himself.”

9.               The reference to the Rent Service was made under regulation 14 of the Housing Benefit Regulations 2006 (SI 2006/213) (the main Regulations). This requires a local authority to refer a rent payable by a tenant of a private landlord to a rent officer in certain circumstances. It is not in dispute that one of those circumstances is a reduction in the number of occupiers of a household.

10.            While the requirement to refer the matter to the Rent Service is laid down in the main Regulations, the legislation governing the reference and the determination by a rent officer is in the Rent Officers (Housing Benefit Functions) Order 1997 (SI 1997/1984). These regulations require a rent officer to have regard to the number of occupiers relevant to an application when deciding it. As the Court of Appeal confirmed, the rent officer has no role in deciding who the occupiers are, or the number of rooms those occupiers should have. This is clear from the definition of “occupier” in regulation 2 of these regulations:

“‘occupier’ means a person (whether or not identified by name) who is stated, in the application for the determination, to occupy the dwelling as his home.”

11.            Stroud DC took the view that it was under a duty to refer Mrs G’s rent because there had been “a notification of a change relating to a rent allowance” (regulation 14(1)(c) of the main Regulations). A “change relating to a rent allowance” is defined by regulation 14(10) as meaning:

“a change or increase to which paragraph 2(3)(a), (b), (c) or (d) of Schedule 2 applies”.

Schedule 2, paragraph 2(3)(a) is:

“(a) the number of the occupiers of the dwelling has changed and that dwelling is not in a hostel”.

As the Court of Appeal observed in Swale of the previous regulations, unfortunately there is no definition of “occupier” simpliciter in the main Regulations. But if Stroud DC was right that L had stopped occupying his mother’s home, then it was right that there was a change requiring reference.

The underlying entitlements

12.            L was a student during the relevant period for both housing benefit and council tax purposes. That is common ground, as is the consequence that he cannot himself claim housing benefit from Stroud DC: regulation 56 of the main Regulations. His status has the more general consequence that he was “invisible”, as Miss Whitworth put it in argument, for council tax purposes. Students are not liable to council tax. Again, that is not disputed.

13.            A claim for housing benefit for accommodation for L if he continued to live with his mother could therefore be made only by Mrs G. She had been receiving housing benefit for accommodation for both herself and L while he was a child and then young person. He was now over 19 and a student. Could she continue to claim for him?

14.            Whatever the individual personal relationships within a family in the ordinary sense of the word, “family” has a formal definition for housing benefit and related purposes. It is in section 137(1) of the Social Security Contributions and Benefits Act 1992. Regardless of the personal views of Mrs G or L, L stopped being a member of her “family” for housing benefit purposes by the start of the period covered by this appeal. He was over 19 and she was no longer “responsible” for him, whether or not he was still living in the same household: regulation 19 of the main Regulations read with section 142 of the 1992 Act. Mrs G agreed that she was no longer entitled to child benefit or child tax credit for L for that reason. So she could not claim for L on that basis. But that did not mean that he was no longer occupying her home as his or that he was “invisible” for the purposes of her housing benefit claim.

15.            The central requirement of residence for housing benefit purposes is that the claimant is liable to make payments for a dwelling “which he occupies as his home”: SSCBA 1992 section 130(1)(a). That term is defined by regulation 7 of the main Regulations. Entitlement to claim for accommodation for those occupying the home with the claimant arises under the main Regulations.

16.            Neither the Act nor the main Regulations deal expressly with the position that arises here. Nor do the decisions in Swale help in this aspect of the case. That was a case about children who were living for part of the time with one parent and for part of the time with the other. In that case both Kay J and the Court of Appeal found that the answer lay in parts of the Housing Benefit Regulations not relevant to Mrs G and L.

17.            Mrs G contended, and the tribunal found on the facts, that L continued to treat Mrs G’s home as his own home. He did so with her full agreement. But he did not occupy their home, in the legal sense, as a member of her family. He was therefore occupying as a non-dependant.

18.            The situation is dealt with indirectly by limiting Mrs G’s claim for housing benefit to the amount of her “eligible rent”: regulation 11 of the main Regulations. That is itself determined by the amount of her “maximum rent”: regulation 13 of the main Regulations. The “maximum rent” is the rent determined by a rent officer. So we get back to the position that the rent is determined by reference to the number of occupiers put in the reference form by the local authority. The circular nature of the operation of these provisions means that there is no definition of “occupier”, other than by reference to the decision-maker filling in the reference form for the Rent Service, in any of the relevant legislation.

Arguments of the parties

19.            Miss Whitworth submitted that help could be found in regulation 7 of the main Regulations. The tribunal made no comment about this argument beyond finding it to be irrelevant. Stroud DC submitted that the tribunal took the correct position on that point.

20.            Miss Whitworth submitted that the tribunal had taken the wrong approach. Kay J in Swale BC at paragraph 37 considered that he could:

“find no justification for limiting the application of regulation 5(1) [the predecessor to regulation 7 in the Housing Benefit (General) Regulations 1987] simply to questions of whether any housing benefit is payable to an applicant or not … The immediate heading to regulation 5 reads ‘circumstances in which a person is or is not treated as occupying a dwelling as his home’. It seems clear to me that this provision was intended to answer the question of which home a person occupies as a dwelling for the purposes of housing benefit.”

On appeal, the Court of Appeal considered that Kay J was correct in his approach. The heading to regulation 7 of the main Regulations is identical to that cited by Kay J, and the context of the regulation is effectively the same as in the legislation before him in that appeal. The approach of the courts in Swale clearly applies also to the current Regulations.

21.            Miss Whitworth took me through the somewhat tortuous provisions of regulation 7 and the other regulations that deal with L’s position. Regulation 7(17) treats someone to whom regulation 7(16) applies as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks. Regulation 7(16)(c)(viii) applies to a student to whom regulation 7(3) and (6)(b) does not apply. Regulation 7(3) applies to students to whom regulation 56(1) does not apply. Regulation 7(6)(b) is not relevant on the facts. Regulation 56(1) applies to full-time students. These are defined by regulation 53. It is common ground that L is a student within the regulation 53 definition. Therefore, she submitted, he is within the scope of regulation 7(17). That brings him also within the scope of regulation 7(1). That leaves the question to be decided as that in regulation 7(1). Is Mrs G’s home “the dwelling normally occupied as his home”?

22.            I accept that analysis and agree with Miss Whitworth that the tribunal was wrong in ignoring regulation 7.

23.            By contrast, the starting point for Stroud DC was section 2(5) of the Local Government Finance Act 1988, to the effect that a student is treated as having his sole or main residence where he is resident for the purposes of the course. I am frankly surprised to see that argument. The provision was a deeming provision for the purposes of the community charge, or poll tax. It was repealed by the Local Government Finance Act 1992, Schedule 14 and ceased to have any effect over 15 years ago. It has no relevance to this appeal.

24.            Miss Whitworth buttressed her argument by reference to policy issues. She also drew attention to the guidance issued to local authorities by the Department for Work and Pensions in its Housing Benefit Guidance Manual. I should mention that the Secretary of State for Work and Pensions was invited to be a party to the appeal but did not accept the invitation. I do not consider that I need to explore these issues further here. It may be that, as discussed at the hearing, there is a mismatch between the approaches taken to full-time students for council tax purposes as compared with housing benefit. But that does not of itself cast doubt on the terms of the housing benefit scheme.

The tribunal’s decision

25.            The tribunal’s reasons for its decision are:

“[22]   In deciding the question whether L is normally resident with the Appellant, and therefore a non-dependant, the tribunal has to take account of all the material circumstances. It is a matter of fact and degree. It is not merely a mathematical exercise as to where he spends most time. The tribunal takes account of the circumstances referred to above … .

[24]     Having considered all the circumstances of this case, the tribunal finds on the facts that L normally resides with the Appellant at [her home] and is therefore a non-dependant within the meaning of regulation 3 of [the main Regulations].

[25]     Regulation 74(7) [of the main Regulations] provides that no non-dependant deduction shall be made in respect of a non-dependant if he is a full-time student during a period of study within the meaning of Part 7 [of those Regulations] … .”

26.            Miss Whitworth supported the tribunal’s view on regulation 74(7). That was not contested by Stroud DC. I agree with that aspect of the tribunal’s decision. On the more general question, I agree with Miss Whitworth that the tribunal should have had regulation 7 in mind in reaching its decision, and should not have dealt with the matter purely on the facts. It therefore erred in law, but not in the way that Stroud DC contended.

 

The position with regard to council tax benefit

27.            The official correspondence in the file, and the appeal by Mrs G, also cover related decisions about council tax benefit. The tribunal made no mention of these in its decision or reasons. It appears to have left that aspect of the appeal unresolved. It is clear that Stroud DC applied the effects of its reference to, and the decision by, the rent officer to Mrs G’s entitlement to council tax benefit as well as to her housing benefit. For example, there is reference to a non-dependant deduction for L in connection with council tax benefit. There is a direct equivalent to regulation 74(7)(c) of the main Regulations in regulation 58(7)(c) of the Council Tax Regulations 2006 (SI 2006/215). That must apply to L in the same way as regulation 74(7). The decision on the appeal by Mrs G must be applied equally to her council tax benefit appeal on that basis.

My decision

28.            I indicated at the hearing that given the clear findings of fact by the tribunal, it seemed appropriate that I should take a final decision in this appeal, rather than refer it to another tribunal for a further hearing. Mrs G, who was present, also answered a few short questions I asked on issues of fact that were not clear from the papers. Both parties agreed with this approach, and I therefore take the decision that the tribunal should have taken.

29.            I adopt the findings of fact of the tribunal as noted above. I apply those findings to regulation 7. I find that at all times relevant to this appeal L normally occupied as his home the dwelling occupied by his mother and the subject of her claim for housing benefit or was to be treated as so occupying her home. He was during that period occupying as a non-dependant within the scope of regulation 74(7) of the Housing Benefit Regulations 2006. The decision of Stroud DC to refer her rent to the Rent Service on or about 27 November 2007 because there was only one occupier of her dwelling was wrong. The reference, and therefore the decision of the rent officer on the reference, should be set aside. So should all decisions taken by the council because of that reference and decision, and with regard to any deduction for L’s presence at the dwelling as a non-dependant. Mrs G’s entitlement remains as it was before that reference.

30.            I must also apply that to her council tax benefit appeal.