DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

The DECISION of the Upper Tribunal is to allow the appeal.

The decision of the Chesterfield First-tier Tribunal dated 4 November 2009 under file reference 160/09/01932 involves an error on a point of law.  The First-tier Tribunal's decision dated 4 November 2009 is set aside.  The Upper Tribunal re-makes that decision in the following terms:

 

The claimant’s appeal against the local authority’s decision dated 26 May 2009 is allowed.  The local authority was wrong to base the claimant’s housing benefit entitlement on the Local Housing Allowance (LHA) one- bedroom shared accommodation rate under regulation 13D(2)(a)(ii) of the Housing Benefit Regulations 2006.  His entitlement should have been based on the two-bedroom category of LHA by virtue of regulation 13D(2)(c) and (3)(b).  This is because the claimant’s father is an occupier within regulation 13D(12), as he is a joint tenant who is a member of his household.  The local authority should re-calculate the claimant’s housing benefit accordingly.

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

REASONS FOR DECISION

 

Introduction

1. In legal terms this appeal concerns the interpretation of regulation 13D(2) of the Housing Benefit Regulations 2006 (SI 2006/213; “the 2006 Regulations”), which sets out the categories of dwelling for the purpose of determining a claimant’s maximum rent under the local housing allowance (LHA) rules.  As Mr Commissioner Williams (as he then was) observed in Social Security Commissioner’s decision CH/2986/2005, LHA “is not a new benefit or allowance. It is a modification of housing benefit applying in some areas” (at paragraph 8). Or, as one might say now, following the bringing into force of the Housing Benefit (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 (SI 2007/2868; “the 2007 amending regulations”), LHA is a modification of housing benefit applying in most areas.

 

2. In practical terms this appeal concerns the level of housing benefit to which the claimant is entitled.  The claimant (Mr A) is a 34 year old man who lives with, and cares for, his father (Mr A senior).

 

The factual background to this appeal

 

3. The facts of this case are not in dispute.  I can summarise the background from the very clear findings of fact made by District Tribunal Judge (DTJ) Howard in the First-tier Tribunal. The claimant and his father are joint tenants of what was originally a 3-bedroom council house.  Mr A senior bought the property from the council and built a downstairs extension for his then wife, who was disabled.  His wife died and Mr A senior, who is himself disabled, now occupies the downstairs extension, comprising an extra bedroom and bathroom.  He goes upstairs from time to time but not regularly because of his disability.

4. Mr A senior arranged a loft conversion for his son so that he could have his own living room.  The loft conversion was more costly than anticipated and it proved impossible to get building regulations approval.  Mr A senior, in the face of financial problems, sold the property to a specialist company which cleared the debts and found a new owner who was prepared to let the property to father and son.  They now occupy the property as joint tenants, paying rent to the new owners.

 

5. In practice Mr A has sole use both of his bedroom and of the attic room, which is accessed by stairs from that bedroom.  He also has access to the whole house, not least as he is his father’s carer.  As indicated above, Mr A senior goes upstairs to the first floor occasionally but because of his disability is unable to use the attic room.

 

The local authority’s decision

 

6. A claimant’s maximum rent (LHA) is determined according to regulation 13D(1) of the Housing Benefit Regulations 2006, as inserted by regulation 7 of the Housing Benefit (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 (SI 2007/2868). This provides as follows:

 

“13D.—(1) Subject to paragraph (3) to (11), the maximum rent (LHA) shall be the local housing allowance determined by the rent officer by virtue of article 4B(2A) or (4) of the Rent Officers Order which is applicable to—

(a) the broad rental market area in which the dwelling to which the claim or award of housing benefit relates is situated at the relevant date; and

(b) the category of dwelling which applies at the relevant date in accordance with paragraph (2).”

 

7. The reference to the Rent Officers Order means (in England and Wales) the Rent Officers (Housing Benefit Functions) Order 1997 (SI 1997/1984), as amended – see regulation 2(1) of the 2006 Regulations.  In particular, article 4B of, and Schedule 3B to, those Regulations provides further details in relation to broad rental market area determinations and LHA determinations.

 

8. Thus in calculating a claimant’s entitlement to benefit it is necessary, according to regulation 13D(1)(b), to identify “the category of dwelling which applies at the relevant date in accordance with paragraph (2)”. The local authority awarded Mr A housing benefit on the basis of the local housing allowance (LHA) one-bedroom shared accommodation rate. This was on the assumption that his position was covered by regulation 13D(2)(a):

 

“(a) the category specified in paragraph 1(1)(a) of Schedule 3B to the Rent Officers Order (one bedroom shared accommodation) where—

(i)               the claimant is a young individual who has no non-dependant residing with him and to whom paragraph 14 of Schedule 3 (severe disability premium) does not apply; or

(ii)              paragraph (b) does not apply because neither sub-paragraph (b)(i) nor (ii) are satisfied in the claimant’s case and neither the claimant nor his partner (where he has one) is a person to whom paragraph 14 of Schedule 3 (severe disability premium) applies, or to whom the circumstances in any of paragraphs (b) to (f) of the definition of young individual applies (certain care leavers);”.

 

9. Mr A, supported by his local law centre representative Ms Phillips, argued that this approach was wrong.  They argued that he had exclusive use of two rooms (his own bedroom and the attic room) and so his LHA should be assessed using the (higher) one-bedroom self-contained rate, applying instead regulation 13D(2)(b) (as amended):

 

“(b) except where paragraph (a)(i) applies, the category specified in paragraph 1(1)(b) of Schedule 3B to the Rent Officers Order (one bedroom self-contained accommodation) where that applies in the claimant’s case at the relevant date in accordance with the size criteria as set out in paragraph (3) and—

(i)               the claimant (together with his partner where he has one) has the exclusive use of two or more rooms; or

(ii)              the claimant (together with his partner where he has one) has the exclusive use of one room, a bathroom and toilet and a kitchen or facilities for cooking,

and in this sub-paragraph ‘room’ means a bedroom or room suitable for living in except for a room which the claimant shares with any person other than a member of his household, a non-dependant of his, or a person who pays rent to him or his partner;”.

 

10. At its simplest, the claimant’s argument was that he had “exclusive use of two or more rooms” and so necessarily fell for consideration under regulation 13D(2)(b)(ii).

 

11. The local authority’s officer reconsidered but did not change the decision. She explained the council’s reasoning thus:

 

“My reasons are that the rent agreement which has been supplied does not specify which rooms either [Mr A] or his father have exclusive use of, and therefore gives equal rights to both parties to occupy the whole of the property.  It is of course assumed that each have their own bedroom.  It seems to be purely a matter of choice how [Mr A] and his father have divided the living quarters and is not a condition of the tenancy that either of them are prevented from accessing the rest of the house.”

 

The appeal to the First-tier Tribunal

 

12. The respective cases as presented to the First-tier Tribunal were clear.  Ms Phillips argued, on behalf of Mr A, that regulation 13D(2)(b) applied.  It was conceded that father and son were joint tenants and that the agreement did not specify that Mr A had sole use of any specific rooms; equally it was pointed out that the tenancy agreement did not say the accommodation was shared, but was silent on the matter.  As a matter of fact, Mr A had exclusive use of two rooms; moreover, regulation 13D(2)(b) did not require the tenancy agreement to stipulate that he had exclusive use of two rooms.

 

13. The local authority, on the other hand, relied on the argument summarised at paragraph 11 above.

 

14. The First-tier Tribunal dismissed the appellant’s appeal, confirming the local authority’s revised decision. DTJ Howard, in a clear and comprehensive decision notice, made detailed findings of fact as summarised at paragraphs 3-5 above and identified the legal question he had to answer as being whether Mr A had “excusive use” of his bedroom and the loft.  He expressly found that in practice, and as a matter of fact, Mr A had sole use of those two rooms.

 

15. However, his central reasoning was as follows:

 

“15. The tenancy agreement as between the new landlords and [Mr A] and his father clearly shows that they occupy the property as joint tenants.  It is not one of these situations where separate tenancies have been created within a house.  I interpret ‘exclusive’ as meaning that a tenant is legally entitled to the exclusive use of rooms.  It cannot be interpreted so as to provide for an increase in Housing Benefit because of any internal arrangements joint tenants may make as to how they have arranged the use of the house.  Under the terms of the tenancy [Mr A] is entitled to use his father’s bedroom and bathroom and all the other rooms and equally his father is entitled to use his son’s room and the loft. The fact that the father does not use the son’s bedroom and for reasons of his disability cannot use the loft does not mean that [Mr A] has the exclusive use of those rooms.

 

16. I find that there is a distinction between someone having exclusive use of part of a property as against, in practice, joint tenants choosing to have sole use of particular parts of a house.”

 

The appeal to the Upper Tribunal

 

16. Ms Phillips from the law centre drafted detailed grounds of appeal on behalf of Mr A.  DTJ Howard refused permission to appeal, although commending “the diligence with which she prepared this case for the appeal hearing and for her continued attention to the matter”. I agree with those sentiments.

 

17. The application for permission to appeal was renewed before the Upper Tribunal. Essentially the argument on behalf of the appellant remained as before, namely that “exclusive use” had to be decided by reference to actual use and not to any legal entitlement under the tenancy agreement.

 

18. I gave permission to appeal and invited the Secretary of State for Work and Pensions to be joined as a party, given the appeal raised a potentially important question of construction on the 2006 Regulations, an invitation he accepted.

 

19. The local authority resists the appeal.  It argues that the First-tier Tribunal reached the correct decision to confirm its own decision that Mr A qualified for the one-bedroom shared accommodation rate (regulation 13D(2)(a)) rather than the one- bedroom self-contained rate (regulation 13D(2)(b)).  The council noted that father and son, being joint tenants, had equal rights to possession of the whole property (see Jones (AE) v Jones (FW) [1977] 2 All ER 231); argued that “exclusive use” in regulation 13D(2)(b) meant excluding all others as a matter of law; and contended that any other interpretation would be both (i) unworkable in practice and (ii) inconsistent with the official guidance in the Department for Work and Pensions (DWP) publication Local Housing Allowance: Guidance Manual (June 2010; “the Guidance Manual”).

 

20. The Secretary of State supports the appeal, but for different reasons to those advanced by Mr A’s representative. Mr Mulrennan, the Secretary of State’s representative, argues that the First-tier Tribunal’s interpretation of the statutory expression “exclusive use” was correct as a matter of law.  However, Mr Mulrennan submits that the tribunal erred in law in two other respects, namely it failed to consider (1) whether or not Mr A and his father were “over-accommodated” in the property; and (2) whether or not the father and the son formed a household together (on which basis Mr A’s LHA entitlement would be assessed by reference to the two-bedroom category under regulation 13D(2)(c)). In doing so, Mr Mulrennan referred to the definition of “occupiers” in regulation 13D(12).

 

21. Regulation 13D(2)(c) provides that “in any other case” (i.e. one not falling within regulation 13D(2)(a) or (b)), then the category of dwelling which applies is “the category which corresponds with the number of bedrooms to which the claimant is entitled in accordance with paragraph (3) to a maximum of five bedrooms.” Regulation 13D(3) in turn provides that:

 

“(3) The claimant shall be entitled to one bedroom for each of the following categories of occupier (and each occupier shall come within the first category only which applies to him)—

(a) a couple (within the meaning of Part 7 of the Act);

(b) a person who is not a child;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child.”

 

22. In reply, Ms Phillips has understandably shifted her position somewhat.  She agrees with the Secretary of State that the tribunal failed to consider the possibility that father and son formed a household together and that Mr A qualified for LHA on the basis of the two-bedroom category by virtue of regulation 13D(2)(c) and 13D(3)(b).  She submits that the Secretary of State’s point about whether Mr A is “over-accommodated” is misconceived.  She also develops further her arguments on the “exclusive use” point, while conceding that neither regulation 13D(2)(a) or (b) is now in issue.

 

A summary of the Upper Tribunal’s conclusions

 

23. I agree with the representatives of both the Secretary of State and the appellant that the First-tier Tribunal erred in law by not having regard to regulation 13D(2)(c) (“Ground A”).

 

24. I agree with the appellant’s representative that the tribunal did not err in law by omitting to consider whether or not Mr A was over-accommodated (“Ground B”).

 

25. Although it is not strictly necessary for this decision, I agree with the representatives of both the Secretary of State and the local authority that the tribunal did not err in law in its approach to the construction of regulation 13D(2)(b) (the “exclusive use” point (“Ground C”)).

 

26. I shall deal with each of those points in turn.  At the outset I should make it clear that this decision implies no criticism of DTJ Howard.  This is one of those cases where on a further appeal the critical issue in the case transpires to be a point that was not even taken at first instance.  Indeed, as indicated in the previous paragraph, I agree with the district tribunal judge’s approach to the interpretation of regulation 13D(2)(b), which was the question posed to him by the parties.

 

Ground A: the tribunal’s error in not having regard to regulation 13D(2)(c)

 

27. Mr Mulrennan argues that, on the facts as found by the tribunal, it is highly likely that father and son form a common household.  He notes that there is no evidence that they are in any way estranged or living separately; indeed to the contrary, as Mr A is his father’s carer and (leaving to one side the legal technicalities) in practice they share the use of several rooms.

 

28. Mr Mulrennan submits further that this has implications for the relevant limb of regulation 13D(2) that applies.  The Secretary of State’s argument is that Mr A senior is an “occupier” within regulation 13D(12) and as such Mr A himself is covered by regulation 13D(2)(c), taken in conjunction with regulation 13D(3).  He points out that this is consistent with the Guidance Manual’s advice that “the LHA rate applicable to a joint tenant will be based on the number of people in their household subject to the maximum allowance of five bedrooms” (at paragraph 2.090).

 

29. Regulation 13D(12) defines “occupiers” as meaning “the persons whom the relevant authority is satisfied occupy as their home the dwelling to which the claim or award relates except for any joint tenant who is not a member of the claimant’s household”.  It is agreed here that father and son were joint tenants; assuming for the present that the father was a member of the claimant’s household, then together they were “occupiers”.  As such, Mr Mulrennan contends, Mr A was covered by regulation 13D(2)(c) and (3)(b), such that the two-bedroom rate applied.

 

30. Ms Phillips agrees with that analysis.  She submits that Mr A senior is both a joint tenant with the claimant and a member of his son’s household.  She refers to Social Security Commissioner’s decision R(IS) 1/99, where Mr Commissioner Powell (as he then was) took the view that the term “household” carries its normal every day meaning of “a domestic establishment”.  In particular, Mr Commissioner Powell ruled that:

 

“In my judgment, what is meant is a group of two or more persons living together as a unit where that group enjoys a reasonable level of independence and self sufficiency” (at paragraph 14).

 

31. I accept that that is the correct approach.  It is well established that the concept of a household is ultimately a matter of commonsense and common experience (see R(SB) 4/83).  As the courts have held, a “household” refers to “people held together by a particular kind of tie” (Santos v Santos [1972] Fam 247 at 262). Furthermore, in the unreported jobseeker’s allowance case of CJSA/1321/2007 Mr Deputy Commissioner White helpfully listed various relevant considerations (at paragraph 24; the fact that he was concerned with the concept of household in the context of a married couple does not affect the general application of his guidance):

 

“In considering whether the appellant and his wife live in the same household, the new tribunal must consider all the circumstances of this case, including the evidence of independent financial arrangements. Matters which should be considered in coming to a common sense and realistic conclusion overall commonly include:

·        the circumstances in which the appellant and his wife came to be

living in the same house;

·       payment for the accommodation made by the appellant;

·       arrangements for the storage and cooking of food;

·       separate eating arrangements;

·       domestic arrangements such as cooking, cleaning, gardening, and bits of household maintenance;

·       the financial arrangements;

·       evidence of family life.”

32. Mr Mulrennan argues further that the tribunal’s omission to consider whether father and son were joint tenants living in the same household is (a) an error of law which (b) requires its decision to be set aside and (c) requires the case to be remitted to the First-tier Tribunal for rehearing on that point. I agree with (a) and (b) but not with (c).  The local authority, on reconsideration, contends that the claimant and his father constituted two separate households, as they each have their own income and each has a legal liability for payment of rent.  I disagree with that analysis.

 

33. I accept that DTJ Howard did not in so many words ask himself the question “is the father a joint tenant who is also a member of the son’s household?”  However, his fact-finding was categorical and comprehensive.  The inference that father and son formed a joint household is not just “very likely”, as Mr Mulrennan submits, but in my view inevitable.  Indeed, if DTJ Howard had gone on to ask that question, and answered it in the negative, then that would have been a perverse conclusion on the facts as he had already found them to be.  In these circumstances a remittal would be an empty exercise.

 

34. I also agree with the appellant’s representative that the local authority’s arguments on the household issue are unpersuasive.  The claimant’s household is not limited to members of his “family”, as that term is defined by social security legislation (which would have excluded his father).  He and his father may form a joint household together and indeed their joint rental liability suggests that they do so.  The crucial factor, however, is that the claimant is the principal carer for his father.  In those circumstances it is very difficult to envisage that they operate separate households within the same dwelling (see e.g. RK v Secretary of State for Work and Pensions [2008] UKUT 34 (AAC)).

 

35. Accordingly, on the basis of the First-tier Tribunal’s findings of primary fact, I make the further finding of fact that Mr A senior was not just a joint tenant with his son but also a member of his household.  In the light of the speech of Lord Slynn of Hadley in the House of Lords in Chief Adjudication Officer v Bate [1996] 1 WLR 814 (also reported as R(IS) 12/96), it does not seem to me to be fruitful to engage in an arid discussion about whether that household was the claimant’s household or the father’s household. As a result the father was an “occupier” within regulation 13D(12).  That meant that the applicant was entitled to the two-bedroom rate under regulation 13D(2)(c) and 13D(3).

 

Ground B: the question of whether Mr A was over-accommodated

 

36. The Secretary of State’s representative observes that father and son are the only occupiers of what is now a four bedroom property.  He suggests that the tribunal erred by not considering whether Mr A was “over-accommodated”.  He does not directly refer to any relevant legislation to support that submission.

 

37. Ms Phillips disagrees with the submission that the tribunal erred on this point.  She argues that in LHA cases the amount of housing benefit entitlement is determined by reference to the rate specified in regulation 13D.  She further submits that the size of the property rented, whether with a greater or smaller number of bedrooms than the claimant’s LHA rate, has no bearing on which category applies.

 

38. Although the parties’ submissions on this point have been much briefer than on the other issues raised by the appeal, I am inclined to agree with Ms Phillips’s analysis.  On the face of it the determination of the maximum rent for LHA purposes is prescribed by regulation 13D. In short, a claimant’s LHA is a function of his household size, its composition and its location.  If regulation 13D(2)(c) applies, for the reasons set out above, then the appellant will only be entitled to the two-bedroom rate at the maximum (subject to any question of apportionment), even though he happens to be living in what is now, following modifications, a four-bedroom property.

 

39. Mr Mulrennan’s submission is presumably based in part on the definition of “cap rent” in regulation 13D(12), which cross-refers in part to regulation 12(6), dealing with “discretion in relation to eligible rent”. Regulation 12B(6), again as amended by the 2007 amending regulations, provides that:

 

“(6) In any case where it appears to the relevant authority that in the particular circumstances of that case the eligible rent as determined in accordance with the preceding paragraphs of this regulation is greater than it is reasonable to meet by way of housing benefit, the eligible rent shall be such lesser sum as seems to that authority to be an appropriate rent in that particular case.”

 

40. It is arguable that the discretion to restrict eligible rent under regulation 12B(6) has either no or very little relevance to the LHA scheme.  This is partly a matter of construction – regulation 12B(6) applies where “the eligible rent as determined in accordance with the preceding paragraphs of this regulation [i.e. regulation 12B] is greater than it is reasonable to meet by way of housing benefit”.  In contrast, a claimant affected by the LHA rules has his rent determined by the regime prescribed by regulation 13D, not as provided for by regulation 12B.  It is also partly a question of the overall regulatory framework.  The very nature of regulation 13D is to confine housing benefit to reasonable levels by the application of the size criteria, so it is difficult to see much practical scope for the operation of regulation 12B(6) alongside that regime.

 

41. In any event, this is a point which not only was not taken at first instance, but was not taken by the local authority, which might otherwise have been expected to raise the matter if relevant to the facts of the case.  There is no real evidence to suggest, even if regulation 12B(6) might apply in principle, that it had any practical application in the circumstances of this case.  The tribunal, of course, was entitled to take the view that it “need not consider any issue that is not raised by the appeal” (Social Security Act 1998, section 12(8)(a)).  True, the First-tier Tribunal has an inquisitorial function, but that does not mean it needs to act like the Grand Inquisitor, searching for any point that might be even only remotely relevant (see by analogy the decision of the Court of Appeal of Northern Ireland in Mongan v Department for Social Development [1005] NICA 16 (reported as R 3/05 (DLA)).  There is no realistic argument that the potential application of regulation 12B(6) was "clearly apparent from the evidence", to use the language of Mongan (at paragraph 16).

 

Ground C: the “exclusive use” point under regulation 13D(2)(b)

 

42. The proper interpretation of the term “exclusive use” in regulation 13D(2)(b) is now no longer crucial to the determination of this appeal.  The point is therefore strictly obiter.  However, as all three parties have made detailed submissions on the issue, and the point may be of general importance to the operation of the LHA scheme, I will comment briefly on the matter.  It is accepted on all sides that there is no statutory definition in the 2006 Regulations of the expression “exclusive use”.

 

43. In my view the arguments of the local authority and the Secretary of State are well grounded.  It follows that a claimant has “exclusive use” of a room within regulation 13D(2)(b) if he or she has a legal right under the tenancy to exclude all others.  The written submission to the tribunal on behalf of Mr A argued that the tenancy agreement did not stipulate that the property was shared and indeed was silent on the point.  The reason for that is that by definition joint tenants each have the joint and several right to possession of the whole of the property as one of the four “unities” (possession, interest, time and title). It is fundamental to the very nature of a joint tenancy that one joint tenant cannot exclude the other joint tenant from any part of the property concerned: Bull v Bull [1955] 1 QB 234 and Hammersmith & Fulham LBC v Monk [1991] UKHL 6.

 

44. Ms Phillips argues that “exclusive use” simply refers to a state of affairs – what the facts on the ground are, rather than what the legal technicalities may provide for.  However, I conclude that the First-tier Tribunal was correct to focus on the issue of “exclusive use” as a legal concept rather than a factual state of affairs.  I reach this conclusion for the following four reasons.

 

45. The first concerns the statutory choice of language.  If the regulations were concerned simply with actual use as a matter of fact, it would have been straightforward to use some phrase such as “the claimant has the sole use of two or more rooms”.  The very epithet “exclusive” imports the concept of the power to exclude, which must be based on the underlying legal relations.

 

46. The second concerns the language of regulation 13D(2)(b) as a whole. The rider to the sub-paragraph provides that “‘room’ means a bedroom or room suitable for living in except for a room which the claimant shares with any person other than a member of his household, a non-dependant of his, or a person who pays rent to him or his partner” (emphasis added).  I agree with Mr Mulrennan that this supports the view that “exclusive use” conveys a legal right to exclude. This is because any room a claimant shares with a third party who is not a member of his or her household is probably a room he shares with that other or others under the terms of the tenancy agreement.  That implies in turn that exclusivity of use is also referable to the terms of the tenancy.

 

47. The third reason concerns the wider context of the 2006 Regulations. Regulation 114A deals with information to be provided to rent officers and paragraph (2)(g) refers to a tenant’s “exclusive use” of one bedroom in the context of various other rooms which, in addition, “the tenancy provides for him to share”.  I agree with Mr Mulrennan that this wording means that the term “exclusive use” thereby implies a legal right to do so. I therefore do not accept Ms Phillips’s argument that the clause referring to the tenancy in regulation 114A(2)(g) is an additional requirement rather than simply an exposition of the meaning of “exclusive use”.

 

48. The fourth reason is that the 2006 Regulations, although they govern a modern social security benefit, are necessarily set against the background of general housing law and, insofar as its scope may be different, the law of landlord and tenant.  As teachers and students of land law know to their frustration, the courts have not always been consistent in their usage of the expressions “exclusive use”, “exclusive occupation” and “exclusive possession”.  However, there is a long tradition of Rent Act case law which deals with sharing and exclusive use of particular rooms, all of which is predicated on the legal rights and obligations under the relevant tenancy agreement – see e.g. Neale v Del Soto [1945] 1 KB 144, Cole v Harris [1945] 1 KB 474, Goodrich v Paisner [1957] AC 65 and more recently Uratemp Ventures Limited v. Collins [2001] UKHL 43.

 

The disposal of this appeal

 

49. I therefore allow this appeal but not on the appellant’s original grounds of appeal and only on one of the further grounds advanced on behalf of the Secretary of State (see paragraphs 23-25 above).  The Upper Tribunal therefore sets aside the decision of the First-tier Tribunal dated 4 November 2009 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). 

 

50. The Secretary of State’s representative invites the Upper Tribunal to remit the case for rehearing by the First-tier Tribunal.  However, I take the view that such a course of action is unnecessary.  The relevant facts have either been found by the First-tier Tribunal (see paragraphs 3-5 above) or can be made by the Upper Tribunal on the basis of those clear primary findings (paragraphs 34 and 35 above).  The First-tier Tribunal’s decision can be remade by the Upper Tribunal.

 

51. The central question to be determined is which category of dwelling applies to Mr A for the purposes of the LHA rules.  This is governed by regulation 13D(2).  He must fall within one of sub-paragraphs (a) to (c).  One might be forgiven for thinking that those sub-paragraphs should be considered in that sequence.  However, the drafting of regulation 13D(2) is not especially user-friendly.  In fact it makes more sense to start with regulation 13D(2)(c), as this is the default position which governs “any other case”.

 

52. Regulation 13D(2)(c) provides that the relevant category is determined by the size criteria in regulation 13D(3).  Those provide that “the claimant shall be entitled to one bedroom for each of the following categories of occupier”.  Mr A and his father are both occupiers (see regulation 13D(12)), as Mr A senior is a joint tenant who is a member of the claimant’s household.  On that basis Mr A is entitled to the two-bedroom rate, as each of them is “a person who is not a child” within sub-paragraph (3)(b).

 

53. The default position, however, is ousted if either regulation 13D(2)(a) or (b) applies.  There are two limbs to regulation 13D(2)(a) (the one-bedroom shared accommodation rate).  The first only applies to “young individuals” (sub-paragraph (2)(a)(i)), i.e. single claimants under the age of 25.  Mr A is too old to fit that group.  The other limb (sub-paragraph (2)(a)(ii)) is especially poorly drafted.  In general, however, and putting to one side exceptional cases, it applies to any claimant allowed only one bedroom under the size criteria and who lives in shared accommodation (e.g. a single claimant).  But, as we have already seen, Mr A qualifies for two bedrooms under the size criteria, so that provision is also inapplicable.

 

54. Regulation 13D(2)(b) (the one-bedroom self-contained accommodation rate) applies where the claimant has exclusive use of certain rooms.  For the reasons set out above, this provision cannot apply to Mr A.  As neither regulation 13D(2)(a) or (b) applies, the default position holds good and the appellant qualifies for the two- bedroom rate under sub-paragraph (2)(c) and (3)(b).

 

55. Under the standard housing benefit rules the claimant’s eligible rent would be apportioned as between the claimant and any other joint tenant (see regulation 12B(4)), in this case his father.  That apportionment rule appears to be incorporated into the LHA scheme by the definition of the “cap rent” in regulation 13D(12).

 

56. The tribunal’s decision is accordingly remade in the terms set out at the start of this Decision (section 12(2)(b)(ii) of the 2007 Act). 

Signed on the original Nicholas Wikeley

on 7 April 2011 Judge of the Upper Tribunal