IN THE UPPER TRIBUNAL Case No. CH/249/2014
ADMINISTRATIVE APPEALS CHAMBER
Decision: The appeal is dismissed.
REASONS FOR DECISION
1. The claimant is a tenant of his home and is in receipt of housing benefit. He is 79 years old and lives alone. He has been in dispute with his landlord as to the extent of the service charges which the landlord was entitled to charge him, but has never, so far as appears from the file, challenged the service charges at the appropriate tribunal. Instead he simply withheld (out of the housing benefit that had been paid to him) that part of the service charge which he considered should not be paid. He then sought to challenge the landlord's entitlement to that part of the service charge in county court possession proceedings in 2011 but was unsuccessful. As a result a possession order was made against him (file, p.21) which the landlord has threatened to enforce if there are further arrears. Despite this the claimant has made it plain that if the housing benefit is paid directly to him, he will withhold payment of those parts of the service charge which he challenges. The issues were also canvassed before a tribunal in July 2012, when the issues between the claimant and the council were as to what parts of the service charge should be included as eligible for housing benefit, resulting in a decision that the disputed amount was payable by the council, not as part of the housing benefit, but as part of a separate subsidy (file, p.29)
2. Under regulation 96(1)(b) of the Housing Benefit Regulations 2006 (the Regulations), the council can make payment of rent directly to the landlord without the tenant's consent where "payment to the landlord is in the interest of the claimant and his family". The council here decided that it should make the payments directly to the landlord on this basis and this decision has been made the subject of the appeal to the tribunal by the tenant, the claimant, who contends that the money is not due and asserted repeatedly before the tribunal that if the money was paid to him he would not pay the disputed part to the landlord. The tribunal upheld the decision of the council , although it did get wrong the number of the relevant regulation.
3. The council made the decision to pay the landlord direct because it considered, with obvious justification, that any failure to pay the rent was likely to result (the council states that it would result) in the immediate referral of the possession order to the bailiffs to eject the claimant from his home.
4. In giving permission to appeal a district tribunal judge questioned whether regulation 96(1)(b) could assist the claimant if he had no family living with him in view of the reference in that regulation to "the claimant and his family". A question was also raised as to who was included in "family" and whether it included family who did not live at the claimant's property.
5. Regulation 2(1) of the Regulations provides that "family" has the meaning assigned to it by section 137(1) of the Social Security Contributions and Benefits Act 1992. That section provides that unless the context otherwise requires "family" means (a) a couple; (b) a couple and certain other members of the same household; and (c) in prescribed circumstances a person who is not a member of a couple and prescribed members of the same household for whom the first person is responsible. "Couple" is defined by the same section to include married couples and civil partners who are members of the same household and two people who are not married or civil partners but are living together as if they were one of these.
6. If a claimant was living with his wife and no children or other dependants, they would together be a family for this purpose under this definition. However, where, as in regulation 96(1)(b) there is a reference to the claimant and his family, I do not see how the context can support the statutory definition in section 137(1). Most of the references to "family" include a claimant as part of the family and the definition applies but where as here they are separate, it appears to me that the context requires a different meaning for the word family which excludes the claimant. I see no need for the meaning of "family" in those circumstances to extend beyond the members of the claimant's family other than the claimant, as family is defined in section 137(1), so that there is no need to investigate whether a claimant has relatives living elsewhere and what their interests might require.
7. Nor does it appear to me to be necessary that the claimant has to have a family living with him in his household before regulation 96(1)(b) can be invoked. I can see nothing to suggest that such a meaning was intended. Such a meaning would exclude from consideration, for example, a tenant living alone and suffering from mild dementia who had not consented but who could not be relied on to remember to pay the rent, or one who was in debt and whose bank account had been the subject of a third party debt order which would lead to the benefit, if normally paid by bank transfer, being paid out to the judgment creditor, in each case leaving the tenant at risk of losing his home.
8. It appears to me that it is the clear intention of the regulation that where the claimant has no family the council could still make the payment direct to the landlord if that was in the interest of the claimant. That result can be achieved either by construing regulation 96(1)(b) so that "and" meant "or" in the context, or by construing it to mean the claimant and his family if any, or the claimant and any family living as members of the same household or as any other family as defined in section 137(1) of the 1992 Act. Any of these approaches lead to the result that where, as here, there is nobody else who counts as family, the council and the tribunal should consider only the interest of the claimant. I do not need to decide which construction should be adopted. I am satisfied that a construction must be adopted which produces the intended result where the claimant has no family.
9. In the present case the council and the tribunal concluded that payment of the rent allowance to the landlord was in the interest of this 79 year old claimant on the basis that his dispute with the landlord had already been resolved by the earlier decision of the county court, and that his determination to continue to withhold part of the rent when he had a possession order already made against him was irrational and would be likely to result in his being made homeless in circumstances in which there would be no duty to rehouse him. In my judgment this entitles them to conclude that it is in the interest of the claimant that the rent allowance should be paid to the landlord direct to avoid the consequences of that irrational conduct.
10. Strictly, this only applies to the rent allowance and not to the subsidy being administered by the council on behalf of the county council. What the council can do with that subsidy is, as a result of the previous tribunal decision, not a question to be determined by reference to the Regulations as it is not part of the claimant's housing benefit. If, however, it is paid to the council for the specific purpose of paying a particular charge to the landlord, and if, as here, the claimant has expressed the intention to misuse it and apply it for some other purpose, then it appears to me that the council is entitled to ensure that it is used for the purpose for which it was paid by paying it direct to the landlord. At the very least, there is no evidence before me to show that the claimant is entitled to have that money paid directly to him in respect of a liability which he claims not to have and for which he does not intend to use the payment.
11. The appeal is therefore dismissed.
(signed) Michael Mark
Judge of the Upper Tribunal
22 May 2014