Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: CH/1563/2012

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal sitting at Caernarfon on 18.01.12 under reference SC915/11/00017 involved an error on a point of law and is set aside.

 

However, the Upper Tribunal makes its own decision to the same effect, namely the appellant is not entitled to housing benefit for the periods he stayed overnight at the night shelter between December 2007 and June 2008. 

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007

 

 

 

REASONS FOR DECISION

 

 

Introduction

 

 

1. This is an appeal by the claimant from a decision of the Caernarfon First-tier

Tribunal (SEC) dated 18.01.12. I will refer to this from now on as “the tribunal”. The tribunal upheld the decision of Isle of Anglesey County Council (“the Council”) of 27.07.09 to the effect that the appellant was not entitled to housing benefit to cover the costs of the times he stayed overnight at the night shelter in Holyhead between December 2007 and June 2008.

 

Issue

 

2. The interesting issue on the appeal is whether on the facts of this case the charges made to the appellant for the periods when stayed overnight at the night shelter were payments he was liable to make “in respect of a dwelling…which he occupie[d] as his home”: per section 130(1) of the Social Security (Contributions and Benefits) Act 1992 (‘the SSCBA’). 

 

3. However, it needs to be stressed that this case turns on its own particular facts.  The issues arising in these types of cases are “fact intensive”, to borrow that phrase from Lord Justice Mance, as he then was, in Secretary of State for Work and Pensions –v- Miah [2003] EWCA Civ 1111; R(JSA)9/03 at [paragraph [59]. The approach set out below may be of some general assistance in other similar cases.  However, nothing said below is intended to prescribe how housing benefit claims from rough sleepers should be decided.

 

Decision in Summary

 

4. Although I find the tribunal erred in law in its reasoning and the factors it focused on, on the above central test I have decided this appeal against the appellant. In my judgment, a person who is allowed to stay overnight (for a charge) at a night shelter but is not allowed to remain there during the day and so has to leave in the morning taking all his belongings with him, and has no right to stay in any part of the night shelter or indeed right generally to stay there (in the sense that if he turns up late and the shelter is full he will be turned away), is not occupying a dwelling as his home.

 

The Council’s refusal of benefit

 

5. The Council had decided on the 27^th of July 2009 that the appellant was not entitled to housing benefit for the payments he had been liable to make to the night shelter between December 2007 and June 2008 on the basis either that the night shelter was not a “dwelling” or, if it was, that he was not occupying the dwelling as his home.  This decision was made some considerable time after the times the appellant slept overnight at the night shelter. In fairness to the Council, however, this in part is explained by the fact that no claim for housing benefit was made until April 2008, and also because thereafter the Council was (a) seeking external legal advice from counsel about the law and the merits of the claim(s), and (b) was meeting with the night shelter providers (if I can call them that) to discuss the claims and the basis on which people were allowed to stay overnight at the night shelter.

 

6. If I may say so, it is evident that all of these steps were being taken with the best of intentions by the Council and those providing the night shelter. On a cold (and inaccurate) analysis this may be seen just as a dispute about who paid for the night shelter. However, it is plain to me from reading through all the papers that both the Council and the night shelter providers were motivated primarily with ascertaining whether housing benefit could lawfully be made available to those ill and very vulnerable people who needed a roof over their heads at night, and the cooperative way in which they sought to do this is to be commended. 

 

7. I should also say that the Council was anxious to stress that its decision on this case was confined to its particular facts, that it was not authority for, nor was the Council saying that people staying in night shelters could never qualify for housing benefit, and indeed the Council had awarded housing benefit in respect of people staying at another night shelter.

 

First-tier Tribunal

 

8. An appeal was made against the Council’s decision by the appellant on the 15th of January 2010.  The appeal took some time to come on for hearing before the tribunal, for reasons that are now immaterial, but was subject of one hearing on the 8^th of September 2011 and another on the 18^th of January 2012.

 

9. In its decision of 18.01.12 the tribunal dismissed the appellant’s appeal and confirmed the Council’s decision.  Its reasoning covered three issues: firstly, whether the night shelter was a hostel under the housing benefit regulations; secondly, whether the appellant occupied the night shelter as his home; and, thirdly, if entitlement to housing benefit did arise, the basis on which any award of housing benefit was to be calculated (given that the appellant did not stay overnight at the night shelter for a full week). In the light of the tribunal’s conclusion on the first two issues it did not need to address the third issue as it did not arise, and nor do I.

 

10. It is important to set out what the tribunal found as the relevant facts.  It is also important to emphasise that it made those findings on basis that they were not in dispute, and that undisputed basis of those findings of fact has not been challenged on the appeal to the Upper Tribunal[1].

 

11. The tribunal’s findings of fact are set out in paragraphs 8 to 9 of the statement of reasons (I have omitted some irrelevant detail):

 

“The….Night Shelter [was] on the ground floor of the former British Legion club in Holyhead. This was an open area which had been partitioned to form an office, a male sleeping area or dormitory for 8 persons and a female dormitory for 2 persons. The maximum number that could be accommodated was 10.  There was a food preparation area where users could prepare the food provided which consisted of bread, ham, cheese, baked beans, cereal, jam, tea, coffee and (presumably) milk and sugar. There was a stand alone boiler for hot water, microwave oven, kettle, toaster, and fridge. The existing male and female toilets and washbasins in the building provided the toilet and washing facilities.  Shower facilities were available in the day centre which was about a quarter of a mile away from the night shelter. The two facilities were run in conjunction with one another.  Facilities for storage of personal belongings took the form of individual plastic boxes which were locked together in a large cupboard. In addition each user had a bedside locker for clothing and a chair.  Places at the night shelter were allocated on a first come first served basis.  In practice no one had been denied a place although it was conceded at the hearing that in theory if more people had turned up than there were beds for then some would have been turned away.

 

…The purpose of the accommodation was to give shelter to night sleepers of whom it was known there were a number in the area.  Many had…alcohol or drug problems.  Those wishing to stay in the night shelter were required to register at the day centre by 6pm.  Newcomers (those who had not stayed in the shelter before) would have been assessed earlier.  There were no specific criteria for admission.  If they posed no risk they were admitted on a first come first served basis.  A hot meal was provided at the day centre and those admitted were escorted as a group to the night shelter at 8pm.  Advice on their rights, applications for housing and help and advice with personal difficulties was provided by trained staff at the day centre and by the two members of staff on duty at the night shelter.  Staff were encouraged to interact with users.  Users were required to vacate the premises at 8am”.

 

12. The tribunal decided that the night shelter was a hostel “and, therefore, a dwelling for the purposes of a claim for housing benefit”, but that the appellant was not occupying the hostel as his home.  It noted that some hostels are capable of being occupied as a person’s home, otherwise there would have been no need for the specific provision to bring hostel within the definition of dwelling.  However, the tribunal reasoned that as the night shelter could not be seen as one dwelling (because showers had to be taken elsewhere), and given the absence of any security of accommodation or tenure, this meant that the appellant was not occupying the night shelter as his home for housing benefit purposes.

Permission to appeal

 

13. Upper Tribunal Judge Wikeley gave the appellant permission to appeal on the 2^nd of July 2012. Given the potential ramifications of the appeal for the street homeless, he asked the Secretary of State for Work and Pensions if he wished to be joined as a party to the appeal to the Upper Tribunal. The Secretary of State responded positively to this request and became the First Respondent to the appeal (so as to enable both the Council and the appellant to respond to the Secretary of State’s submissions). 

 

14. Judge Wikeley gave permission to appeal on two main grounds. The first related to the tribunal’s reliance on the day shelter and the showers being a ¼ of a mile away as showing that the night shelter was not a dwelling that the appellant (could) occupy as his home, as he would  need, so to speak, to “go out” to have a shower.  Judge Wikeley referred to the washbasins in the night shelter and, on the basis of the House of Lord’s decision in Uratemp Ventures Ltd –v- Collins [2001] UKHL 43; [2002] 1 AC 301, questioned whether a “dwelling” needed to have shower facilities, particularly where (admittedly rudimentary) washing may have been possible in the sink facilities at the night shelter.  Secondly, he questioned whether the tribunal’s focus on security of tenure, in the context where charges for mere permissions to occupy may attract housing benefit, may have led it into error.

 

The parties’ submissions

 

15. I hope I do not do the parties a disservice if I merely summarise their respective arguments on the appeal.

 

16. The Secretary of State’s case was that the night shelter in this case was not the dwelling that the appellant occupied as his home. Although the definition of “dwelling” in section 137 SSCBA 1992 was very broad (relying on R(H)5/09), the fact that at most the appellant had security of tenure as a licensee for one night, that Lord Bingham had indicated in paragraph [12] of Uratemp that sleeping in premises may not be enough to make them a dwelling-house and that in Uratemp  at paragraph [3] dwelling was said to be a familiar English word which “connotes a place where one lives, regarding and treating it as a home” (per Lord Irvine of Lairg L.C.), all made it unlikely that an objective observer would regard the night-shelter as a “dwelling”.  Furthermore, when considering whether the night shelter was a “dwelling which [the appellant] occupies as his home”, consideration had to be given to that statutory phrase as a whole as the word “dwelling” was inseparable in the housing benefit context from occupation as the claimant’s home. And from that perspective the fact that (a) the night shelter was not open to inhabitants from 8am to 8pm, (b) it was only open for part of the year, (c) the appellant had no guarantee that he could stay at the night shelter on any given night, (d) he could not leave his clothes and personal possessions there during the day, (e) he had no furniture in the shelter that he could regard as provided for  his exclusive use, and (f) he could be allocated a different bed on each visit, cumulatively pointed to the night shelter not being a dwelling he was occupying as his home.  Reliance was also placed on CH/318/2005. The Secretary of State ended by saying that this appeal was not about the street homeless and their entitlement to housing benefit generally and was limited to the particular facts of this case. 

 

17. The Council submitted that although the tribunal had “put the cart before the horse” (by deciding whether the night shelter was a hostel before deciding whether the appellant occupied a dwelling as his home), this defect in the tribunal’s approach was not material to its decision overall. Its view was that the tribunal had been correct in concluding that at the times of the overnight stays at the night shelter the appellant was not occupying a dwelling as his home.  The Council agreed with the Secretary of State’s analysis that this was best approached by considering the phrase “dwelling….he occupies as his home” as a whole, and submitted that this involved consideration of the physical nature of the accommodation itself as well as the way in which the appellant used it. In this regard, security of tenure (or the lack of it) was a relevant consideration.  However regulation 7(1) and (2) of the Housing Benefit Regulations 2006 (the “HB Regs”) was not in play (and so the tribunal did not err in law in not referring to those provisions) because it was common ground between the parties that if the appellant occupied the night shelter as his home at any time it was the dwelling he normally occupied at that time (as he had nowhere else he was occupying). The words “normally occupied” was to ensure that, save for statutory exceptions, a claimant may only receive housing benefit on one home at a time.

 

18. The appellant, through Mr Chris Smith, referred to his earlier submissions and made, if I may call it this, the social policy point that in an ideal world no one would be forced to live in such low standard accommodation as a night shelter.  He argued that the short term nature of the project was an irrelevant consideration, as accommodation was often let out on a short term basis. Further, security of tenure was a “two way process” as the short term commitment (of a one night stay) represented as much as most residents of the shelter could meet.  If a longer term commitment was required by claimants then a number of needy people would be denied benefit and, in consequence, the ability to pay for a one night stay in a night shelter.  He conceded that the conditions in the night shelter were not ideal, but residents had access to cooked meals as well as a bed and security for the night.  If following CH/318/2005 a tent could be a “dwelling”, so too ought the night shelter.  Mr Smith then referred to an allegation that housing benefit was being met by the Council in respect of bed and breakfast accommodation were the clients were asked to leave in the morning and not return until 5pm in the evening and where they did not have access to a kitchen. Mr Smith does not say what his point is here. I assume that he is arguing for equivalence (crudely put, if housing benefit could be awarded in those circumstances then it should also have been awarded to the appellant).

 

19. In relation to his earlier submissions made to the Council and the tribunal, Mr Smith had also argued: (a) the word “home” has no single definition, and so care should be taken in draw up a list of characteristics that a place must have before it is a home for housing benefit purposes; (b) a person can be classed as homeless under the relevant homeless persons legislation but still have a roof over his or her head; (c) in the past, under the supplementary benefits scheme, benefit was paid for the accommodation costs of people in homeless hostels, and hostels are treated as a home for housing benefit purposes: (d) relying on the words “whenever I lay my hat ..that’s my home” in the song by Marvin Gaye, the one night stays in the hostel were merely reflective of the typical residents inability to make a commitment beyond one night; (e) the word ‘accommodation’ in social security legislation was not defined but the Department for Work and Pensions guide for its decision makers advised, at 24159, that the site of the accommodation could alter from day to day; (f) the key issue is where someone sleeps, and (g) regulations 7(6)(a) of 76(3) of the HB Regs provided support for the argument that the occupation may be for a temporary period and for 24 hours only.

Upper Tribunal’s Decision

  

20. The appeal has been passed to me for decision by Judge Wikeley. None of the parties has sought a hearing of this appeal to the Upper Tribunal and I am satisfied, in any event, that the appeal can be decided without a hearing.

 

21. In my judgment, the decision of the tribunal was erroneous in law in at least one material respect and has to be set aside.  Having set aside the tribunal’s decision I have gone on below to make the decision on the first instance appeal (as I am entitled to do under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007), but that decision does not benefit the appellant as it is to the same effect as the decision of the tribunal below.

 

Error of Law - hostel is a dwelling

 

22. The key error of law in the tribunal’s decision was its approach to deciding first whether the night shelter was a “hostel”. It did this because of its view that if the night shelter was a hostel it was a “dwelling” for the purposes of the housing benefit scheme (see quote in paragraph 12 above).  That view is wrong as a matter of law. There is nothing in the enabling Act (the SSCBA) or the HB Regs that deems a hostel to be a dwelling for the purposes of the Act or the HB Regs. 

 

23. The word “hostel” does not appear in the relevant part (Part VII) of the SSCBA and, unsurprisingly, is not defined in section 137 of the SSCBA. Moreover, the definition of “dwelling” in s.137(1) of the SSCBA makes no reference to hostel: what it says is that a ‘“dwelling” means any residential accommodation, whether or not consisting of the whole or part of a building and whether or not containing separate and self-contained premises’.

 

24 “[H]ostel” is defined in regulation 2(1) of the HB Regs as meaning “a building…in which there is provided for persons generally or for a class of person domestic accommodation, otherwise than in separate and self-contained premises. And either board or facilities for the preparation of food adequate to the needs of those persons, or both….” (my underlining added for emphasis). That describes what a hostel is, for purposes relevant elsewhere in the HB Regs, but it does not say that a hostel is, as a matter of law, a dwelling[2].  And the use of the word “hostel” elsewhere in the HB Regs does not define it as being a dwelling. Thus, regulation 4(1) of the HB Regs (dealing with the disapplication of the requirement that a claim for housing benefit be accompanied with a person’s national insurance number), refers to a “dwelling which is a hostel”, which is not the same as saying a hostel is a dwelling. And regulation 13C(5)(d)(ii)  of the HB Regs exempts rent payable in relation to a hostel from the local housing allowance rules, but it does not deem that a hostel is a dwelling for housing benefit purposes. All it is setting out is that if the hostel is a dwelling (and thus covered by the housing benefit scheme) then the rent payable in respect of it is exempt from the local housing allowance rules.

 

25. A hostel may be a dwelling and indeed a person may occupy a dwelling in a hostel, but neither of these means that a hostel is a dwelling, less so that a hostel has to be treated as a dwelling for the purposes of the housing benefit scheme.  Accordingly, when the tribunal said that the HB Regs “specifically provide that a hostel as defined therein is a dwelling for the purposes of a claim” and that the “night shelter is a hostel and, therefore, a dwelling for the purposes of a claim to housing benefit”, it erred in law. Moreover, that error of law was, in my judgment, material because it led the tribunal not to focus on whether what the appellant was occupying was a dwelling and also led it not to consider the overall (and, as I consider, correct) question, of whether the night shelter was a “dwelling that the appellant occupied as his home”.

 

26. Somewhat confusingly, the tribunal does later in its reasoning seem to row back from its earlier analysis of the law by saying (a) that the distance of ¼ of a mile to the showers at the day centre meant that it and the night shelter could not be seen as one unit for the purposes of defining the ‘dwelling’ for housing benefit purposes, and (b) that the night shelter should not be seen as one dwelling.  In so far as this reasoning contradicts its earlier analysis, that conflict in the reasoning of itself renders the tribunal’s decision erroneous in law. Attempting to square the circle, however, it would seem that what the tribunal may have been meaning was because the hostel (which on its analysis was a dwelling) did not have any showers, the appellant was not occupying that dwelling as his home because it did not have any showers (as showers were integral to it being occupied as a home). If this attempt at explaining the reasons is wrong, however, it merely acts to highlight in my judgment the confusing nature of the reasons given. If the attempt at explanation is correct, however, it has at its base the tribunal’s legally wrong view that the hostel in and of itself was the dwelling.

 

Other errors of law ?

 

27. The error(s) of law identified above make it unnecessary for me to consider in depth the other potential legal errors identified by Judge Wikeley when he gave permission to appeal. 

 

28.  The confusion in the reasoning highlighted in paragraph 26 above makes it difficult to judge whether the tribunal erred in law in holding that the lack of showers was a key factor that took the night shelter out of the definition of “dwelling. If the tribunal decided that the night shelter was a dwelling (because it was a hostel) but that it was not capable of being occupied as a home because it did not have showers, in which case the Uratemp authority (even if applicable – see paragraph 40 below) is less obviously relevant as it does not go to the meaning of “occupies as his home”.

 

29. Judge Wikeley also asked when giving permission to appeal whether the tribunal may have erred in law in not referring to regulation 7(1) an (2) of the HB Regs, and pointed out that normal occupation is not the same as permanent occupation.  However, given the view of the Council on this as referred to at the end of paragraph 17 above, and given the reported commissioner’s decision in R(H)9/05 to the effect that the word “normally” in (what is now) regulation 7(1) of the HB Regs is being used in this context “to deal with the case where there is more than one possible dwelling which might be treated as the claimant’s home, and is not directed to any question of length of occupation”, I do not consider the tribunal erred in law in not referring to regulation 7 of the HB Regs. 

 

30. The other possible error of law suggested by Judge Wikeley was whether the tribunal erred in law in focusing too narrowly on the issue of security of tenure when deciding whether the appellant was occupying a dwelling as his home.  However, I do not consider the tribunal erred in law in this respect.  I agree that had the tribunal focused only on security tenure – in the landlord/tenant sense of that phrase – when it decided whether the appellant was occupying (the night shelter as) a dwelling as his home it would have erred in law. Regulation 12 of the HB Regs is ample authority for the proposition that a person need not be a tenant of the dwelling he occupies in order to be entitled to housing benefit.  However, I do not consider the tribunal was focusing on security of tenure in this landlord/tenant sense when it made its decision. What it in fact was concerned with was whether the occupation for one night had at least a minimal degree of security of occupation or tenure (para. 26 of the statement of reasons), or security of accommodation (para. 27), such that even a hotel booking of one night might be sufficient: so security of tenure was not the only, or key, consideration. The tribunal decided that having “no certainty of being accommodated” and “no certainty a bed would be available” were relevant factors in deciding whether the appellant was occupying a dwelling as his home, and I consider it was correct to do so. 

 

31. Without wishing to add to the language used in section 130(1)(a) of the SSCBA, or confuse matters by suggesting some additional legal test,  it seems to me that whether a person has a right to stay in a place for one night, or the ability to control his staying in that place for one night, is a relevant factor for the decision maker to consider when deciding whether the place is a dwelling the person is occupying as his or her home.  That seems to be the point Commissioner (as he then was) Jacobs was making in paragraph 17 of CH/318/2005 when, in the context of accommodation that was temporary or merely transitory, he said; “[t]he fact that a claimant’s occupation is limited in duration or uncertain in its tenure may be relevant to the issue whether it is that claimant’s home”. And that, I consider, was all the tribunal was doing here.

 

Was the night shelter a “dwelling occupie[d] as the appellant’s home”?

 

33. Having found that the tribunal made a material error of law in coming to its decision, and having set aside its decision under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, section 12(2)(b) of that Act requires me to either remit the appeal to the First-tier Tribunal for it to be decided there or decide it myself. As there is no dispute as to the essential facts I can see no benefit (and only an additional time burden) in remitting the appeal for decision by the First-tier Tribunal. I therefore am re-deciding the appeal.

 

Relevant facts

 

34. The facts as found by the tribunal are set out in paragraph 11 above. These, as I have said, and am satisfied about, were not disputed. They are in my judgment the key relevant facts.  Although I have set aside the tribunal’s decision for a flawed approach to the correct statutory test, I do not consider that its application of this flawed approach led it not to take account of or find any relevant facts. I therefore consider I can rely safely on the tribunal’s findings of fact in making my decision.

 

35. Most of those findings are put accurately in note form in paragraph 7 of the Secretary of State’s submission on this appeal. Taking those findings and adding other findings that arise from the evidence or what the tribunal found, the relevant findings of fact are:

 

• the shelter was not open to the appellant (if he had obtained a place to stay there)  between 8am to 8pm,

 

• it was only open for part of the year,

 

• the appellant had no guaranteed place for the night (in the sense that if the night shelter happened to be full, he would have been turned away (though this in fact had never happened),

 

• the appellant could not leave his clothes or personal possession in the night shelter during the day,

 

• the men slept in one, 8 bed dormitory room,

 

• save for the bed and bedside locker and chair, the appellant did not have any furniture that was provided for his exclusive use, and even with the bed he was entitled only to a bed when/if he got into the night shelter and not any particular bed,

 

• the night shelter had limited, and communal, facilities for heating food and washing, and

 

• showers (for the exclusive use of those staying at the night shelter), were ¼ of a mile away.

 

Applying the law to these facts

 

36. How then to approach these facts?  I accept, as the Council itself argued and as Judge Wikeley suggested, that I should seek to give a liberal interpretation to the relevant legislation consistent with the housing benefits scheme (a) giving help with housing costs to those on low incomes (and sometimes, as here, the very vulnerable), and (b) covering a wide variety of places occupied (per regulation 12(1) of the HB Regs): and see, similarly, paragraph [33] of the Court of Appeal’s analysis in Miah. To that extent the social policy considerations that Mr Smith relies on very heavily for the appellant are helpful. However, this only takes the inquiry so far: the words used in the statutory scheme must still be given their appropriate meaning within the statutory context in which they appear. After all if Parliament had intended that anyone charged for sleeping anywhere for the night would qualify for housing benefit then it could have said so.

 

37. There is no direct case-law on whether a night shelter constitutes a dwelling a person occupies as his home for housing benefit purposes.  The nearest decided case – ex parte Bowers (see below) - arose in the context of local authorities’ duties to house homeless people and the meaning of accommodation. CH/318/2005 was about a narrow boat, Miah and R(H)3/05 are both about whether the “dwelling” can extend across two sites (the sites all being houses and flats in the traditional sense), and Uratemp was about the phrase “dwelling-house.. let as a separate dwelling” in section 1 of the Housing Act 19098 and whether a room with no cooking facilities in it was a dwelling.

 

38. The starting point is the actual words used in the legislation.  Looking at the words used in section 130(1)(a) of the SSCBA, I am doubtful whether breaking them down into constituent parts is any real aid to construing their true meaning. A fully furnished house with all amenities will not fall within section 130(1)(a) if no-one occupies it or it is only used by someone to have lunch at.  On the other hand, the section will not cover a cardboard box in a doorway however much someone may consider it to be their home: revealing the limitations in the “wherever I lay my hat, that’s my home” thesis (though, in fairness to Mr Smith, he did not seek to make this argument). I therefore respectfully agree with Commissioner Jacobs in R(H)5/09 where he said (at paragraph 11) that “[the word] ‘dwelling’… in the housing benefit context…is inseparable from occupation as the claimant’s home”

 

39. Given this reasoning it may be said that decision in Miah does not assist.  However, although the Court of Appeal in Miah was concerned with whether two houses could count as one “dwelling” under the relevant jobseeker’s allowance regulations there in issue, it is important to note that the court depended for its analysis in locating the word “dwelling” within the whole statutory phrase “dwelling occupied as the home” in regulation 1(3) of the Jobseeker’s Allowance Regulations 1996 (the “JSA Regs”) (see paragraph [26] of Miah).  That led the Court of Appeal to adopt a functional test of “Is this a place serving as a home for the claimant? (paragraph [26] of Miah); with such a place being a place where the person lives, eats, sleeps, bathes, relaxes, and enjoys with his family (paragraph [32] of Miah).  Based on this, and R(H)5/09, I would accept that the phrase “dwelling…which he occupies as his home” need not be confined to one physical building or particular place. However, I can see no good reason why the approach adopted by the Court of Appeal in Miah ought not to apply more generally given the virtually identical wording in regulation 1(3) of the JSA Regs and section 130(1) of the SSCBA 1992.  Nor do I read R(H)5/09 as arguing otherwise.

 

40. Thus, if the only factor counting against the appellant was the fact that the showers were a ¼ of a mile away in the day centre, I would discount this.  On the functional test the showers could fall to be taken into account, but only as long as they formed part of the dwelling occupied by the appellant as his home.

 

41. On this analysis it is unnecessary to consider the views of the House of Lords in Uratemp, and what it considered was meant by the word “dwelling” in the context of section 1 of the Housing Act 1988 and the protections from eviction that Act sought to afford to tenants of a “dwelling-house”, so as to decide whether showers were needed in the night shelter to make it a “dwelling”. 

 

42.  However, even taking account of the different statutory wording and context which Uratemp was concerned with, the general comments of the House of Lords as to what is meant by the word ‘dwelling’ are, in my judgment, relevant to the issue I have to decide.  As noted earlier,  Lord Irvine of Lairg said the word was not a term of art but a familiar word in the English language, which in the Housing Act 1988 “connotes a place where one lives, regarding and treating it as home” (para. [3]; and Lord Millet said the words “dwell” and “dwelling” “mean the same as “inhabit” and “habitation” or more precisely “abide” and “abode”, and refer to the place where one lives and makes one’s home.  They suggest a greater degree of settled occupation than “reside” and “residence”, connoting the place where the occupier habitually sleeps and usually eats…” (para. [30]) and “[i]n both ordinary and literary usage, residential accommodation is a “dwelling” if it is the occupier’s home….It is the place where he lives and to which he returns and which forms the centre of his existence” (para. [31]).

 

43. Can any useful parallels or guidance be obtained from case-law on local authorities’ duties in respect of housing those who are homeless? For example, if the appellant qualified for housing benefit for the night shelter would that mean he was not homeless while staying there?  The short answer is, “No, not necessarily”.  The relevant legislations can overlap and are not mutually exclusive: CH/318/2005 at paragraphs [21] and [22]. To use the example used by the Commissioner in CH/318/2005, a person who loses her home due to domestic violence may be homeless and at the same time qualify for housing benefit in respect of the temporary accommodation she has been placed in. In addition, the homelessness legislation uses the (perhaps more basic) word “accommodation” rather than “dwelling”. Having said all of this, I have noted that in R-v- Waveney District Council, Ex parte Bowers, The Times, 25 May 1982, it was held that a night shelter where a person was given a bed if one was available but turned out during the day was not “accommodation” under the Housing (Homeless Persons) Act 1977.

 

44. It is also worth repeating Commissioner Jacobs’ comment, with which I agree, in paragraph 17 of CH/318/2005 that “[t]he fact that a claimant’s occupation is limited in duration or uncertain in its tenure may be relevant to the issue whether it is that claimant’s home”.

 

45. Returning then to the facts, in my judgment they do not, on balance, support the conclusion that the night shelter was a dwelling that the appellant was occupying at the relevant time as his home.

 

46. I will assume in the appellant’s favour that the showers at the day centre did form part of the dwelling occupied as the home in the one home split over two sites sense set out in Miah.  Had that issue been critical, however, further fact finding may have been necessary as to the basis on which the appellant could have accessed the showers (e.g. were they for the exclusive use of the night shelter users or for the use more generally of those visiting or attending the day centre?).  Moreover, I accept that the rudimentary facilities available at the night shelter (and day centre), taken on their own, would not act to take the case out of section 130(1)(a) of the SSCBA.  In addition, the definition of “hostel” in regulation 2(1) of the HB Regs may indicate that dormitory style accommodation is at least capable of coming within section 130(1)(a) of the SSCBA.

 

47. However the factors (or factor - as both overlap to a considerable extent) which in my judgment count decisively against the appellant are (a) the very transient nature of his stays at the hostel, and (b) the lack of any right of occupancy beyond the 12 hours he was allowed to be there overnight. At most, once in the night shelter the appellant had a licence to stay there (subject to his abiding by conditions as to his behaviour) limited to the 12 hours between 8pm and 8am. After those hours he had to leave, he had no right to return to the shelter in the day to rest or shelter from the weather, and he could not leave any personal possessions at the shelter during the day.  On this basis I cannot see how it can be said that that he was occupying a dwelling as his home even for the 24 hour period of one day within which he stayed at the night shelter for the night time. What is missing is any connection with the night shelter, or using it as a base or home, during the day: the function of it being a place where he lived, ate, slept, bathed, relaxed and enjoyed as described in Miah. In addition, the appellant had no right to stay in the dwelling on the following or any given night (and so had not right to occupy it as a home). His ability to do so was dependent entirely on whether the shelter was full or not.  That lack of any certainty or right to stay (even if only on subsequent nights) is not in my judgment consistent with the appellant occupying a dwelling as his home.

 

48. This is not to say that very short stays in accommodation cannot fall within section 130(1)(a) of the SSCBA and qualify for housing benefit. The person forced to stay in bed and breakfast accommodation or emergency council accommodation for a few days or weeks due to a flood or domestic violence may well be occupying that accommodation as his or her home even for the short period they are there (as they will have a right to remain in that (or some other) accommodation for the temporary period and will be able to use the accommodation as their home); and they may, subject to regulation 7 of the HB Regs, qualify for housing benefit for any ‘rent’ charged for that accommodation. But, on the facts of this case, the appellant was neither occupying the night shelter as his home (in the Miah sense above), nor did he have any right to occupy it as a home.

 

59. I have addressed a number of Mr Smith’s arguments for the appellant in the course of my reasoning. I merely add the following, short comments.  CH/318/2005 was not about a tent. In any event each case has to be approached on its own individual facts.  Whether housing benefit was being paid out properly by the Council in respect of the bed and breakfast accommodation elsewhere in the town is not something I can rule on, and I do not have all the facts relating to the basis on which people were staying at that accommodation.  Where someone sleeps is an important, but not the decisive, factor in whether a person is occupying a dwelling as his home (see Miah).  Lastly, in so far as regulations 7(6)(a) and 76(3) of the HB  Regs are relevant, I have accepted that occupation may be for a temporary period.  But neither of these regulations refer to 24 hours. More importantly, what is key is whether the occupation is as his home.

Conclusion

 

50. It is for the reasons given above that the appeal ultimately fails. 

 

 

 

 (Signed) S. M. Wright

Judge of the Upper Tribunal

 

Dated 6^th February 2013