Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/1757/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed.

REASONS FOR DECISION

1.     This is an appeal with the permission of an Upper Tribunal Judge.  The claimant had been living with her 18 month old son in a room in a refuge, in respect of which she had been receiving housing benefit.  On 27 March 2012 she made a new claim for housing benefit in respect of a new address where she had taken a tenancy which had commenced the previous day.  She was unable to move immediately because she had no furniture.  She had applied for a social fund payment to enable her to buy furniture.  A grant was made, she purchased the furniture and she moved into the new property on 23 April 2012, which the tribunal found was the earliest opportunity to do so. 

2.     The council, by a decision dated 4 May 2012, only awarded her housing benefit in respect of the new property from the time she moved in there.  Meanwhile it had continued to pay housing benefit in respect of her room at the refuge until that time under the existing award.  The claimant appealed, contending by reference to regulation 7(8)(c)(ii) of the Housing Benefit Regulations 2006 that she was entitled to housing benefit in respect of that property for up to four weeks immediately before the date on which she moved in. 

3.     The council failed to attend the tribunal hearing and its written submissions were unusually brief.  The tribunal concluded that the claimant’s delay in moving into the new property was reasonable because she first needed to await the community care grant and obtain furniture with it before moving in with her child who was under 5 years of age at the time.

The statutory and regulatory provisions

4.     Section 130(1) of the Social Security Contributions and Benefits Act 1992 provides that a person is entitled to housing benefit if, amongst other requirements “(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home”.  Section 137(2)(h) provides that regulations may make provision for the purposes of that part of that Act as to circumstances in which a person is or is not to be treated as occupying a dwelling as his home.#

5.     Regulation 7(1) of the Housing Benefit Regulations 2006 (the 2006 Regulations) provides that

“Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home –

(a)   by himself or, if he is a member of a family, by himself and his family; or

(b)   if he is polygamously married, by himself, his partners and any child or young person for whom he or any young person for whom he or any partner of his is responsible and who is a member of the same household,

and shall not be treated as occupying any other dwelling as his home.”

6.     Regulation 7 goes on to make certain exceptions to this general rule.  For the purposes of this case it is only necessary to refer to regulation 7(6) and regulation 7(8).  Regulation 7(6) is, so far as relevant, as follows:

“(6) Where a person is liable to to make payments in respect of two (but not more than two) dwellings, he shall be treated as occupying both dwellings as his home only –

……….

(e) in a case where a person –

(i) is treated by virtue of paragraph 8 as occupying a dwelling as his home (“the new dwelling”) and subparagraph (c)(i) of that paragraph applies; and

(ii) he has occupied another dwelling as his home on any day within a period of 4 weeks immediately preceding the date he moved to the new dwelling

for a period not exceeding 4 benefit weeks immediately preceding the date on which he moved.”

7.     Regulation 7(8), so far as relevant provides

“(8) Where –

(a)   a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and

(b)   either –

(i)               that person had claimed housing benefit before moving in and either no decision has yet been made on that claim or it has been refused but a further claim has been made or treated as made within 4 weeks of the date on which the claimant moved into the new dwelling occupied as the home; or

(ii)              that person notified the move to the new dwelling as a change of circumstances under regulation 88 (duty to notify changes of circumstances) before the move, or the move to the new dwelling was otherwise notified before the move under that regulation; and

(c)   the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and –

(i)               that delay was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family; or

(ii)              the move was delayed pending the outcome of an application under Part 8 of the Act [i.e. the Social Security and Contributions Act 1992] for a social fund payment to meet a need arising out of the move or in connection with setting up the home in the dwelling and either a member of the claimant’s family is aged 5 or under or the claimant’s applicable amount includes a premium under paragraph 12, 14 or 16 of Schedule 3 or a component under paragraph 23 or 24 of that Schedule; or

(iii)            the claimant became liable to make payments in respect of the dwelling while he was a patient or in residential accommodation,

the person shall be treated as occupying the dwelling as his home for any period not exceeding 4 weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments.”

The contentions of the parties

8.     The council contends that this is not a case where the claimant is to be treated as occupying both the room in the refuge and the new dwelling as her home, because she does not fall within any of the exceptions to the general rule in regulation 7(6) which permit this.  In particular she does not fall within regulation 7(6)(e) because the delay in moving was not because the new dwelling needed to be adapted to meet disablement needs.  Further, while the claimant satisfied regulation 7(8)(c)(ii), that regulation did not provide for entitlement in respect of two dwellings and she was already receiving housing benefit in respect of her room.  Two cases are relied on by the council as supporting its contentions: CH/2201/2002 and R(H) 4/07.  The claimant rightly accepts that regulation 7(6)(e) cannot assist her, but contends that the tribunal was correct in deciding that she could rely on regulation 7(8)(c)(ii).

9.     On that basis, I am unable to see the relevance of R(H) 4/07, which was concerned with what amounted to adapting the dwelling to meet disablement needs for the purposes of regulation 7(8)(c)(i).  The question here is whether the claimant can rely on regulation 7(8)(c)(ii) despite the fact that even after the claim had been made in respect of the new dwelling the council continued to make payments under the old award in respect of the room at the refuge.

10. On that question, however, CH/2201/2002 is direct authority against the claimant which, had it been cited to the tribunal, should have led the tribunal, which was bound by it, to dismiss the claimant’s appeal.  The facts of that case are very similar to the present case in that benefit was being paid in respect of the property in which the claimant was living and the move to a new property was delayed because the claimant needed a grant to cover removal expenses.  The case was concerned with regulation 5(6)(c)(ii) of the Housing Benefit Regulations 1987, which was in similar terms, so far as they applied to the present case, to regulation 7(8)(c(ii) of the 2006 Regulations.  In rejecting the claimant’s contention that he was entitled to housing benefit in respect of the new home before he moved in, Mr. Commissioner Jacobs, as he then was, stated as follows in paragraph 9 of his decision:

“As I understand the argument put by the claimant’s representative, it is this. The local authority should supersede the award of housing benefit in respect of the council property, treating the resulting overpayment as caused by official error. That would allow it to award housing benefit in respect of the housing association property. The flaw in this argument is that the award of housing benefit in respect of the council property has not been superseded. And, so long as it remains, there is no power for the local authority to award housing benefit in respect of the housing association property for an overlapping period.”

11. Where the new rent for the new dwelling is larger than the rent for the existing dwelling, this produces, if correct, the surprising result that by virtue of an official error, which the claimant can do nothing about, the council can reduce its liability for housing benefit.  Housing benefit is expressly made payable in respect of the dwelling which the claimant occupies as his home.  The general rule in regulation 7(1) of the 2006 Regulations is that that dwelling is the one normally occupied by the claimant and his family as his home.  That, however, is expressly subject to the following provisions of regulation 7, and as it is accepted that regulation 7(8)(c)(ii) applies, for the period from Monday 26 March to Sunday 22 April 2012, both dates inclusive, a period of exactly four weeks immediately prior to the date on which the claimant moved into her new home, the claimant was entitled to housing benefit on the basis that that, and not the room in the refuge, was the dwelling she was occupying as her home for housing benefit purposes.

12. While it is plain that there was no entitlement to benefit in respect of both dwellings, I can see no basis for the statement in CH/2201/2002 that the council had no power to make a proper award because it had failed to terminate an earlier one.  If that were correct, it would follow that even if the claimant had moved home, but the council had in error failed to supersede the award in respect of the first home, so long as that error continued there would be no power to make an award in respect of the new home.  In my judgment the decision of Mr. Commissioner Jacobs was wrong in law and I decline to follow it.

13. Bearing in mind that when the initial application for housing benefit was made, it was unclear whether, and if so when, the grant would be obtained and whether the move would be completed within 4 weeks, the appropriate course for the council to have taken would have been to suspend benefit in respect of the room in the refuge until it became clear for what period that room was the relevant dwelling and for what period of up to 4 weeks the new dwelling would be the relevant dwelling for housing benefit purposes.  Had it done so, there would have been no overpayment under the original award, an overpayment which appears to have been the result of official error in circumstances in which it is likely to be irrecoverable.

(signed) Michael Mark

Judge of the Upper Tribunal

6 January 2014