Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/1857/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:  The appeal is allowed.  I set aside the decision of the tribunal and I remit the appeal to be reheard by a new tribunal in accordance with the directions given below.

 

 

REASONS FOR DECISION

 

1.     This appeal is brought with the permission of a First-tier Tribunal judge from a decision of the First-tier Tribunal given on 26 January 2012 dismissing the appeal of the claimant from a decision of the Nottingham City Council that the claimant was not entitled to housing benefit pursuant to an application received by the council on 8 August 2008 because “regulations prescribe that you have no rent liability”.  The council relied for this purpose on regulation 9(1)(a) and (e) of the Housing Benefit Regulations 2006.

 

2.     As pointed out by Judge Mesher in giving directions on this appeal, the tribunal plainly, if understandably, erred in law by failing to appreciate from the file before them that the appeal related only to a decision refusing benefit applied for in March 2009.  A subsequent claim for benefit which appears to rely on a tenancy agreement entered into, or about to be entered into in April 2010 had never been the subject of a decision by the council and had never been the subject of the appeal, as the council has accepted on this appeal.  The decision of the tribunal was based on the lack of commerciality of the April 2010 tenancy agreement, which was not relevant to the issue before it.  Accordingly I set aside its decision.

 

3.     The appeal was brought on behalf of the claimant by her sister, J, as appointee.  J was appointed to act following an application by her dated 11 February 2009 in which she stated that the claimant had a severe mental disability and was therefore unable to complete the form.  I have seen no medical evidence in this case, but the secondary evidence on the file as to the claimant’s mental state leaves me unclear on what basis it is said that she could not have completed the form, had she wished, with the same assistance she had previously been receiving in relation to disability living allowance and income support which she appears to have been receiving.  In fact the application to become an appointee appears to have followed the claimant’s refusal on legal advice to enter into a tenancy agreement and apply for housing benefit in respect of the rent payable under it.  That legal advice may have been misconceived, but, with assistance, it was sought by the claimant and there is nothing in the evidence I have seen to indicate that she was not capable of giving and following instructions or that, given such advice, she was being in any way irrational in refusing to do what her sister wanted her to do.  Rather, the evidence is that she suffered from schizophrenia and had psychotic episodes, but that she took her drugs and her condition was generally stable.  She appears to have been able to live alone with some support and had a fiancé.

 

4.     Since the appeal was brought, an order has been made by the Court of Protection on 1 February 2010 appointing J as the claimant’s deputy “to make decisions on behalf of [the claimant] that she is unable to make for herself in relation to her property and affairs subject to any conditions or restrictions set out in this order.”  The order was only to become effective one month after it was made and J was not to exercise any of the functions under it until she had provided security in the sum of £16,000.  I am unclear if or when this security was provided,

 

5.     It was pursuant, or purportedly pursuant, to that order that J signed a tenancy agreement on behalf of the claimant in April 2010 upon which the later claim for benefit was made. 

 

6.     The claimant was born in 1965.  It appears from the tribunal’s findings of fact that the claimant was diagnosed as schizophrenic in 1986.  She spent many years during the 1980’s in a psychiatric hospital before moving into shared sheltered housing.  In 1995 she had become estranged from her mother but their relationship ultimately improved.  In October 2004, the claimant moved into her mother’s flat and in 2005 she gave up her supported tenancy.  The flat is a two bedroom flat in a gated development.

 

7.     In order to support the claimant in the community, she was seen regularly by a community social worker and CPN who closely monitored her mental health.  She received the lowest rate of the care component of DLA.  She presented as reasonably stable, responding to medication when experiencing psychotic episodes.  She feels safe and secure in the flat and in the locality where she is known.

 

8.     The claimant’s mother died in January 2006.  Her long leasehold interest in the flat was her only significant asset.  There is a 2009 estimate of its value at p.127 of the file as being £80,000 to £85,000.  At the date of her death she had a debt of £14668.45 owed to the Nationwide Building Society.  The debt was unsecured.  By her will dated 11 February 2004, the mother appointed J and a Mr. MB as executors and trustees of her will and the trusts arising under it.  She left the whole of her estate after payment of her debts and funeral and testamentary expenses to J and MB on trust to sell or retain as they saw fit and to hold it on trust as to half for J.  The other half was left to J and MB on trust during the claimant’s lifetime to apply the capital for the benefit of the claimant “and my other beneficiaries as my Trustees think fit so long as not less than half of my capital applied for is for the benefit of [the claimant]”.  Any income from that half of the estate was to be accumulated for 21 years and any income not accumulated was to be applied for the benefit of the claimant.  “My other beneficiaries” was defined as any children of the claimant and my grandchildren”.

 

9.     There followed directions as to the destination of that part of the estate after the claimant’s death.

 

10. Although the Nationwide has been pressing for payment of the sum owed to it, and this has presumably increased with interest being due since the death of the mother, it has not yet been paid and has been waiting to see if housing benefit can be obtained from which its debt can be paid.  The present position is therefore that this estate has not yet been fully administered, and the trust fund from which the claimant is entitled to benefit will be half of what is left after the debt has been paid with whatever interest is due.

 

11. The claimant continued to live in the flat after her mother’s death.  J wanted her sister to be able to go on living there and appears to have been prepared to wait for her share of the estate to enable this to happen.  Nationwide is said to have been less patient but was still prepared to await the outcome of this appeal.  I note that as late as May 2008, it was still prepared to close the account on receipt of £14,668.45 (p.134) and that this is still described as the outstanding balance on 1 February 2010 (p.146).  Ultimately, if it is not paid, it will no doubt obtain a County Court judgment for the outstanding debt and costs and will then be in a position to obtain a charging order over the flat, after which it can apply for an order for the sale of the flat.  Unless the money can then be found to pay off the debt, the likelihood is that the claimant will be rendered homeless unless the net proceeds of sale after payment of the debt was sufficient to purchase a new home for her.

 

12. In addition, there are apparently considerable repairs that need to be carried out to the flat (statement of reasons, paragraph 17, and see also the list of repairs at p.293), but no money in the trust fund to enable this to happen.

 

13. The only source of funds potentially available to the executors if a sale of the flat is to be averted would be rent or equivalent payments by the claimant.

 

14. It would appear that the claimant, with the assistance of her community mental health worker, took legal advice from two firms of solicitors.  The advice she received was that she should not sign any tenancy agreement as this would weaken her position (see eg, file p.274).  Legal steps were taken on her behalf to see if she could make a claim out of time under the Inheritance (Provision for Family and Dependants) Act 1975, but this was not pursued.  The legal advice appears to have been given on the incorrect basis that the loan from Nationwide was secured by a mortgage on the flat, but that does not affect the fact that unless provision could be made for that debt in a way that would avoid steps having to be taken to sell the flat, whatever arrangements were made within the family, Nationwide would be likely ultimately to force a sale of it.  It was only in October 2009 that the claimant was advised that the solicitors had closed her file, although nothing appears to have happened since October 2008, by which date the solicitors knew that the council had carried out a mental health assessment on the claimant.  The assessment is not in evidence and it is unclear if the solicitors knew of the outcome.

 

15. In April 2008, J and MB sought to persuade the claimant to sign an assured shorthold tenancy agreement at a rent of £495 per month commencing on 1 June 2008, the delay being stated to be to allow time for an application for housing benefit.  The rent was said to have been a commercial rent based on advice received from local estate agents.  I note that this and much other correspondence was sent to the claimant personally by J in addition to being sent to her social worker and the terms of, for example, the letter to the claimant dated 24 April 2008 suggest that J considered at that stage that the claimant was perfectly capable of understanding what was being sought of her and the reasons for it.  It does not suggest that she was regarded as lacking capacity to enter into the agreement.

 

16. The claimant refused to sign the agreement not, so far as appears from the evidence before me, because she was incapable of understanding it, but because she was advised by her solicitor not to sign it (pp.274-5).

 

17. By a form dated 11 February 2009, J applied for housing benefit on behalf of the claimant.  The form (p.105) describes J as trustee, appointee, sister and states that the claimant has a long history of mental illness and is unable to complete the form herself.  It also states that the claimant cannot pay rent because she refuses to sign the housing benefit application form and that her illness is such that she cannot fully understand or manage her affairs.  There was then an incorrect reference to outstanding mortgage arrears, a reference to the unsecured debt owed by the executors to the Nationwide, and that there were no other assets in the trust to pay those arrears.  An accompanying undated tenancy agreement was signed by J and MB as trustees of the mother’s estate and by J as appointee on behalf of the claimant.

 

18. In fact, J’s appointment as appointee gave her no authority to enter into the agreement on behalf of the claimant.  A further letter from J to the council dated 15 March 2009 states that she and MB believed that the claimant refused to sign the tenancy agreement because she was confused and did not understand that she would be entitled to housing benefit and that she would sign it once she knew that she would receive benefit.  They did not intend to enforce the arrears and proposed that the tenancy should start from the date on which housing benefit was awarded.  An accompanying questionnaire (pp.116-117) claimed rent arrears were due from 1 February 2006 at £475 per month but these arrears would be waived provided the rent started to be paid.  It was also stated that owing to her schizophrenia the claimant lacked the capacity to understand her position as tenant.

 

19. The claim was disallowed on 26 March 2009.

 

20. It does not appear to me that at this stage there has ever been even arguably a tenancy agreement with the claimant.  However, housing benefit is payable pursuant to section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 where a person is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home.  As I held in Wychavon DC v EM, [2012] UKUT 12 (AAC), reported as [2012] AACR 41, a person who lacks the capacity to contract is liable to pay a reasonable price for necessaries supplied to him or her.  Accommodation is a necessary and in appropriate circumstances that person comes under a legal liability to pay a reasonable price for accommodation that is supplied.

 

21. At paragraphs 17-29 I stated the position as follows:

 

 

17.   The law as to the supply of necessaries was originally developed at common law. In relation to the sale of goods, it was subsequently codified, first in the Sale of Goods Act 1893 and later in the Sale of Goods Act 1979. Section 7 of the Mental Capacity Act 2005 was a further codification of the common law.

 

18.   The common law position is conveniently dealt with by the Court of Appeal in In re Rhodes, Rhodes v Rhodes, (1890) 44 Ch D 94. In that case a lady, described there as being of unsound mind, was confined for many years in an asylum at a cost of £140 a year. Her income was under £96 a year, and this income was used, first by her brother, and after his death by her nephew as her brother’s executor, in part payment of the £140. The balance was met first by her brother, and after his death, by the nephew and other members of her family. No claim was ever made against her in respect of this balance during her life, nor was any proper account kept. After her death they sought to recover the sums paid by them from her estate.

 

19.   The Court of Appeal concluded that the provision of the accommodation in the asylum was a necessary and that in appropriate circumstances the lady could have come under an obligation implied by law to repay the balance. There was no suggestion that any claim lay against either the brother or the nephew for using her income in part payment, although this was obviously done without her consent. The members of the Court of Appeal all emphasised that the obligation to repay did not arise by way of implied contract. As put by Cotton LJ at 105:

 

a.      “… whenever necessaries are supplied to a person who by reason of disability cannot himself contract, the law implies an obligation on the part of such person to pay for such necessaries out of his own property … . But, then, although there may be an implied obligation on the part of the lunatic, the necessaries must be supplied under circumstances which would justify the Court in implying an obligation to repay the money spent upon them.”

 

20.   In relation to the question whether the provision of the accommodation was a necessary and whether an obligation to repay could be implied, Cotton LJ said this:

 

“I have no difficulty as to the question of the expenditure being for necessaries, for the law is well established that when the necessaries supplied are suitable to the position in life of the lunatic an implied obligation to pay for them out of his money will arise.

…

But we must look at the facts of the case in order to see whether the payments for the lunatic were made with the intention of constituting thereby a debt against the lunatic’s estate.” (105–106)

 

21.   Lindley LJ stated at 106–107:

 

“I think the facts are in favour of the money having been reasonably and properly expended for necessaries. Against that it is said that the lady might have been supported at an expense which her own income would have been sufficient to meet; but as in the case of a claim made for necessaries against the estate of an infant, the claimant is not always bound to shew that he sent the infant to the cheapest school that could be found, so, in this case, the fact that some cheaper place of residence might possibly have been found for this lady is not necessarily an answer to this claim, assuming that it can be made.

…

Now in order to raise an obligation to repay, the money must have been expended with the intention on the part of the person providing it that it should be repaid.”

 

22.   The judgment of Lopes LJ was to the same effect. At 108, he states:

 

“If a person finds necessaries for a lunatic, and intends to be repaid for so doing, and to constitute a debt against the lunatic, I do not doubt that the law implies an obligation on the part of the lunatic’s estate to repay the amount spent on such necessaries.”

 

23.   He continues at 109:

 

“The question what are necessaries must always be considered with reference to the reasonable requirements of the lunatic, having regard to the station in life and means of the person in question.”

 

24.    I also note that in volume 1 of the 30th edition of Chitty on Contracts, at paragraph 8‑008, necessary lodging is regarded as clearly a necessary for which a minor is liable. The same principle must apply in this respect to anybody who does not have capacity to contract.

 

25.   Before me, the local authority abandoned many of the arguments that it had previously put forward in disputing entitlement to housing benefit. Ms Patel expressly, and rightly, disclaimed any further reliance on regulation 9 of the Housing Benefit Regulations 2006. This was unsurprising, as there is now a written tenancy agreement entered into with the authority of the Court of Protection and housing benefit is being paid in respect of the rent payable under that agreement. Ms Patel also accepted that the rent provided for under the purported agreement of February 2009 was a reasonable sum for the accommodation provided to the claimant.

 

26.   The local authority submitted, however, that the claimant’s living arrangements were not “necessary” because she had never previously lived independently in this way. The accommodation which would have been necessary would have been the accommodation provided for her by her parents within their home in a converted garage where she stayed at weekends and sometimes for longer when returning home previously from the care home where she had been living, and where she had lived until her current accommodation had been completed.

 

27.   As Ms Lieven pointed out, this contention is contradicted both by the findings of Judge Rhead and by the uncontested evidence of the claimant’s father, which Judge Rhead had also accepted. Having concluded that her parents had no alternative but to move her from the care home (a finding which is unchallenged) he pointed out that the parents were supported by Worcestershire County Council Social Services Department in their decision to carry out the work to the annex to provide more suitable accommodation than the garage provided for the claimant and her (up to three) carers who would need to reside with her. As the claimant’s father explained in his written evidence at pages 293–6 of the file) they had converted the garage to accommodate the claimant on her returns from the school where she was living on the basis that one of her parents would then sleep with her at night. It was not suitable to accommodate the claimant permanently and could not accommodate her carers. Had it been suitable, they would not have incurred the significant cost of building and adapting the annex. The agreement with Helping Hands, which provided the carers, also expressly provided that the carers must have their own bedrooms, and this was not possible in the garage.

 

28.   Bearing in mind the absence of any suitable available accommodation elsewhere, I am satisfied that the accommodation provided in the adapted annex was reasonably necessary having regard to the claimant’s needs and resources, and it is also clear on the evidence and the findings of Judge Rhead that it was provided on the clear understanding that regular rental payments would be required in respect of it, which would be funded from housing benefit. That understanding was clearly encouraged by Worcestershire County Council Social Services Department.

 

29.   I am in some doubt whether “services” in section 7 of the Mental Capacity Act 2005 is wide enough to cover the provision of accommodation, but I have no doubt that insofar as it is not wide enough, the common law rules as to necessaries survive and that the provision of accommodation is an obvious necessary. In this case the accommodation was provided in circumstances which leave me in no doubt that it was provided with the intention that the claimant should pay for it with the assistance of housing benefit. I have no difficulty therefore in implying such an obligation on the part of the claimant.

 

30.   To be entitled to housing benefit, the claimant does not have to be liable for rent as such. It is sufficient under section 130 of the Social Security Contributions and Benefits Act 1992 that she is liable to make payments in respect of the dwelling which she occupies as her home, an expression that is repeated in the 2006 Regulations. For the reasons given, she did have such a liability at the relevant time.”

 

22. In that case, the claimant totally lacked any understanding of anything.  In the present case, it appears to have been asserted that the claimant lacked the capacity to enter into a tenancy agreement.  If that is right, then it may well be that in the circumstances, by early 2009 if not earlier, she could not reasonably be expected to be allowed to remain at the flat except upon payment of a reasonable sum.  That sum would be a reasonable payment for a necessary – a place to live.  It seems to me in the present case that it is for a new tribunal to determine whether the claimant had or did not have capacity to contract, for which further evidence is likely to be required including medical evidence and including any evidence used before the Court of Protection.

 

23. If she did lack the capacity to contract, the tribunal will also have to determine on all the facts whether by March 2009 she had come under an implied obligation to pay for her accommodation taking into account the factors referred to by the Court of Appeal in In re Rhodes, and by me in Wychavon.

 

24. If she did not lack capacity, it is possible that she should be regarded as a trespasser and so liable for mesne profits in respect of her occupation, but mesne profits are damages for trespass which can only be recovered once possession has been retaken or claimed in court proceedings.  There was therefore no current liability for mesne profits in March 2009 and it would appear to me in any event that damages for trespass was not the sort of liability for payment referred to in section 130 of the 1992 Act.  If it were, it would enable squatters to claim housing benefit if a claim for mesne profits were ever to be made against them.  The liability must in my view be one in contract or some form of quasi-contractual or similar entitlement and not by way of a claim in tort.

 

25. Accordingly, the appeal must be remitted to a new tribunal to determine the claimant’s capacity to contract at the relevant time and whether the accommodation provided was a necessary for which she should pay a reasonable sum.  While regulation 9(1) of the Housing Benefit Regulations 2006 would not apply in those circumstances, since that regulation pre-supposes an agreement between the parties, the factors referred to there may have some relevance in determining whether, to adopt the words of Cotton LJ in In re Rhodes, the circumstances are such as to justify the tribunal in implying an obligation to pay a reasonable price for the necessaries. 

 

26. If the tribunal were to determine that the claimant did not have capacity to contract, and that the claimant was liable to pay a reasonable sum for her accommodation, it would then have to determine what would be a reasonable sum for her to pay for her.  This is unlikely to be more than the amount in the tenancy agreement but could well be less if the amount claimed is at the top end of estate agents’ rental scale.  Evidence as to this should be available for the new tribunal.

 

The 2010 tenancy agreement

27. While it is unnecessary to come to any conclusions on this appeal as to the effect of the 2010 tenancy agreement on the claimant’s entitlement to housing benefit, it seems likely that, and would make sense if, the appeal from the council’s decision in respect of the 2010 claim were to be heard with this claim.  Also the effect of the 2010 agreement was considered by the tribunal under appeal.  It seems to me that I should therefore attempt to assist the new tribunal in dealing with it.

 

28. The council rejected the claim on the basis that the agreement was not on a commercial basis and that the tenancy had been created to take advantage of the housing benefit regulations.  The tribunal under appeal concluded that the tenancy was not on a commercial basis and that the trust created by the will was not created to abuse housing benefit provision.  It seems to have made no finding whether the liability to pay rent was so created.  The reasons for finding that the tenancy was not on a commercial basis appear to have been that (1) the claimant never had the financial wherewithal to meet the rent charged, pay the service charge the water rates and the services account for the flat, (2) the rent has always been considerably in arrears, no deposit was taken at the outset of the tenancy, (3) no action has been taken to remove the tenant from the property despite the considerable arrears that had arisen, (4) the Court of Protection was in the process of considering the situation arising surrounding the tenancy with regard to conflict of interests and (5) there was no evidence that the claimant’s mental health was so unstable that she would not be able to manage a supported move to other accommodation within the same area in the Nottingham suburbs.

 

29. Most of these reasons seem to me to carry little weight by themselves as they would apply to many arms length lettings to impecunious tenants who are dependent on housing benefit for the rent.  This is so even where there is a problem with obtaining housing benefit where landlords, especially offering sheltered accommodation, will wait for the outcome of their housing benefit appeals, and even run them for the tenants, before taking action against them.  Further, I am not clear why the possibility of the claimant obtaining accommodation elsewhere should affect the question whether or not the agreement that has been made is on a commercial basis.  Again, no doubt many other tenants with similar health problems could be found alternative accommodation locally.

 

30. So far as the Court of Protection’s considerations are concerned, there should be evidence before the new tribunal as to the result of its deliberations.  Any order relating to the tenancy and the reasons for it should be produced to the tribunal, as should any written evidence submitted to that court.

 

31. It appears to me that the tribunal will need to consider all the facts of the case.  The claimant has no right to stay in the flat independently of an agreement and the evidence before me suggests that the trustees cannot permit her to do so indefinitely unless she pays something by way of rent or the equivalent.  Her own rights under the trust are very limited.  They are not, as I have indicated, to half the property, but to a very limited interest in half the net estate after it has been properly administered and debts have been paid.  The will itself speaks with two voices on this.  It directs that half the net capital should be applied for the benefit of the claimant and her mother’s grandchildren, while at the same time directing that the income from that capital should be accumulated for 21 years, so that the trustees do not have to apply it in that time for the claimant or any other beneficiary.  On the basis of the limited evidence before the tribunal as to the value of the flat, the net capital would be no more than £37,500 or so, and if interest is accumulating on the Nationwide loan, it could end up significantly less.  The claimant has no right to that capital except in whatever way the trustees choose to use it for her benefit and if they choose to invest it for an income, and then accumulate the income, she would seem to get no real benefit whatsoever.

 

32. In fact J and her co-trustee appear to want to enable the claimant to remain in the flat but can only do so on a commercial basis in the sense that they can only do so consistently with their obligations as executors if they can make other arrangements for the discharge of the Nationwide debt.  They can only do this, it would seem, if they can get rent for the flat.  If not, then they would ultimately have to take steps to evict the claimant.  In this respect, the case is different from CH/1096/2008, where the mother of a disabled man, who was also his landlord, gave evidence that she would never take any steps to evict him.  Further, in that case the mother had signed the tenancy on behalf of the claimant after the Court of Protection had declined to act, whereas here J was by April 2010 acting as the claimant’s appointee.  I am unclear what authority the mother even had to act in that case.

 

33. There is undoubtedly a problem in assessing the commerciality of an agreement where the same person signs both as landlord and as agent of the tenant.  But the position here is that the claimant was already in the flat before the mother died and it is plainly sensible that she should remain there if possible.  For that possibility to be realised, some rental payment is needed.  J has been authorised to act by the Court of Protection.  Nobody else is able or willing to act.  In those circumstances, it does not appear to me that an agreement which is otherwise on a commercial basis is rendered uncommercial just because it is signed by J on behalf of the claimant.  It may, however, be rendered uncommercial if the terms actually agreed are not those which can reasonably be expected to be agreed between a willing landlord and a willing tenant in the expectation that housing benefit will be obtained by the tenant.  It seems likely to me that given that J is contracting on both sides, with a resulting conflict of interest, the approval of the Court of Protection to the letting would need to be obtained.  That is something that the tribunal might investigate.  One would expect the Court of Protection to need to be satisfied as to rental levels, for example, particularly bearing in mind that half the rent will be for the benefit of J herself.

 

34. The question of commerciality will need to be determined by the new tribunal in relation to the pending second appeal, having regard to all the facts, it being for the council to establish that the tenancy is not on a commercial basis.  No clear definition of commercial basis exists, but a proper agreement on terms that have been approved by the Court of Protection and entered into for a good commercial reason such as the need to pay off a debt of the estate would  prima facie appear to be on a commercial basis.

 

35. If it should appear that the tenancy has been rescinded or avoided in some way by the Court of Protection, the tribunal will still need to consider whether the claimant at that time was capable of contracting on her own behalf and if not whether she had any liability to pay some sum for her accommodation as a necessary.

 

36. Provided the relevant factors have been considered, the issue of commerciality is one of fact and, in borderline cases, there is room for different tribunals to come to different conclusions of fact on the evidence before them.

 

37. The other question is whether regulation 9(1)(e)(i) of the Housing Benefit Regulations applies.  In CH/4/2008, [2009] UKUT 7 (AAC), Judge Bano stated at paragraph 13 that “I consider that for the purposes of regulation 9(1)(e) of the 2006 regulations a person is only a ‘beneficiary’ of a trust if under the terms of the trust the person can be permitted to occupy the dwelling which is the subject of the housing benefit claim.”  In the present case, given that half of the estate belongs to J absolutely, and that the flat requires to be sold, unless money can be raised elsewhere, to pay off the debts of the estate, the trustees have no power to permit the claimant to occupy the flat.  That is only happening with the consent of J as absolute owner of half the net estate and because Nationwide is being tolerant in waiting to be paid.

 

 

38. In any event, the liability does not appear to me to have been created to take advantage of the housing benefit scheme.  The primary purpose in creating it was to find a way to enable the claimant to remain in the flat rather than having to move, at possible risk to her health, to another home where she would also need to receive housing benefit, and where additional resources may be needed to support her.  As pointed out in CH/39/2007, taking advantage of the housing benefit scheme means something akin to abuse of the scheme or taking improper advantage of it.  It does not mean using the scheme or making the most of the opportunities it offers.  It is possible that the rent may prove to be slightly too high, a matter for the new tribunal, but it appears to have been determined by reference to the appropriate market rent.  As with commerciality, the question of taking advantage is one to be determined by reference to all the facts, but on the face of it, on the information before me, the arrangement was not to take advantage of or to abuse the scheme.

 

 

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

7 March 2013