Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to allow the appeal by the local authority.

The decision of the Exeter First-tier Tribunal dated 12 May 2009 under file reference 200/08/01147 involves an error on a point of law. The First-tier Tribunal’s decision is set aside.

The Upper Tribunal re-makes the decision that the tribunal should have made in the following terms:

The claimant’s appeal against the Respondent’s decision in relation to housing benefit issued on 25 July 2008 is dismissed.

The claimant is not entitled to housing benefit as from 21 July 2008 and for the period of his imprisonment as he does not fall within any of the terms of regulation 7(13) and 7(16) of the Housing Benefit Regulations 2006.

This decision is given under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

The issue in this appeal

1. This appeal concerns the extent to which a convicted prisoner, and in the present case an offender with a serious medical condition, retains any entitlement to housing benefit following a relatively short period of imprisonment which (only just) exceeds 13 weeks.

The essential facts of the case

2. The bare facts of the case are not in dispute and were set out concisely in the careful decision of Tribunal Judge Boyd in his decision of 12 May 2009 following the hearing at Exeter. The claimant was sentenced to a term of 15 months’ imprisonment on 16 July 2008, later reduced to 12 months under the “slip rule”. He was released from prison on licence on 29 October 2008; he was therefore temporarily absent from his home for more than 13 weeks. Throughout this period he suffered from Crohn’s Disease and was on medication.

3. The file also discloses that the claimant’s original sentence of 15 months comprised a 9 month sentence and two consecutive 3 months sentences; it then transpired that the two shorter sentences should have been concurrent rather than consecutive, hence the trial judge’s action to reduce the overall term under the “slip rule”. In addition, the claimant’s actual period of imprisonment following conviction was substantially reduced because of both time spent in custody on remand and a “discount” for prison overcrowding. His actual time in prison following conviction was 15 weeks; moreover it was clear from the date of sentencing that the actual period to be served was likely to be between 14 and 17 weeks.

The decision of the First-tier Tribunal

The argument based on the 13-week temporary absence rule

4. The First-tier Tribunal rejected the claimant’s main argument. The claimant argued that as he was only going to be away from home for just over 13 weeks, the local authority should pay housing benefit for 13 weeks and he would meet the balance from his own funds so as to preserve his tenancy. On the face of it that argument was not unreasonable – in the long-term such a solution might conceivably save public expenditure as well as being better for the claimant.

5. However, Tribunal Judge Boyd dismissed that argument because of the wording of regulation 7(13) of the Housing Benefit Regulations 2006 (SI 2006/213). Regulation 7 is headed “Circumstances in which a person is or is not to be treated as occupying a dwelling as his home”. Regulation 7(13) then provides that:

“(13) Subject to paragraph (17) a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 13 weeks beginning from the first day of that absence from the home only if—

(a) he intends to return to occupy the dwelling as his home; and
(b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and
(c) the period of absence is unlikely to exceed 13 weeks.”

6. Clearly regulation 7(13) enables some people who are temporarily absent from home to retain entitlement to housing benefit for up to 13 weeks. However, that relaxation only applies if all three requirements listed at (a) to (c) are met. The tribunal found that condition (c) was not satisfied in this case and that neither the tribunal nor the local authority had any discretion in the matter if those conditions were not met.

The argument based on the 52-week temporary absence rule

7. However, the First-tier Tribunal found in the claimant’s favour on a different point. The claimant’s doctor had confirmed that the claimant suffered from active Crohn’s Disease and required continuous medication. The doctor pointed out that it would be impossible to manage this condition effectively if the claimant were to be homeless on release. The local authority had therefore considered whether the claimant could take advantage of the more generous 52-week rule under regulation 7(16) and (17).

8. Regulation 7(17) provides that “A person to whom paragraph (16) applies shall be treated as occupying the dwelling he normally occupies at his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence.” Regulation 7(16) then lays down four conditions in sub-paragraphs (a) to (d), each of which must be met to gain the benefit of the 52-week rule. The first two conditions are, broadly speaking, that the claimant intends to return home and that his home has not been let or sub-let (regulation 7(16)(a) and (b)). These provisions mirror regulation 7(13)(a) and (b), subject to one drafting difference to which I shall return later. The fourth and final condition is that “the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period” (regulation 7(13)(d)). There is no dispute in the present case that the claimant met the conditions specified in regulation 7(16)(a), (b) and (d).

9. The third condition, regulation 7(16)(c), lists a number of different specific categories of claimant. Omitting regulation sub-paragraphs (c)(iv) to (x), which are not relevant for present purposes, regulation 7(16)(c) reads as follows:

“(c) he is—

(i) detained in custody on remand pending trial or, as a condition of bail, required to reside—

(aa) in a dwelling, other than the dwelling he occupies as his home; or
(bb) in premises approved under section 9 of the Criminal Justice and Court Services Act 2000,

or, detained pending sentence upon conviction; or

(ii) resident in a hospital or similar institution as a patient; or
(iii) undergoing, or as the case may be, his partner or his dependant child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation;…”

10. The issue for the tribunal was whether the claimant met any of the special categories listed in regulation 7(16)(c)(i)-(iii). He was clearly a convicted prisoner, and not a remand prisoner, and so fell outside regulation 7(16)(c)(i). He was plainly not resident in “a hospital or similar institution as a patient” and so was excluded from regulation 7(16)(c)(ii). Thus the crucial question was whether the claimant satisfied the condition in regulation 7(16)(c)(iii). The First-tier Tribunal concluded that the claimant was temporarily absent from his home, which was not let, and that he was “undergoing… medical treatment… in accommodation other than residential accommodation” within that provision. As that period was unlikely to exceed 52 weeks (within regulation 7(16)(d)), and indeed was unlikely to exceed 17 weeks, the tribunal found that the claimant remained entitled to housing benefit under regulation 7(16) and (17).

11. The local authority has appealed to the Upper Tribunal against the decision of the First-tier Tribunal, arguing that the tribunal misapplied regulation 7(16)(c)(iii). The local authority is supported by the Secretary of State, who has been joined as a party. The claimant understandably resists the appeal, and argues that in any event the local authority and tribunal should have allowed him a slight extension on the 13-week rule.

The reason why the First-tier Tribunal did not err in law on the 13-week point

12. The First-tier Tribunal’s analysis of the 13-week rule was entirely correct. The approach suggested by the claimant – that the local authority meet his rent for the first 13 weeks and that he meet the balance thereafter – might seem superficially attractive. However, social security legislation does not generally permit this type of negotiated compromise. A person is either entitled to benefit or not entitled to benefit.

13. Regulation 7(13) does not give an absolute right to retain housing benefit for the first 13 weeks of a period of temporary absence. Rather, it allows housing benefit to continue in payment for up to 13 weeks if, amongst other things, “the period of absence is unlikely to exceed 13 weeks” (and on the start date for this period, see Commissioner’s unreported decision CSH/499/2006). If that requirement is not made out, then no question of continuing entitlement arises, even for a single week. The tribunal reached the only conclusion it could on this point.

14. The correctness of the tribunal’s approach on this point is further supported by a careful comparison of regulation 7(13)(c) and (16)(d). Regulation 7(13)(c), although it requires some crystal-ball gazing as to the future, sets an absolute upper limit: it is simply that “the period of absence is unlikely to exceed 13 weeks”. In contrast, the more generous 52-week rule is expressed rather differently, with an added degree of flexibility. Regulation 7(16)(d) requires that “the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period” (emphasis added). This means that if the claimant’s absence may exceed 52 weeks, but is unlikely substantially to do so, then payment of housing benefit may continue for the first 52 weeks of the absence but for no longer.

15. This is, of course, precisely the argument that the claimant says should apply to the 13-week rule, in effect as a matter of common sense. However, the difference in drafting of the two paragraphs defeats that argument. Regulation 7(13)(c) would have to say that “the period of his absence is unlikely to exceed 13 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period”. Clearly there may well be policy arguments either way about including such a relaxation in regulation 7(13). But the fact remains that the statutory language at present excludes any discretion to pay for up to 13 weeks where the absence is unlikely to be substantially longer. I refer further below to the history of this regulation, which supports the view expressed here.

16. I note the claimant’s argument that when he was imprisoned he was given a form (presumably by the prison authorities) stating that convicted prisoners could be paid housing benefit for 13 weeks and in exceptional circumstances for an additional further two weeks. That form is (perhaps understandably) not in the evidence before me and so it is difficult to comment on its accuracy. However, the legal position is as set out above. I also interpose here that the critical issue is the period of absence from home and the time served, not the length of the sentence itself; this is important as a person sentenced to six months’ imprisonment would, with remission, typically expect to be released after 13 weeks, and so may well qualify under regulation 7(13).

The reason why the First-tier Tribunal erred in law on the 52-week point

17. The effect of the tribunal’s decision was that the claimant was able to take advantage of the relaxation provided by regulation 7(16) and (17), even though he was a convicted prisoner who was going to be absent from home for rather more than 13 weeks. This was because he was found to be “undergoing… medical treatment… in accommodation other than residential accommodation” within regulation 7(16)(c)(iii).

18. It is true that there is no provision in the Housing Benefit Regulations 2006 which expressly states, at least in so many words, that convicted prisoners who are going to be absent from home for more than 13 weeks lose any right to housing benefit. However, the position for convicted prisoners is generally understood to be so and is set out in this way in textbooks and commentaries. For example, NACRO have published a helpful leaflet entitled “The Sorting yourself out guide to Keeping your home”. This states that “If you are a sentenced prisoner, you can only claim housing benefit to cover rent… if you are likely to serve 13 weeks or less”. For the reasons that follow, I find that that this general understanding is well-founded and that the tribunal’s conclusion to the contrary involves an error of law.

19. The starting point is that any claimant, including a convicted prisoner, whose “period of absence is unlikely to exceed 13 weeks” can take advantage of the 13- week rule in regulation 7(13). This ensures that housing benefit is paid during their short-term temporary absence. However, claimants who fall into one or more particular categories can qualify under the longer 52-week temporary absence rule, but only if they satisfy the requirements of regulation 7(16).

20. The fundamental reason why the tribunal erred in law is that it adopted an unduly literalist interpretation of the narrow terms of regulation 7(16)(c) without having regard to the wider context of the regulation. The local authority and the Secretary of State both seem prepared to concede that the claimant was “undergoing… medical treatment” in the sense that he was on prescribed medication. Being in prison, the claimant was also clearly staying “in accommodation other than residential accommodation”, as that latter term is defined by regulation 7(18).

21. The main reason why the claimant did not fall within regulation 7(16)(c)(iii), despite the fact that he was “undergoing… medical treatment… in accommodation other than residential accommodation”, is that there was no connection at all between the reason for his absence from home and his undergoing medical treatment. He was “temporarily absent from the dwelling he normally occupies as his home” within regulation 7(16) because he had been sentenced to a term of imprisonment. As the Secretary of State’s representative submits, there must be a direct connection between the absence and the circumstances. Were it otherwise, then as the local authority’s representative argues, a claimant (not a prisoner) on long-term medication for high blood pressure could go on holiday for six months and still receive housing benefit for the entire period, even though the reason for his absence from home was to have a holiday and entirely unconnected with any ongoing medication regime. There must, therefore, be some causal link between the reason for the absence from home and being within one of the specified categories of claimant in regulation 7(16)(c).

22. The justification for this is plain from a comparison of regulation 7(13) and (16). All claimants, including as we have seen, convicted prisoners, may continue to have housing benefit paid for a temporary absence of up to 13 weeks. Beyond that, only those particular categories of claimants listed in regulation 7(16)(c) can take advantage of the 52-week temporary absence rule. All these categories are either vulnerable individuals (e.g. hospital in-patients or victims of domestic violence) or those who are forced by circumstances to live away from home (e.g. certain trainees and students).

23. It could be said, of course, that the claimant is both vulnerable and forced by circumstances to live away from home. However, as explained above, there is no connection whatsoever between the claimant’s vulnerability on health grounds and his absence from home. Furthermore, the inter-relationship of regulation 7(16)(b) and (16)(c) as a whole is significant. In particular, regulation 7(16)(b) specifies the requirement that “while the part of the dwelling which is normally occupied by him has not been let…” (emphasis added), whilst regulation 7(16)(c) then goes on to specify that “he is” (i.e. the claimant falls) within one of the prescribed groups. The word “while” does not appear in the parallel provision in regulation 7(13)(b), and indeed its insertion does some damage to the syntax of the paragraph as a whole. In my view, it was added here to demonstrate the need for some causality between the absence and the prescribed status, a requirement which is irrelevant under the blanket 13-week rule, which potentially applies to all housing benefit claimants temporarily away from home for whatever reason.

24. In addition, the fact that the claimant is forced to be away from home is not sufficient of itself. In this context it is relevant to note that remand (as opposed to convicted) prisoners may qualify under the 52-week rule (see regulation 7(16)(c)(i)). The very fact that special provision is made for one class of prisoner is a strong indication that other classes of prisoner are meant to be excluded. The Latin maxim, and principle of statutory interpretation, “expressio unius est exclusio alterius” (to express one thing is to exclude another) is apt here. So the very fact that remand prisoners away from home for more than 13 weeks are included in regulation 7(16) is an indication that convicted prisoners are excluded. It is also relevant to note that special provision is made separately for prisoners on temporary release (see regulation 7(14) and (15)).

The history of the temporary absence rules

25. The history of the temporary absence rules in the housing benefit scheme also supports the arguments advanced by the local authority and the Secretary of State in this case. The predecessor to the present regulation 7 of the 2006 regulations was regulation 5 of the Housing Benefit (General) Regulations 1987 (SI 1987/1971). Until April 1995, regulation 5(8) made provision for the normal maximum period of temporary absence to be 52 weeks, during which housing benefit would be paid. The normal maximum period was reduced to 13 weeks by the Housing Benefit, Council Tax Benefit and Income Support (Amendments) Regulations 1995 (SI 1995/625). The draft regulations were the subject of a detailed report by the Social Security Advisory Committee (SSAC) (see Cm 2783, March 1995).

26. It is well established that the former Social Security Commissioners could look at reports of the SSAC and its predecessor, the National Insurance Advisory Committee, as an aid to the construction of regulations (see e.g. Commissioners’ reported decisions R(G) 3/58 at paragraph 21 and R(M) 1/83, also at paragraph 21). This is because the reports can reveal the mischief that the regulations were intended to cure and therefore throw light on the intention of the legislator. There is no suggestion that the Upper Tribunal should do other than follow the same practice.

27. The primary recommendation of the SSAC report on the 1995 amending regulations was that the proposed changes should not take place. The Government did not accept that recommendation. The SSAC report also made a number of secondary recommendations, in the event that its main proposal failed. The Government accepted six of these further recommendations, but rejected nine others. The first two of the nine rejected recommendations bear directly upon the issues raised in the present appeal.

28. First, SSAC recommended “that as a minimum safeguard [convicted] prisoners with special needs – those with mental or physical disabilities, those with drug or alcohol dependency problems, young people under 21 previously in care and lone parents – should have protection for up to 52 weeks” (paragraph 34 of the report). Such a provision would clearly have assisted the claimant in the present case. However, the Government’s response was that “it would not be appropriate to make an exception for these groups and to treat them better than other prisoners serving comparable sentences who have similarly pressing problems or as favourably as, for example, persons in hospital” (paragraph 9(1) of the Secretary of State’s Statement).

29. Second, SSAC recommended that “the regulations should be amended generally to allow payment of housing costs and Council Tax Benefit for 13 weeks where the absence will not be substantially in excess of that period, in line with the discretion applying to periods in excess of 52 weeks” (paragraph 35 of the report, original emphasis). Again, this is precisely what the claimant has been arguing for in this case. However, the Government again rejected this proposal: the considerations which applied to the 52-week rule (the difficulty of forecasting the exact length of the absence at the outset and the potential waste of public funds involved) were said not to apply to shorter absences of up to 13 weeks (paragraph 9(2) of the Secretary of State’s Statement).

30. The SSAC report and the Secretary of State’s associated Statement therefore reinforce the conclusions set out above that the claimant in the present case can avail himself of neither the 13-week rule under regulation 7(13) nor the 52-week rule under regulation 7(16). I also note that the word “while” (in what is now regulation 7(16)(b)) did not appear in the draft statutory instrument referred to the SSAC in 1995. It must therefore have been added at a later stage, before the regulations were laid before Parliament. This supports the inference that it was inserted to make it clear that there had to be a connection between the reason for the temporary absence and the person’s status within what is now regulation 7(16(c).

Conclusion

31. I understand the arguments being put forward by the claimant. The difficulty is that those arguments (and others) were advanced by the SSAC when the rules on temporary absence were changed in 1995. The then Government rejected those arguments at the time and the current regulations carry that policy intent into effect.

32. The key facts of this case are not in dispute. I adopt the tribunal judge’s careful findings of fact as above. However, the First-tier Tribunal misinterpreted and so misapplied regulation 7(16(c)(iii) and its decision must be set aside. I can make the decision that the tribunal should have made, namely to dismiss the claimant’s appeal. He was not entitled to housing benefit for the actual time that he spent in prison following conviction. My decision is therefore as set out above.

Signed on the original Nicholas Wikeley

on 14 January 2010 Judge of the Upper Tribunal