Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

This appeal is refused.

The decision of the First-tier Tribunal held at Dundee on 13 February 2013 was not erroneous in law. 

REASONS  FOR  DECISION

Background

1. The appellant, who is now aged sixty two, was awarded State Pension Credit, at the guarantee credit level, with effect from 6 January 2012.  On 15 February 2012, he submitted a claim form for Housing Benefit and Council Tax Benefit to the respondent’s office.  Unfortunately, as will be seen, the respondents did not either forward this form to the appropriate local authority or return it to the appellant for that purpose.  Instead, they treated it as an application for the addition of “housing costs” to the State Pension Credit.  The claim related to ground rent in respect of a mobile home.  On that basis, the claim was refused as this ground rent did not fall under any of the headings in paragraphs 11 to 13 of Schedule II of the State Pension Credit Regulations 2002.  In particular, it was considered that it was not ground rent relating to “a long tenancy”, as defined in paragraph 13(6)(d) of those Regulations.  The decision was reconsidered but not altered.  The appellant’s position was that he had been told orally that this was a 99-year lease, but he stated that there was no written lease.

2. The appellant’s appeal to the First-tier Tribunal was refused.  In its Statement of Reasons, the tribunal stated that a long lease which gave rise to an obligation to pay ground rent for the purposes of the regulations must be capable of registration in the Land Register of Scotland.  To be capable of registration it required to be in writing.  An informal verbal lease could not be so recorded.  Consequently, in the view of the tribunal, any rent payable in terms of such an arrangement made verbally was not a qualifying housing cost.  The tribunal noted that there had been a request on the appellant’s behalf to use the power to summon or cite a witness, apparently someone representing the site owners, to answer questions with regards to the lease.  The tribunal, however, noted the appellant’s confirmation that there was no written lease and, it was said, no paperwork.  Accordingly even if the position was confirmed by the site owner he would still not be capable of registration and therefore not fall within the regulations. 

3. The appellant sought permission to appeal and, in doing so, despite his earlier indication that there was no paperwork at all, produced a “Written Statement under Mobile Homes Act 1983” signed by himself and the site owner’s representative.  Although this was not before the tribunal below, there seems no reason to doubt its genuineness and I consider it appropriate to have regard to it and consider whether it assists the appellant’s position.  Permission to appeal was refused by the First-tier Tribunal but granted by an Upper Tribunal Judge. 

4. The appellant’s grounds of appeal are not very clearly expressed in legal terms, which is understandable as he is not represented.  He has produced a newspaper cutting indicating that Housing Benefit is payable to travellers in respect of site rents.  He suggests that it would be reasonable to assume that his tenancy was long-term, because he paid a substantial capital sum to buy the property on the site and the purpose of the purchase had been to live there for the rest of his and his wife’s lives. The property had a permanence.  He had been advised by the site owner that nothing “legal” had to be registered and there was no indication that it was his responsibility to take that step.

5. In his submission in this case, the Secretary of State does not support this appeal.  He submitted that caravan park fees normally fell under Housing Benefit, under Regulation 12(1)(g) of the Housing Benefit (General) Regulations 2006 (I think the reference in this case should have been to the corresponding  regulation in the Housing Benefit (Persons who have attained the qualifying age for State Pension Credit) Regulations 2006, but the provision is the same).  This site rent only fell under “housing costs” in the State Pension Credit Regulations if it was ground rent relating to a “long tenancy”, as defined in Regulation 13(5)(d). Reference is then made to a Commissioner’s  decision, R(H)3/07, on the meaning of “long tenancy”.  The tenancy must be created by deed and registered at the Land Registry.  It was not sufficient to have an agreement which purported to be for more than twenty one years.  A legal estate must have been created.  In this case it was submitted, there being no written lease and no paperwork, there was no evidence that the ground rent was connected to a long tenancy and no evidence of registration.  The claimant accordingly did not satisfy the condition.

6. The appellant did not take the opportunity to make any further observations.  He did request an oral hearing, but that request was refused.

Consideration

7. I have considerable sympathy with the appellant.  For reasons which I shall endeavour to explain clearly his appeal in my view cannot succeed. He does, however, appear to be a victim of the complex interface between Housing Benefit and State Pension Credit, and, on the material available to me, it looks as if his claim may have been poorly handled by the Department of Work and Pensions Office to which he submitted it.  It looks as if he claimed the correct benefit but submitted it to the wrong office. 

8. As the Pension Service pointed out when it eventually made a decision on the appellant’s claim, housing benefit does indeed appear to be payable in respect of the site rent which the appellant was paying when he made his claim.  Whether under the general Housing Benefit Regulations referred to by the respondents, or under Regulation 12(1)(g) of the Housing Benefit (Persons who have attained the qualifying age for State Pension Credit) Regulations 2006, payments in respect of the site of a mobile home occupied as the claimant’s home are payments which qualify for that benefit.  Regulation 64 of the 2006 Regulations provides that a claim for housing benefit may be sent or delivered to the appropriate DWP Office where the claimant is also claiming State Pension Credit, and in that case must be forwarded by the DWP Office to the relevant authority i.e. the local authority administering housing benefit.  Unfortunately for the appellant, however, that provision does not apply unless the claim is being made along with the claim for State Pension Credit.  The provision requiring the DWP Office to forward the Housing Benefit claim does not apply to the situation in which the appellant claimed.  Accordingly, the appellant had not made a valid claim for Housing Benefit (and the back-dating provisions within that regulation do not appear to assist him).

9. Although the claim was made on a Housing Benefit form (and indeed appears to have included information on the basis of which the site rents would have qualified for that benefit), the claim was not forwarded to the local authority but was instead treated as an application for “housing costs” in relation to State Pension Credit, and proceeded on that basis.

10. At all events, the appeal has been taken in relation to “housing costs” under State Pension Credit, with the Department of Work and Pensions as respondent, and not as an appeal in relation to Housing Benefit with the local authority as respondent.  The issue is whether the site rents were “payments by way of ground rent relating to a long tenancy” (State Pension Credit Regulations 2002, Schedule II, paragraph 13(1)(e)).  Paragraph 13(6)(d) of the same schedule defines “a long tenancy” as:

“A tenancy granted for a term of years certain exceeding twenty one years, whether or not the tenancy is, or may become, terminable before the end of that term by notice given by the landlord to the tenant or by re-entry, forfeiture (or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal unless it is a lease by sub-demise from one which is not a long tenancy.”

11. The tribunal reasoned on the basis that in order to satisfy that definition a long lease had to be capable of registration in the Land Register of Scotland; to be capable of registration, it required to be in writing and whatever may have been agreed verbally there was no written lease. 

12. I do not agree, as regards property in Scotland, that it has to be capable of registration.  That reasoning appears to come from R(H)3/07, a decision which can be seen to be based on English property law.  There, there was an agreement for lease for a term of twenty five years.  The Land Registration Act 2002 apparently provided that a long lease which was not registered could, at most, take effect, as regards duration, in equity only.  The Deputy Commissioner held that it did not therefore satisfy this definition (with the result, in that case, that the lower tribunal had correctly held the claimant entitled to Housing Benefit!). 

13. The position in Scotland is at least slightly different.  It is the case that a lease for twenty years or more requires to be registered in order to make the right effectual against singular successors but a tenancy may be enforceable only against the grantor and, as I see it, it will still then be a tenancy.  This distinction may seem somewhat theoretical in a benefits context, but there are situations, and the statutory regulation under the Mobile Homes Act 1983 is one, in which there is an interest only against the grantor. 

14. The tribunal’s underlying reason, that there was no written agreement, is, however, correct.  In Scots Law a lease for more than one year requires to be in writing.  So this lease agreement, not being in writing, could not qualify under this provision. 

15. As I have indicated, however, the appellant, having gone before the tribunal on the basis that there was no paperwork involved in the site rental agreement, has in fact subsequently produced the four page “written statement” under the Mobile Homes Act 1983, and I have been prepared to consider this, as I say, to see whether it could assist the appellant.  From the copy produced, it looks as if this may be a statement provided by the site owner, as required by the Act, as the copy at least does not show the appellant’s (or his wife’s) signature.  At all events, the statement records that the Mobile Homes Act 1983, as amended, applies to the agreement.  The statement records a “start date”, 4 March 2011, but nothing further about duration.  Reference to the Act reveals that it, in effect, provides a form of statutory security of tenure, insofar as the circumstances in which the site owner can terminate the agreement are limited, but the appellant as occupier can terminate following the notice provisions in the Act.  As I have indicated above, one situation in which the occupier does not have security (provided, I think, that notice of this has been given in the Written Statement), is where the site owner’s estate or interest in the land is to end.  Apart from the limited provisions about termination, the Act provides that the agreement is of indefinite duration.

16. This brings us back to the definition in paragraph 13(6)(d).  Could this agreement which is regulated under the Mobile Homes Act 1983 be “a tenancy granted for a term of years certain”, or could it be  “a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal”?

17. The latter expression, clarifying and possibly expanding the definition, does appear to admit the possibility that a particular statutory provision might have the effect of bringing a lease within the definition, although I express no definite view on that.  In my view, however, the 1983 Act does not have that effect. Quite simply, it does not create a fixed term.

18. In short, while I do not consider registrability in Scotland to be essential, there is here neither a written lease nor an agreement which, by virtue of the provisions of the Mobile Homes Act 1983, can be brought within the definition, for the purposes of State Pension Credit, of  “a long tenancy”.

19. Any other view of the effect of the Mobile Homes Act 1983 would appear to cause difficulties in the statutory scheme under which housing costs qualify either for Housing Benefit or under State Pension Credit, but not both.  The decision maker here correctly indicated that periodical payments in respect of the site on which a mobile home stands, constitute rent for which Housing Benefit is payable and no amount may be met as housing costs in State Pension Credit in respect of Housing Benefit expenditure.

20. The appeal must therefore fail, but this brings me back to comment on the apparently unsatisfactory way in which the appellant’s claim was dealt with.  There may possibly have been more communications, or more to it than appears from the documentation in this appeal, but it does look as if the appellant was poorly served when he applied for Housing Benefit to which he was, at the time, entitled (but which it is now apparently too late for him to claim), but quite understandably submitted that application to the DWP Office.  One might have hoped that there would be some better procedure for dealing with that situation.

(Signed)

J N  WRIGHT QC

Judge of the Upper Tribunal

Date: 4 September 2013