Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/4148/2012

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by the Claimant, brought with my permission, against  decisions of a First-tier Tribunal sitting at Brighton on 8 May 2012. My decisions are as follows:

(1) In my judgment for the reasons explained below the First-tier Tribunal’s decision in respect of housing benefit was not wrong in law, and the appeal against that decision is therefore dismissed.

(2) However, for the reason set out below the First-tier Tribunal’s decision in respect of council tax benefit was wrong in law. By way of interim decision I set aside the First-tier Tribunal’s decision in respect of council tax benefit. In order to enable me to decide how to re-make the First-tier Tribunal’s decision in respect of council tax benefit the Council must, within one month from the date of issue of this decision, make a further written submission in relation to council tax benefit (see paragraphs 20 to 24 below). On receipt of that submission by the Upper Tribunal it is to be sent to the Claimant, who may make a further written submission in relation to it within one month from the date when the Council’s submission is sent to her.

2. In my view of my conclusions, referred to below, as to the effect of the legislation, I can set out the facts briefly and very much in outline.

3. The Claimant is a woman aged 49 who was from 1997 a tenant of a property at Mannings Heath, West Sussex which I shall refer to as “no. 14”. From 2001 she was in receipt of income support, and her rent was paid by means of housing benefit, and she was also in receipt of council tax benefit.

4. She suffered head injuries in 2005 and 2006, on each occasion suffering subdural haemotomas which required evacuation by brain surgery. As a result, the Claimant has since 2006 been liable to seizures, which it has not proved possible entirely to control by means of medication. She was admitted to hospital, following seizures, in June, August and November 2007, and in May 2008. On each occasion she was discharged either on the day after admission or the following day.

5. On a date not later than 4 August 2008 the Claimant went to live in Feltham, Middlesex in a property owned or rented by a Mr C. The Claimant says that (i) she kept some possessions at no. 14 (ii) she went to live in Feltham because she did not consider it safe for her to continue to live alone while she was still suffering from the risk of seizures (iii) she did not move out of no. 14 and always intended to return there when her condition improved, as she hoped it would (iv) she returned to no. 14 from time to time, and spent some nights there.

6. On becoming aware, in January 2010, that the Claimant was no longer actually living at no. 14, Horsham District Council suspended payment of housing and council tax benefit, and in June 2010 conducted an interview of the Claimant under caution.

7. On 18 August 2010 the Council made a decision superseding and removing with effect from 4 August 2008 the Claimant’s entitlement to housing benefit and council tax benefit, and a further decision that overpayments of housing benefit totalling £7250.82 for the period 4 August 2008 to 11 January 2010 and of council tax benefit totalling £1395.90 in respect of the period 4 August 2008 to 1 February 2010 were recoverable from the Claimant.

8. On 27 September 2010 the Claimant signed a statement admitting an offence of failing to notify the Council that she was no longer physically occupying no. 14 as a home and continuing to receive housing and council tax benefit to which she was not entitled, and consented to being cautioned for that offence.

9. The Claimant gave up possession of no. 14 in September 2010, and has continued to live with Mr C since then, although not (it has been accepted by the DWP) as husband and wife.

10. The Claimant appealed against the Council’s decisions of 18 August 2010, but by the decision now under appeal to me the First-tier Tribunal dismissed that appeal. The First-tier Tribunal held an oral hearing, at which the Claimant attended and gave evidence.

11. I held an oral hearing of this appeal, at which the Claimant appeared in person, supported by Mr C. The Council was not represented.

12. The First-tier Tribunal set out its essential reasoning as follows:

“In coming to a decision the tribunal considered all the evidence before it both written and oral.

The issue before the Tribunal was not one of ‘living together’ but rather one of non residency. The Housing Benefit Regulations provide that a claimant is entitled to Housing Benefit if she is liable to make payments in respect of a dwelling in Great Britain which she occupies as her home. The Housing Benefit Regulations of 2006 which are set out in the submission papers give the specific statutory background.

The Tribunal noted that the appellant had accepted in her interview under caution that she had only stayed two nights at the property in question over a two year period. The appellant was staying with her friend due to her medical needs. The letter from Dr Heath however provides “there is no medical reason for her needing an attendant at home.” The issue of the appellant’s health raised the point as to whether the Temporary Absence Provisions applied (Regulation 7(13) and (16)). However this cannot be the case as she was absent for more than 13 weeks and the 52 week rule does not apply as she was not receiving medically approved care elsewhere. The decision notices sent by the Council clearly provided that the appellant must tell the Council immediately in writing of any changes that affect her benefit. The appellant did not do this. The appellant was not as a matter of fact occupying the property as her home.”

Housing benefit

13. A copy of Regulation 7 of the Housing Benefit Regulations 2006 is at pp. 165 onwards of the papers before the First-tier Tribunal. The ground on which I gave permission to appeal was that I was concerned that, in its essential reasoning which I have set out above, the Tribunal had not referred to the fact that reg. 7(1) of the Housing Benefit Regulations 2006 provides that, subject to the following provisions of reg. 7, “a person shall be treated as occupying as his home the dwelling normally occupied as his home” (my emphasis). I was concerned that, in failing to note the presence of the word “normally”, the Tribunal might have failed to consider whether in all the circumstances she could be considered as “normally” occupying it during the overpayment period.

14. However, having had the opportunity to consider the effect of the legislation more fully, I am now clear that the Tribunal did not need to consider whether no. 14 remained the dwelling “normally occupied” by the Claimant as her home, giving those words their ordinary meaning. That is because it is in my judgment clear that, in the situation where there is a temporary absence from a dwelling which the claimant occupied as his/her home, the claimant can only be treated as continuing to occupy that dwelling if and so long as one of the later provisions in reg. 7 relating to temporary absence are applicable. That is in my judgment so for two reasons.

15. First, it would be wholly inconsistent with reg. 7(13), which relates to temporary absence (for any reason) not exceeding 13 weeks, if a claimant could successfully assert that a dwelling from which he had been absent for longer than that period, in circumstances not covered by any of the other specific provisions in reg. 7, remained the home “normally occupied” by him.

16. Secondly, reg. 7(1) begins with the words “subject to the following provisions of this regulation”, and reg. 7(13) is as follows:

“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 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.”

The word “only” in reg. 7(13) in my judgment makes it plain that, unless the terms of para. (13) are satisfied, a person who is temporarily absent from his home, and who does not fall within any of the other specific provisions relating to temporary absence, cannot be regarded as continuing to occupy it for housing benefit purposes. That was also the conclusion of the Deputy Social Security Commissioner who decided R(H) 9/05. (That decision related to the provisions of reg. 5 of the Housing Benefit (General) Regulations 1987, which was in essentially the same terms as reg. 7 of the 2006 Regulations). In para. 19 of his decision the Deputy Commissioner said:

“The net result is that, whatever the general meaning of “the dwelling normally occupied as his home” in regulation 5(1), when the claimant was temporarily absent from the property she had to be treated as if she was there to the extent that she fell within one of those provisions, but could not otherwise be treated as occupying the flat as her home during her absence.” (My emphasis).

17. In my judgment it is clear that the Claimant in the case before me did not at any time satisfy reg. 7(13), because it was impossible to say, when she went to live with Mr C, that the period of absence from no. 14. was unlikely to exceed 13 weeks. Her medical condition of a propensity to seizures had by then been present for some 2 years, and there was on the evidence no ground for optimism that she would be likely to recover from that within 13 weeks. (Even if reg. 7(13) had been satisfied, it could of course only have assisted her in respect of a period of not more than 13 weeks).

18. It is also clear that the Claimant did not satisfy reg. 7(16) and (17). She was neither “undergoing ….medical treatment, or medically approved convalescence, in accommodation other than residential accommodation” within para. (16)(c)(iii), nor “receiving medically approved care provided in accommodation other than residential accommodation” within para. (16)(c)(vii). “Residential accommodation” has the meaning set out in para. (18). The Claimant was clearly not living in “residential accommodation”, but she was not undergoing medical treatment or medically approved convalescence in Mr C’s property. She was of course taking medication while living there, but she was not receiving any professional treatment or care there, but only on her admissions and visits to hospital.

19. As I have said, my conclusion as to the meaning of the legislation means that I must dismiss this appeal, in so far as it relates to housing benefit. The fact (as she assert) that the Claimant was absent from no. 14 for medical reasons is irrelevant, as is the question whether she intended to return to it or continued to regard it as her home or continued to have possessions there.

Council tax benefit

20. The Council’s submission to the First-tier Tribunal focused on the housing benefit legislation, as did the First-tier Tribunal’s Statement of Reasons. In most cases the relevant council tax benefit provisions will be in substance identical, and the outcome in relation to council tax benefit will therefore be the same. However, that is not necessarily so in this case.

21. Under s.131(3)(a) of the Social Security Contributions and Benefits Act 1992 the main condition of entitlement to council tax benefit in respect of any day is that the claimant “is for the day liable to pay council tax in respect of a dwelling of which he is a resident.” By s.131(11) “resident” has the same meaning as in Part I or II of the Local Government Finance Act 1992, which deals with liability for council tax. Section 6(5) of that Act provides that “resident” means an individual who has his sole or main residence in the dwelling.

22. It would appear clear that the Claimant did not during the overpayment period have her sole or main residence in the dwelling. She therefore cannot have been entitled to council tax benefit. However, it would appear that for the same reason she cannot have been liable to the Council for council tax (cf. the position in R(H) 3/08). If that is the case, then it would appear at first sight that it was wrong for the Council to decide that the excess council tax benefit is recoverable from the Claimant. If she had no liability for council tax, she did not need council tax benefit in order to discharge her liability. My provisional view is therefore that the Claimant’s appeal in respect of council tax benefit ought to be allowed to the extent of setting aside the decision that excess council tax benefit is recoverable from her.

23. It may well be, however, that that will not ultimately benefit the Claimant. If the Claimant was not liable for council tax in respect of no. 14, then presumably the landlord was, and the landlord would in turn presumably be able to recover it from the Claimant under the terms of the tenancy agreement. If that is right, although the Claimant would not be liable to the Council directly to pay council tax to it, she would be liable to reimburse the landlord for whatever council tax the landlord is liable for.

24. I do not consider that I can simply ignore all this and dismiss the Claimant’s appeal in respect of council tax benefit. The First-tier Tribunal’s decision in relation to council tax benefit must be wrong in law in that it gave no separate consideration to council tax benefit. I did not raise these points when giving permission to appeal, or at the hearing, because they have only occurred to me when writing this decision. As neither the Council nor the Claimant have had any opportunity to make any submissions about them, I consider that the only sensible course is to set aside the First-tier Tribunal’s decision in respect of council tax benefit as wrong in law, and to invite further written submissions about it from the parties: see para. 1 above. On receipt of those submissions I will decide what the correct decision in respect of council tax benefit should be.

Generally

25. The Claimant has been at pains to establish that she was not guilty of fraud, and to explain why she accepted the caution in relation to the criminal offence which she admitted. I emphasise that neither the First-tier Tribunal nor I have been concerned with whether a criminal offence was committed or with whether there was fraudulent or dishonest intent on the Claimant’s part. The Council’s case that the Claimant’s housing benefit and council tax benefit awards were properly superseded with effect from August 2008, and that the overpaid benefit is recoverable, does not require proof of fraud or dishonesty. In particular, overpaid housing and council tax benefit is recoverable unless the overpayment was due to official error, which was plainly not the case here. The fact that the Claimant’s appeals to the First-tier Tribunal and then to the Upper Tribunal have not succeeded does not therefore involve any finding of fraud or dishonesty on the part of the Claimant. I also observe that, unlike most cases of overpayment, the overpayments in this case were of little benefit to the Claimant, because the housing benefit was paid to the landlord in discharge of her liability to rent in respect of a property at which she was not actually living, and the council tax benefit merely discharged the liability which the Council considered the Claimant to have.

Charles Turnbull

Judge of the Upper Tribunal

2 October 2013