Upper Tribunal (Administrative Appeals Chamber)

 

 

 

 

THE UPPER TRIBUNAL

 

ADMINISTRATIVE APPEALS CHAMBER

 

DECISION OF THE UPPER TRIBUNAL JUDGE

 

Before: A J CARMICHAEL QC

 

Attendances:

 

For the Appellant: Mr Robert Findlay, Welfare Rights Officer, Ferguslie Park Housing Association.

 

For the Respondent: Mr Peter Barker, Consultant, instructed by Renfrewshire Council.

 

The appeal against the decision of the First-tier Tribunal given at Glasgow on 16 October 2013 is refused.  It is dismissed.

 

 

REASONS FOR DECISION

 

 

1.         This appeal concerns the construction of regulations 76(2) and 80(3)(a) of the Housing Benefit Regulations 2006 (SI 2006/213).      

 

2.         The appellant’s tenancy began on 13 February 2013, a Wednesday.   There is no dispute that the first liability for rent arose on that date.   She claimed housing benefit on the same day.   She moved into the property on Friday 15 February 2013.  The benefit week is a period of seven consecutive days commencing on a Monday and ending on a Sunday, in terms of regulation 2.  The date of the appellant’s claim, the date of her first liability for rent, and the date of her first occupation of the property all occurred in the same benefit week.    There is no dispute that regulation 76(2) applies.

 

3.       Regulation 76(2) provides:

 

“Where a claimant is otherwise entitled to housing benefit and becomes liable, for the first, time, to make payments in respect of the dwelling which he occupies as his home in the benefit week in which his claim is made or is treated as made, he shall be so entitled from that benefit week.”

 

4.         Regulation 80(1) provides that a person’s entitlement to housing benefit in any benefit week is to be calculated in accordance with the provisions of regulation 80.

 

Regulation 80(3)(a) provides:

 

“In a case to which regulation 76(2) of (3) (date on which entitlement is to commence) applies, his eligible rent for the benefit week in which he becomes liable to make payments in respect of a dwelling which he occupies as his home shall be calculated by multiplying his daily rent by the number equal to the number of days in that benefit week for which he is liable to make such payments.”

5.         The respondent decided that the appellant was entitled to housing benefit from 15 February 2013.   The appellant contended that she was so entitled from 13 February 2013, and appealed.   Her appeal was refused by the First-tier Tribunal.

 

6.         The respondent maintains that the appellant is entitled to housing benefit only for the days when she occupied the property.   The appellant argues that her entitlement commenced from the point at which she became liable to make payments in respect of the property.

 

7.         Regulation 76(2) provides for an exception to the general rule in regulation 76(1) that a person is entitled to housing benefit from the benefit week following the date on which his claim is or is treated as made.   Where there is a new tenancy and where the starting date of the tenancy is in the same benefit week as the date of the claim, entitlement runs from that benefit week.   The dispute is as to the day in that benefit week on which entitlement commences where the claimant moves in after the day on which the first liability for rent occurs.

 

8.         The appellant accepts that by virtue of regulation 80(3)(a), she is not entitled to payment in respect of the whole of the benefit week in which she made her claim.  

 

9.         Regulation 80(3)(a) as in force between 6 March 2006 and 2 April 2006 was in the following terms:

 

“in a case to which regulation 76(2) applies (date on which entitlement is to commence), his eligible rent for the benefit week in which he becomes liable to make payments in respect of the dwelling which he occupies as his home shall be calculated by reference to the amount of eligible rent payable in respect of a week, whether or not his liability to make those payments relates to the whole of that benefit week.”

 

Its immediate predecessor, regulation 69(4) of the Housing Benefit (General) Regulations 1987, was in similar terms.    The relevant amendment of what is now regulation 80 was by virtue of paragraph 2(12) of the Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) (No.3) Regulations (SI 2005/2502).  Those latter regulations were themselves amended by the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217.

 

10.       The amendment which took effect from 3 April 2006 had the effect, where regulation 76(2) applied, of limiting entitlement to benefit to the days during the benefit week for which the claimant is liable to make “such payments”.

 

11.       The question, therefore, is as to the proper construction of “such payments”.   The respondent argues that the policy of the legislation is that entitlement to benefit depends upon occupation of a dwelling as the home of the claimant.   The respondent points to the language of regulation 80(3)(a) itself, the whole scheme of regulation 80(3) and to section 130 of the Social Security Contributions and Benefits Act 1992.  

 

12.       The respondent also supports its argument by reference to the terms of Circular HB/CTB A8/2006.   The terms of the circular are of persuasive value, although they cannot turn what has been enacted into what the department wishes had been enacted: JC v Secretary of State for Work and Pensions (ESA) [2014] UKUT 352 (AAC), at paragraph 13.   Mr Barker acknowledged as much in his oral submission.  The passages cited appear in a “Questions and Answers” section at Appendix A of the circular:

 

 

“Changes to the calculation of the eligible rent at the start of the claim

 

Q11     Can HB be awarded for a weekly rent liability from the Monday if a new claim is made in the benefit week in which the tenancy begins, irrespective of which day in that week the tenancy begins?

 

A11      The provisions of regulation 76(2) (working age) and 57(2) (pensioner) have not been amended which means that HB can still be awarded from the benefit week in which the tenancy started. However, the provisions of regulation 80(3)(a) (working age)/61(3)(a) (pensioner) have been amended so that irrespective of the rent payment frequency, for the first benefit week of the claim HB can only be awarded for the days the person is occupying the home and liable to pay rent. Therefore, if the tenancy began, for example, on the Thursday and the claimant moved in on the same day, the eligible rent for the first week would be four days of the daily rent.

 

Q12     If a new claim is made in the benefit week in which a new weekly liability begins and the tenancy starts on the Monday but the claimant does not move in until the Thursday, can HB still be awarded from the Monday?

 

A12      The provisions of regulation 76(2) (working age) and 57(2) (pensioner) have not been amended which means that HB can still be awarded from the benefit week in which the tenancy started. However, the provisions of regulation 80(3)(a) (working age)/61(3)(a) (pensioner) have been amended so that irrespective of the rent payment frequency, for the first benefit week of the claim HB can only be awarded for the days the person is occupying the home and liable to pay rent. Therefore, if the claimant did not move in until the Thursday, the eligible rent for the first week would be four days of the daily rent.”

 

13.       The appellant’s argument is that the requirement for occupation is met by virtue of occupation at any point during the benefit week in which liability for rent first occurs and during which the benefit claim is met.   Mr Findlay described regulation 76(2) as allowing a claimant to be treated as occupying the dwelling from the date when liability for payment arose.      It allowed a claimant leeway, he said, as to the date on which he moved in, providing that he moved in during the same benefit week in which liability first occurred and the claim was made.   The appellant also sought to derive support from the decision of the Court of Appeal in Secretary of State for Work and Pensions v Robinson and another [2004] EWCA Civ 342, reported as R(H) 4/04, at paragraph 21.

 

14.       I do not accept as correct the construction for which the appellant contends.

 

15.       The basic conditions for entitlement to housing benefit are set out in section 130 of the Social Security Contributions and Benefits Act 1992.   Section 130(1)(a) provides:

 

“130(1) A person is entitled to housing benefit if –

 

(a)        he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home”

 

Occupation of the dwelling in respect of which there is a liability to make payments is a condition of entitlement.  

 

 

 

 

 

16.       Regulation 7 makes provision for various situations in which a person who does not actually occupy a dwelling is to be treated as doing so.    Specific provision is made in regulation 7(8) for circumstances in which a person is to be treated as occupying a dwelling where there has been a delay in moving in.   In certain specified situations a person will be treated as occupying a dwelling in respect of which he is liable to make payments for a period not exceeding four weeks before he has moved in.   Absent, however, the circumstances specified in regulation 7(8), there will be no entitlement to housing benefit during a period between the point at which liability for payments commences and a later date of moving in.

 

17.       There is nothing in the language of regulation 76(2) to indicate an intention to treat an individual as occupying a dwelling when he has not actually been doing so.  The purpose of regulation 76(2) is simply to provide an exception from what would otherwise be the position in terms of regulation 76(1).

 

18.       Further, regulation 80(3)(a) must be read as a whole.   “Such payments” is in my view to be read as referring back to the words “payments in respect of a dwelling which he occupies as his home.”   That reading is consistent with the condition in section 130 of the 1992 Act.

 

19.       Regulation 80(3)(b) and (c) makes further provision for entitlement to benefit where there is a change of circumstances which occurs other than on a Monday (the first day of a benefit week).   Regulation 80(3)(b) provides for a change of circumstances of the type described in regulation 79(2A)(b).  Those changes of circumstances involve entitlement, or the ending of entitlement, to be treated as occupying two dwellings as his home.   In each case eligible rent is calculated by apportionment on a daily basis within the benefit week.     Similarly, under regulation 80(3)(c), where a claimant moves to a new dwelling occupied as the home and is not entitled to be treated as occupying two dwellings, eligible rent is calculated by apportionment on a daily basis.     Regulation 80(3)(a), (b) and (c) consistently provide for calculation of eligible rent on a daily basis, and based on actual occupation of a dwelling as the claimant’s home, or what is deemed to be occupation in accordance with the provisions of regulation 7.

 

20.       In my view the reference to Secretary of State for Work and Pensions v Robinson and another adds nothing to the appellant’s argument.  At issue in that case was whether the claimant’s circumstances permitted her to benefit from what was then regulation 65(2) of the 1987 Regulations, and is now regulation 76(2).    The Court of Appeal at paragraph 21 confirmed that regulation 65(2) applied only where there was coincidence of entitlement to benefit and liability to pay rent.   The appellant relied on the following passage:

 

“If, for example, Miss Robinson, taking her new tenancy on 11 March had been able to move in on 11 March, or even to move in the course of the next seven days, she would have been able then to obtain what she really wanted, that is to say housing benefit from the commencement of her new tenancy.   Regulation 65(2) gives new tenants coming into a new property and occupying their property their entitlement to housing benefit from the very beginning of their occupation.”

 

Although the Court of Appeal did not expressly refer to regulation 69(4) of the 1987 Regulations, it was by virtue of that provision read with regulation 65(2), and not by virtue of regulation 65(2) alone, that the claimant in that case would have been able to obtain benefit from the start of the tenancy, providing she moved in within the same benefit week.  Regulation 80(3) is, as mentioned above, in terms materially different from those of the former regulation 69(4).    The Court of Appeal was not concerned with the calculation of weekly amounts, but with whether regulation 65(2) was engaged at all on the facts of the case before it.   The passage cited does not provide support for the appellant’s submission.

21.       In summary, therefore, when regulation 76(2) applies, the entitlement to housing benefit in any benefit week is to be calculated in accordance with regulation 80(3)(a).   The expression “such payments” in regulation 80(3)(a) is to be construed as meaning the payments that the claimant is liable to make in respect of a dwelling which he occupies as his home.   That means that the claimant must have a liability to make payments, and that he must be occupying the home.   The respondent was therefore correct to decide that the appellant was entitled to housing benefit only from 15 February 2013.   The appeal is refused.          

 

 

 

 

 

 

 

                                                                  (Signed)

AILSA  J  CARMICHAEL  QC

Judge of the Upper Tribunal

Date: 13 August 2014