Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CPC/4510/2014 

ADMINISTRATIVE APPEALS CHAMBER `   CPC/4514/2014

Before Judge Mark

Decision:  These appeals are dismissed.   

REASONS FOR DECISION

1. This appeal is brought with the permission of a District Tribunal Judge from a decision of the First-tier Tribunal allowing appeals by the claimant from two decisions of the Secretary of State said to be dated 1 December 2011 and 8 February 2012.  In fact the first decisions under appeal appears to have been  on 16 and 21 September 2012 and they were appealed by letter dated 13 October 2011 (p.2 of CPC/4510/2014) and to have been followed by a further entitlement decision dated 8 February 2012 which was appealed by letter of 21 February 2012.  None of the original decisions appear to be on the file, but it would appear that the earlier decisions only related to benefit from 15 March 2011 and not to any earlier period.  A decision dated 20 July 2012 revised the 21 September 2011 decision to cover the period from 1 August 2006 to 14 March 2011.  There is no copy of any decision of 8 February 2012 on the file.

2. An overpayment decision dated 1 December 2011 found that as a result of the decision dated 21 September 2011 there had been an overpayment of pension credit from 3 October 2006 to 26 September 2011 in the sum of £13,317.90.  The overpayment is said to have been the result of a failure by the claimant to disclose on 1 July 1997 or as soon as possible thereafter that her son had moved into her household.  As will appear, that decision shows a complete misunderstanding of the issues on this appeal.  There was then a further decision dated 25 September 2012 reconsidering the earlier decision of 1 December 2011 and backdating the start of the period of overpayment to 1 August 2006 and the amount overpaid to £13,738.65.  The alleged failure to disclose was unchanged.

3. The claimant had been in receipt of pension credit including a severe disablement premium from April 2004.  The claimant lived with her son and daughter-in-law but the property at which they lived was owned in joint names by the claimant and her son.  Their presence in the property was to be ignored for the purpose of considering the claimant’s entitlement to the severe disablement premium if at least one of them was co-owner of the dwelling (State Pension Credit Regulations 2002, Schedule 1, paragraphs 1(a)(ii) and 2(1) and (6)(a)).  There is no definition of “co-owner” in the State Pension Credit Regulations and this appeal turns on the meaning to be given to that expression in that context.

4. At least until July 2006, the claimant and her son were registered at HM Land Registry as joint proprietors of the property, having first been registered on 21 July 1997 (file in CPC/4510/2014, p.14).  A third person is also named on the proprietorship register as joint proprietor but it would appear from the claimant’s submissions at p.120 of CPC/4514/2014 that he was bought out in 2001.  It would also appear from those submissions that in 2006 the claimant and her son wished to raise a loan on the security of the property to adapt the property for her benefit and for the benefit of her granddaughter, who was also severely disabled. They were advised that because of her age and because she was in receipt of benefits, she would not qualify for a loan and that her son would only qualify if it was his name alone at the Land Registry.

5. The property, it is said, was therefore transferred into the son’s sole name but a deed of trust was drawn up so that the claimant would remain entitled to half the net profit of any sale.  The updated Land Registry entries were not in evidence, but the trust deed is at pp.37-38 of CPC/4510/2014.  It was a declaration of trust executed by the claimant and her son on 28 July 2006 and it recites that there had been a transfer and re-mortgage of even date by which the property was transferred to the son absolutely and the property was mortgaged to an identified lender to secure the sum of £216,275.  It declared that the property was to be held on a trust for sale by her son for the claimant and her son in equal shares after paying off the mortgage and any other mortgages.

6. There is no issue as to the genuineness of the trust deed but the Secretary of State, after discovering in 2011 that the claimant had ceased to be a legal owner, superseded the award of pension credit and substituted a decision that the claimant was entitled from 1 August 2006 to pension credit but without any additional amount for the severely disabled because she had ceased to be a co-owner with her son.  I note that there appears to have been no enquiry as to when the transfer to her son of even date was registered at the Land Registry and that until that date, under the provisions of the Land Registration Act, she had continued to be one of the two legal owner of the property.  Such registration is likely to have taken some weeks.  For the reasons given below, however, I am satisfied that it is unnecessary to investigate this further.

7. On appeal to the tribunal, the Secretary of State sought to rely on the decision of the Court of Appeal in Burton v New Forest DC [2004] EWCA Civ 1510, reported as R(H) 7/05.  That case concerned the meaning of “owner” where that expression was expressly defined in regulation 10(2) of the Housing Benefit (General) Regulations 1987.  There are many and varying statutory definitions of “owner” in different statutes and regulations which generally relate to the purposes of the provisions in those statutes and regulations.  The tribunal correctly distinguished that case on that basis and went on to refer to the definition of owner in the Oxford English Dictionary as “a person who has a rightful claim or title to a thing”.  It found that the claimant continued to be a co-owner for the purposes of the State Pension Credit Regulations after she signed the declaration of trust.  It found that “In the ordinary sense of the word owner the Appellant continued to own part of her home.  An ordinary person who was told that she would receive half of the proceeds of sale would say the Appellant was a joint or co-owner.”  The tribunal went on to contrast the undefined use of the word with the more restrictive meanings put on the expression elsewhere and allowed the appeals with the result that the claimant has at all times since 2006 at least until 2011 been entitled to the severe disablement allowance.

8. The tribunal did not therefore need to deal with the question whether there was any duty to disclose the change of circumstances and I note that on this appeal the Secretary of State does not seek to uphold the overpayment decision.  The only duty to disclose that could have arisen was one to disclose the change in legal title in or around July 2006, and it is rightly conceded that there was nothing in any documents sent to the claimant that could be interpreted as seeking such disclosure and no basis on which it could have occurred to her that it was needed.

9. That leaves the question whether the supersession decision or decisions based on the transfer of legal ownership was or were correct.  In my judgment, the tribunal was entitled to come to the conclusion that the claimant remained the co-owner of this land.  Thus in Eglington v Norman 46 LJQB, Bramwell LJ described the owner or proprietor of property as being the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation or control or usufruct of it.  In another context it has been held that a person who has a binding contract of sale to him of property is entitled to describe himself as “owner” in a contract for resale: Gordon Hill Trust Ltd v Segall 85 SJ 191.  It appears to me that “owner” is capable of including, depending on context, a person who is entitled to call for the legal title to be conveyed to them.  I also see no reason why it should not be capable of including two or more people who together can call for the legal estate under the rule in Saunders v Vautier, which allows everybody entitled beneficially to a property held on trust to combine to call for the legal title to be transferred according to their direction.  It may also include somebody who is registered as proprietor under a long lease even though somebody else owns the freehold.  It is therefore necessary to examine the context in which the term “co-owner” is used in the State Pension Credit Regulations.

10. The term “co-owner” appears in Schedules 1 and 2 to the State Pension Credit Regulations.  In Schedule 1 a co-owner who jointly occupies the dwelling is an exception, together with somebody who is jointly liable to make payments to a landlord in respect of their occupation of the premises, to the general rule that where there is a person residing with the claimant, that precludes the claimant from obtaining the severe disablement payment.  There is no obvious reason, in deciding whether to award the severe disablement payment, for distinguishing between a case where the property is held on trust for the two occupants by some other person and one where the occupants or one of them holds the property on trust for the two of them. 

11. There are similar provisions in Schedule 2, where, in deciding what are the applicable housing costs for a disabled person, the concern is to identify non-dependants living with them “except someone to whom sub-paragraphs (5), (6) or (7) of paragraph 1 of that Schedule applies.  Sub-paragraph (7) applies to a person who jointly occupies the claimant’s dwelling and who is either (i) a co-owner of that dwelling with the claimant or (ii) jointly liable with the claimant or the claimant’s partner to make payments to a landlord in respect of his occupation of the dwelling. 

12. Again there is no apparent reason to distinguish in this respect between a legal and beneficial co-owner, and this absence of reason is again fortified by the fact that somebody jointly liable under a tenancy agreement would be good enough for the purposes of these paragraphs.

13. Finally, paragraph 13 of Schedule 2 provides for there to be met under that paragraph “payments under a co-ownership scheme”.  A co-ownership scheme is defined by paragraph 13(6) as “a scheme under which a dwelling is let by a housing association and the tenant, or his personal representative, will, under the terms of the tenancy agreement or of the agreement under which he became a member of the association, be entitled, on his ceasing to be a member … to a sum calculated by reference directly or indirectly to the value of the dwelling”.  In this provision the Regulations are treating the housing association and the tenant as co-owners and it is a clear indication that “co-owner” is intended in these Regulations to have a wide meaning and not be confined to legal ownership as opposed to beneficial ownership.

14. It is clear, without trying to define the precise boundaries within which one can be a co-owner for the purposes of these Regulations, that the claimant in the present case was a co-owner of the property.  She had lived there with her son since 1997 and the only purpose of taking her off the title was to enable money to be borrowed to adapt the property.  She remained entitled to be considered a co-owner in the ordinary use of that word and the tribunal was correct to conclude that she remained a co-owner for the purposes of the Regulations.

15. The tribunal’s decision that she was a co-owner of the property and that the two decisions referred to in the decision notice can in my judgment be construed under the slip rules as setting aside all the decisions under appeal even if not all are correctly referred to as all were based on the incorrect proposition that the claimant was not a co-owner of the property.

(signed on the original) Michael Mark

Judge of the Upper Tribunal

9 July 2015