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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Work & Pensions v Selby District Council & Anor [2006] EWCA Civ 271 (13 February 2006) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2006/271.html Cite as: [2006] EWCA Civ 271 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSION
MR CHARLES TURNBULL (COMMISSIONER)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE LATHAM
LORD JUSTICE HOOPER
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SECRETARY OF STATE FOR WORK AND PENSIONS | CLAIMANT/APPELLANT |
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- v - | ||
SELBY DISTRICT COUNCIL & ANR | DEFENDANT/RESPONDENT |
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Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR P COPPEL (instructed by Selby District Council, Benefits Section, Civic Centre) appeared on behalf of the Respondent.
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Crown Copyright ©
The law:
"A person is entitled to housing benefit if a) he is entitled to make payments in respect of the dwelling in Great Britain which he occupies as his home …"
The interpretation is dealt with in Section 137 and pursuant to Section 137(2)(h):
"Regulations may make provision for the purposes of this Part of the Act … (h) as to circumstances in which a person is or is not to be treated as occupying a dwelling as his home."
Those regulations were made under the Housing Benefit General Regulations 1987 as they had been amended from time to time, and Regulation 5 describes the circumstances in which a person is or is not to be treated as occupying a dwelling as his home. The material regulations are these:
"(1) Subject to the following provisions of this regulation a person shall be treated as occupying as his home a dwelling normally occupied as his home a) by himself …
"(5) Where a person is liable 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 … (d) in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period not exceeding four benefit weeks if [he could not reasonably have avoided liability in respect of two dwellings].
"(5A) Where (a) a person has moved into a dwelling for which he is not liable to make payments ('the new dwelling'); and b) immediately before that move he was liable to make payments for the dwelling he previously occupied as his home ('the former dwelling'); and c) that liability continues after he has moved into the new dwelling, he shall be treated as occupying the former dwelling of his home for a period not exceeding four benefit weeks if he could not reasonably have avoided liability in respect of that former dwelling …
"(7B) This paragraph shall apply to a person who enters residential accommodation (a) for the purpose of ascertaining whether the accommodation suits his needs, and (b) with the intention of returning to the dwelling which is normally occupied by him as his home should, in the event, the residential accommodation prove not to suit his needs, and (c) whilst part of the dwelling which is normally occupied by him as his home is not let or as the case may be sublet.
"(7C) A person to whom paragraph (7B) applies shall be treated as if he is occupying his dwelling he normally occupies as his home for a period not exceeding, subject to an overall limit of 52 weeks on the absence from that home, 13 weeks beginning from the first day he enters residential accommodation.
"(8) [Subject to paragraph (8C)] a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for [a period not exceeding 13 weeks beginning on the first day of that absence from the home] only if (a) he intends to return to occupy the dwelling as his home; and (b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and (c) the period of absence is unlikely to exceed [13 weeks] …
"(8B) This paragraph shall apply to a person who is temporarily absent from the dwelling he normally occupies as his home ("absence") if (a) he intends to return to occupy the dwelling as his home; and (b) while the part of the dwelling which is normally occupied by him has not been let, or as the case may be, sublet; and (c) he is [there follow a number of circumstances, for example being detained in custody or being in hospital]; and (d) the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period.
"(8C) A person to whom paragraph (8B) applies shall be treated as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence."
The Commissioner's decision:
"It is reasonably clear that paragraphs (7B) and (7C) do not treat the claimant as occupying his former dwelling once he has become a permanent resident of the residential accommodation and so has ceased to intend to return to his former home."
He gave three reasons for that, which I can summarise as follows. The first was, as he said in paragraph 11:
"Once the claimant's former dwelling ceases to be a dwelling which he normally occupies as his home, because he has no intention to return to it, then in my judgment paragraph (7C) simply ceases to help him because he is no longer treated as occupying that dwelling."
"A claimant must enter the residential accommodation with an intention held at the time he enters that he would return home if the trial period in residential care proved to be unsuitable."
The only material time at which to assess his intention was at the point of entry. A contrast, she submits, the temporal condition in 7(B)(c); contrast also the different language of Regulations 8 and (8B). (7C) she submits is to be understood for what it is, a deemed provision.
Discussion:
Order: Appeal allowed.