Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CPC/2412/2013 

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  I set aside the decision of the tribunal but substitute my own decision dismissing the appeal of the claimant from the decision of a decision maker dated 17 February 2012 that, inter alia, the claimant was not entitled to an additional amount of pension credit in respect of housing costs until 22 December 2010.

REASONS FOR DECISION

1. This appeal is brought with the permission of the Tribunal Judge from a decision of the First-tier Tribunal confirming a decision of the Secretary of State made on 23 August 2011.  Despite the fact that the submissions made to him by both parties were on the basis that the decision being appealed was that made on 23 August 2011, it is plain for the reasons given by Judge Poynter in his Direction dated 13 December 2013 that (1) the decision given on 23 August 2011 was a decision revising an earlier decision of 30 June 2011; (2) the revised decision of 30 June 2011 was successfully appealed by the claimant to the tribunal, which had decided on 21 January 2012 that the claimant was entitled to state pension credit from 27 August 2008 and had directed the Secretary of State to re-assess the claimant’s entitlement from that date.

2. There followed an award dated 17 February 2012 in which it was determined that the claimant was not entitled to housing costs until 22 December 2010.  It was that appeal which was before the tribunal despite the fact that there was no copy of the decision on the file.  Judge Poynter was concerned that if, as the tribunal found, the claimant did not normally occupy the relevant property as his home, its capital value should have been taken into account in assessing his entitlement to state pension credit.  Now that a copy of the decision has been provided, it can be seen that the capital value was considered, but that it was decided that the amounts secured by mortgage on the property exceeded its value so that it was in negative equity and there was no capital value for state pension credit purposes.

3. The tribunal was in error of law in failing, with assistance from the decision maker, to identify the correct decision under appeal and its decision purports to confirm the revising decision of 23 August 2011.  I therefore set it aside.

4. It appears to me that this is a case in which I can substitute my own decision for that of the tribunal.  The facts are not in dispute in any significant way.  The claimant and his wife had acquired the property, a flat in Bournemouth, in 2001 with the aid of a mortgage.  They lived there, but by 2007 they were having financial problems.  They could not afford to pay council tax.  They had two daughters.  One was a student and the other owned two properties about (as it would appear from a Google Maps search) 2.4 and 3.6 miles from their own property.  Between some point in 2007 (the tribunal found that it was December 2007) and 22 December 2010 they were living in one or other of the second daughter’s properties, and only returned to live at their own property on 22 December 2010. 

5. The first daughter, the student, continued to live at that property and she claimed and obtained exemption from council tax on the basis that the property was occupied by students only.  It had been the objective of the claimant in going to live elsewhere that exemption from council tax should be obtained.  As Judge Poynter explained in his Direction, that exemption could only be obtained if the claimant and his wife were not resident at the property.  This meant that neither could have had their only or main residence there. 

6. The exemption from council tax continued to be sought and granted until the claimant and his wife returned to the property on 22 December 2010.  They would pay visits to their property in the 3 years between December 2007 and December 2010, and their evidence was that they would return for weekends for a change of scene and to enjoy the better living conditions there.  In addition there was a 3 months period in June, July and August 2009, when their daughter was ill and, for about 50% of that time, one or other of them would stay overnight at the flat to care for her.

7. The claimant’s solicitors have referred me to the recent decision in R (on the application of Walford) v Worcestershire County Council [2014] EWHC 234 (Admin) as to the meaning of “home” in the National Assistance (Assessment of Resources) Regulations 1992.  The context there was that a lady had needed to be placed in a care home by a council and in assessing her ability to pay the cost property owned by residents was to be disregarded where it was occupied in whole or in part as their home by a relative of the resident aged 60 or over.  In paragraph 51 of his decision, Supperstone J states

“In my judgment “home” should be construed as “only or main home”.  This interpretation, in my view, accords with the statutory purpose of the legislation.  Home is a place to which a person has a degree of attachment both physical and emotional.  The test as to whether a person occupies premises as their home is both qualitative and quantitative”.

8. This is not a case of a person occupying two properties as a single home nor is it a case of a student being away during term time nor was it a case where a claimant stayed overnight each night at an elderly parent’s house to care for them, as was the case in decisions cited to me in relation to entitlement to housing benefit and income support.  Nor does the 3 months period when the daughter living in the property was ill assist.  Further, the overnight stays at the property occurred because the daughter was sick and needed help at her home, not because it was the claimant’s home.  Similar observations apply to visits to the property to see their daughter.  Even the weekend breaks suggest no more than that the property was regarded as a recourse which could be used to a limited extent so long as it did not affect liability to council tax.

9. It is plain, and I so find, that the property was not their sole or main residence between about December 2007 and 22 December 2010. 

10. The question in respect of entitlement to pension credit in respect of interest payments on the mortgage is whether the secured loan was taken out to acquire an interest in the dwelling occupied as the home, or for certain repairs and improvements to that dwelling, or to pay off another loan taken out for one or more of those purposes (see para.11, Schedule II to the State Pension Credit Regulations 2002 (“the Regulations”).  I summarise the effect of those paragraphs rather crudely because the real question in this case is whether between June 2008 and December 2010 the property was the dwelling occupied by the claimant as his home. 

11. “The dwelling occupied as the home” is defined by regulation 1(2) of the Regulations as meaning the dwelling normally occupied by the claimant as his home.  In CH/1786/2005, it was held, in the context of a housing benefit claim, that there was a single question to be determined “of what dwelling an individual is currently normally occupying as his or her home”.  Further “normally occupied” is a less demanding test than “permanently occupied” (CH/1085/2002; and see MM V SSWP, [2012] UKUT 358 (AAC), where it is pointed out that “normally reside” is not necessarily the quite the same as “normally occupy … as his home”).  The question for decision therefore is whether the claimant normally occupied the property as his home during the relevant period.

12. That, however, is not the end of the matter, because paragraph 1(1) of Schedule II to the Regulations provides that subject to the following provisions of Schedule II, the housing costs applicable to a claimant are those which he is liable to meet in respect of the dwelling occupied as the home which he or his partner is treated as occupying and which qualify under paragraphs 11 to 13 of the Schedule. 

13. Paragraph 4 of Schedule II sets out circumstances in which a person is to be treated as occupying a dwelling as his home.  Paragraph 4(1) sets out the general rule, subject to exceptions later in that paragraph, that “a person shall be treated as occupying as his home the dwelling normally occupied as his home by himself or, if he has a partner, by himself and his partner, and he shall not be treated as occupying any other dwelling as his home.” 

14. Paragraph 4 goes on to make provision for exceptions from this general rule to cover cases where a person has had to leave their home temporarily for a limited period, such as the need to repair the home or to go into hospital or he intends to return to occupy the dwelling as his home and the period of absence is unlikely to exceed 13 weeks. The provisions of paragraph 4 of Schedule II are plainly designed to limit the circumstances in which a person can claim that he is occupying a dwelling as his home for the purposes of paragraphs 11 and 12 of that Schedule.

15. It appears to me that paragraph 4 of Schedule II to the Regulations makes it clear that in general, for the purpose of entitlement to housing costs, a person is only occupying the dwelling normally occupied by him as his home if he is living there.  It also appears to me that the claimant was not living in the property between December 2007 and 22 December 2010.  Although he no doubt wanted to live there, financial constraints forced him to live elsewhere.  He was not therefore to be treated for the purpose of housing costs as occupying the dwelling as his home during that period, and is therefore precluded by paragraphs 1(1)(a) and 4(1) from obtaining any sum in respect of housing costs before 22 December 2010.

16. Even if I were free from the constraints imposed by paragraphs 1 and 4 of Schedule it appears to me that a person who chooses for financial reasons not to live in his usual home for a period of 3 years cannot say that during that period he normally occupies the property as his home.  Even as at 1 September 2008, the date from which pension credits have been awarded, he had lived away from the property for over 8 months and in my judgment cannot be treated as normally occupying it as his home at a time when he had elected not to live there indefinitely.

17. The appeal therefore fails except insofar as it is necessary to identify the correct decision under appeal and to deal with the additional point raised by Judge Poynter.  The outcome for the claimant is the same.  This is because in my judgment the claimant was not normally occupying the property as his home within the meaning of regulation 1(2) of the Regulations and because even if he were otherwise to be regarded as so occupying it, paragraph 4 of Schedule II to the Regulations would treat him as not so occupying it for the purpose of ascertaining entitlement to pension credit in respect of housing costs.

(signed on the original) Michael Mark

Judge of the Upper Tribunal

1 April 2014