Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

The claimant's appeal to the Upper Tribunal is allowed. The decision of the Exeter First-tier Tribunal dated 11 March 2009 involved an error on a point of law, for the reason given below, and is set aside. It is appropriate for the Upper Tribunal to re-make the decision on the claimant's appeal against South Hams District Council's decision dated 16 September 2008 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(ii)). That decision is that the appeal is allowed and that the decision notified on 11 September 2008 awarding the claimant housing benefit at the weekly rate of £121.15 from and including 8 September 2008 does not fall to be superseded with effect from 22 September 2008 on the ground of relevant change of circumstances, as there was no basis for making any change in the appropriate maximum housing benefit, because there had been no change in the number of occupiers of the claimant's dwelling and no proper basis for the rent officer's determination based on there having been a reduction in the number of occupiers.

 

 

REASONS FOR DECISION

 

1. When a young person who has been living with a parent in receipt of housing benefit goes away to university or a similar institution, to be accommodated in a hall of residence during term time, planning to return to the family home in vacations, what effect does that have on the amount of the eligible rent under regulations 12C and 13 of the Housing Benefit Regulations 2006, by reference to which the parent's maximum housing benefit is identified under regulation 70? This decision holds that in such circumstances the young person can in law remain throughout an occupier of the family home as his or her home, so that the eligible rent has to be calculated allowing for a bedroom for that person.

 

2. The claimant here became entitled to housing benefit with effect from 10 June 2008. She lived with her son, Jacob, who had turned 18 on 3 March 2008 but was then still in full-time secondary education, in a three-bedroomed house. She therefore received child benefit in respect of him and he was a member of her family for housing benefit purposes as a "young person" under regulation 19 of the Housing Benefit Regulations 2006 (further references to regulations below are to this set of regulations unless otherwise stated). Under the provisions that will be set out in detail later the rent officer determined the market rent for premises to be occupied as their home by two persons, which translated automatically into the maximum housing benefit. That was initially set at £121.15 per week when the actual rent was £126.92, presumably because the determination had to be by reference to a property with only two bedrooms. Housing benefit was awarded at that rate. Jacob ceased secondary education in summer 2008, having the offer of a place at the University of East Anglia in the autumn, which was confirmed in August 2008 after his A Level results. Accordingly, he ceased to count for child benefit purposes after 31 August 2008 and therefore also ceased to be a young person for housing benefit purposes. The claimant's entitlement to housing benefit from 8 September 2008 continued at the same rate, based on the same maximum housing benefit. There was no non-dependant deduction for Jacob's presence under regulation 74 [because the claimant was receiving the care component of disability living allowance (see regulation 74(6)(b)(ii)].

 

3. On 22 September 2008 Jacob left for University, where he had a place in a hall of residence. I shall come back later to the circumstances in more detail. The local authority knew in advance of this, because of enquiries made by the claimant, and on 17 September 2008 benefit decision notices indicating entitlement to housing benefit at £98.46 per week from 22 September 2008 were issued, giving the reason for calculation as "rent officer's decision received". According to the written submission to the tribunal that was because Jacob was no longer occupying the premises as his normal home and could not be included on the claimant's claim as a non-dependant, so that the rent officer had been asked to determine a maximum eligible rent figure for a property with a bedroom for one person. It was the reduction in the amount of housing benefit awarded that the claimant challenged in her appeal. That raised questions both as to whether an appealable decision had been made, and if so when, and as to whether Jacob should have ceased to count for the purposes of the rent officer's determination.

 

THE RELEVANT LEGISLATION

4. It is helpful in understanding the nature of the questions raised to set out the relevant legislation, at least in summary, before looking at the evidence before the tribunal.

 

5. Section 130(3) of the Social Security Contributions and Benefits Act 1992 makes the amount of a person's entitlement to housing benefit either the "appropriate maximum housing benefit" (AMHB) or a lower amount where the claimant's income exceeds her applicable amount. Section 130A requires regulations to prescribe the manner in which the AMHB is to be determined, which can include by reference to rent officer determinations, ie determinations in exercise of their functions under section 122 of the Housing Act 1996 (sub-section (7)). Without going into all the exceptionally complicated categories of rent officer determinations, in an ordinary case like this one regulation 12C(2) provides that the amount of a claimant's eligible rent shall be the maximum rent determined under regulation 13. Under regulation 13(2) where a local authority has applied for a determination under regulation 14 and a rent officer has determined a claim-related rent, that is to be the maximum rent.

 

6. The circumstances in which a local authority is required to apply to a rent officer for a determination include where it has received a notification of a "change relating to a rent allowance" (regulation 14(1)(c)). That phrase is defined in regulation 14(8) as meaning "a change or increase to which paragraph 2(3)(a), (b), (c) or (d) of Schedule 2 applies". Head (a) of that sub-paragraph is:

 

"(a) the number of occupiers of the dwelling has changed and that dwelling is not in a hostel;"

 

"Occupier" is defined in article 2(1) of the Order, unless the context otherwise requires, as:

 

"a person (whether or not identified by name) who is stated, in the application for the determination, to occupy the dwelling as his home;"

 

There is no general definition of "occupier" in the Housing Benefit Regulations 2006 or in the Social Security Contributions and Benefits Act 1992. Finally in this respect, regulation 70 provides, under the heading "Maximum housing benefit":

 

"70. The amount of a person's appropriate maximum housing benefit shall be 100 per cent. of his eligible rent calculated on a weekly basis in accordance with regulation 80 and 81 (calculation of weekly amounts and rent-free periods) less any deductions in respect of non-dependants which fall to be made under regulation 74 (non-dependant deductions)."

 

7. Thus it is clear that a local authority has no discretion following a rent officer's determination on a proper referral. It has to use eligible rent and therefore AMHB, subject to non-dependant deductions, of the amount set by the rent officer as a claim-determined rent. That is reflected in paragraph 6 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (the 2000 Act) which defines the decisions of local authorities against which a person has a right of appeal to a First-tier Tribunal. Paragraph 6(2)(c) provides that paragraph 6 does not apply to, ie there is no right of appeal against:

 

"(c) so much of any decision of a relevant authority as adopts a decision of a rent officer under any order made by virtue of section 122 of the Housing Act 1996 (decisions of rent officers for the purposes of housing benefit);"

 

The determination of a rent officer is not itself appealable to a First-tier Tribunal because it is not a decision of a relevant authority, ie an authority administering housing benefit or council tax benefit (paragraph 1 of Schedule 7), even if the other conditions in paragraph 1 were met.

 

8. Under paragraph 2 of Schedule 1 to the Rent Officers (Housing Benefit Functions) Order 1997 a rent officer must determine whether at the relevant time a dwelling exceeds the "size criteria for the occupiers" and if so what the rent would be for a similar dwelling that accorded with those criteria. Paragraph 1 of Schedule 2 (size criteria) provides:

 

"1. One bedroom or room suitable for living in shall be allowed for each of the following categories of occupier (and each occupier shall come within only the first category for which he is eligible):

(a) a couple (within the meaning of Part VII of the Social Security Contributions and Benefits Act 1992);

(b) a person who is not a child;

(c) two children of the same sex;

(d) two children who are less than 10 years old;

(e) a child."

 

Paragraph 2 deals with additional living rooms and does not affect the present case.

 

9. Thus it is clear at this point that a rent officer has no discretion or judgment to exercise over the question of how many people occupy the dwelling in question as their home, but must accept the number stated in the local authority's application under regulation 14.

 

10. There are other provisions of the Housing Benefit Regulations 2006 that deal with occupation of the dwelling as the home, in particular regulation 7, headed "Circumstances in which a person is or is not to be treated as occupying a dwelling as his home", in part 2 of the Regulations (provisions affecting entitlement to housing benefit). Regulation 7(1) to (3) provides:

 

"(1) 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) [polygamous marriages],

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

(2) In determining whether a dwelling is the dwelling normally occupied as a person's home for the purpose of paragraph (1) regard shall be had to any other dwelling occupied by that person or any other person referred to in paragraph (1) whether or not that dwelling is in Great Britain

(3) Where a single claimant or a lone parent is a student, other than one to whom regulation 56(1) applies (circumstances in which certain students are treated as not liable to make payments in respect of a dwelling), or is on a training course and is liable to make payments (including payments of mortgage interest or, in Scotland, payments under heritable securities or, in either case, analogous payments) in respect of either (but not both) the dwelling which he occupies for the purpose of attending his course of study or his training course, or as the case may be, the dwelling which he occupies when not attending his course, he shall be treated as occupying as his home the dwelling in respect of which he is liable to make such payments."

 

11. Under regulation 2(1) a "single claimant" is "a claimant who neither has a partner nor is a "lone parent" and a claimant is "a person claiming housing benefit". Under regulation 56(1), in Section 2 (entitlement and payments in respect of a dwelling) of Part 7 (students) of the Regulations, a full-time student is to be treated as if not liable to make payments of rent in respect of a dwelling, a rule reinforced in effect by regulation 57(1). Among the many exceptions in regulation 56(2) is a student whose applicable amount would, but for paragraph (1), include the disability premium or severe disability premium (sub-paragraph (c)). Here, Jacob's entitlement to the care component of DLA would have qualified him for one or both of those premiums. Regulation 55(1) provides:

 

"(1) Subject to paragraph (2) [excluding absence for hospital treatment], a full-time student shall not be treated as occupying a dwelling as his home during any benefit week outside the period of study if he is absent from it for the whole of that week and if the main purpose of his occupation during the period of study would be to facilitate attendance on his course."

 

The period of study, in the context of a course lasting for more than one year, runs from the start of the course to the day before the start of the normal summer vacation, unless the student's grant or loan is assessed on the basis of studying throughout the year, when it extends to the day before the start of the next year's course (regulation 53). In the final year it ends on the last day of the course.

 

12. Regulation 7(13) provides:

 

"(13) Subject to paragraph (17) 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 with 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."

 

Under regulation 7(17) a person to whom regulation 7(16) applies is to be treated as occupying the dwelling normally occupied as the home during any period of temporary absence not exceeding 52 weeks. Regulation 7(16) provides as follows:

 

"(16) 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--

...

(viii) a student to whom paragraph (3) and (6)(b) does not apply;

...; and

(d) the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period."

 

Regulation 7(6)(b) is not relevant to the present case as it applies only to couples where one partner is a student who have to live in separate places.

 

13. Regulation 3 contains the definition of "non-dependant" as meaning "any person ... who normally resides with a claimant or with whom the claimant normally resides".

 

THE TRIBUNAL'S DECISION

14. In a letter dated 14 January 2009 the claimant described the circumstances as follows:

 

"Since the 22nd September 2008 my son is spending periods of time, at a temporary address (halls of residence), while he is attending the University of East Anglia. Jacob lives with me in our home outside of term times. Not only does he reside here, but all his possessions are here (including his pet canaries) and he takes away only clothing and other essentials when he is at university. Jacob has muscular dystrophy and all the health professionals he sees, such as his neuromuscular consultant, geneticist, orthotist and heart monitoring are here in Devon (he is in receipt of DLA), he has his mail sent here, and he is registered to vote here."

 

I do not need to go into all the confusing and conflicting advice about the rules to be applied that the claimant describes in that letter.

 

15. The claimant attended the hearing on 11 March 2009 with her representative from Teignbridge Citizens Advice Bureau. In her oral evidence she said that Jacob had come back for a month over Christmas and was coming back for a month in April and then in May/June for the summer holidays. She sent on his correspondence, including bank statements and hospital letters, that arrived at her address. University correspondence did not come to that address. She said that Jacob had a desktop PC in his room at home, but took a laptop to University. He had lots of clothes and possessions, including books, in his room in her home and only took to University what he needed there.

 

16. The tribunal apparently accepted that evidence, which there was indeed no reason to doubt. It seemingly accepted the local authority's approach in its written submission that the case turned on whether Jacob could be included in the claimant's claim as a non-dependant. It stated that, there being no definition of "normally residing" in regulation 3, it turned for guidance to regulation 7 and relied in particular on the provision in regulation 7(3) that a student claimant liable to make payments in respect of the dwelling occupied for the purposes of the course of study was to be treated as occupying that dwelling. Although "occupies" was not synonymous with "resides with", it was appropriate to have regard to regulation 7 and the notion of "normally" as helping to resolve cases where a claimant might be regarded as living in more than one property (R(H) 9/05). The statement of reasons then concluded:

 

"Accordingly, the Tribunal concluded that taking into account the facts that as from 22/9/08 for the winter term [Jacob] was living away from home for the purposes of his course and was paying for accommodation and other living expenses he was not then normally residing with his mother and therefore cannot be regarded as a non-dependant for the purposes of determining the maximum eligible rent figure."

 

The tribunal disallowed the appeal and confirmed the decision of 17 September 2008.

 

THE APPEAL TO THE UPPER TRIBUNAL

17. The claimant now appeals against that decision with the permission of a district tribunal judge. After the first round of written submissions, I directed that the Secretary of State for Work and Pensions be joined as second respondent and also directed an oral hearing. The hearing took place on 10 March 2010 after further very helpful written submissions had been made. The claimant was represented by Mr [Vincent] Willson of the Devon Welfare Rights Unit of the CAB. The local authority was represented by Mr Ranjit Bhose of counsel, instructed through Sharpe Pritchard solicitors and Parliamentary agents. The Secretary of State was represented by Ms Anna Powick of the Office of the Solicitor to the Department for Work and Pensions. I am grateful to all present for their well-focused submissions.

 

WAS THERE AN APPEALABLE DECISION?

18. Fortunately, by the time of the oral hearing all representatives were agreed with the analysis in the written submission dated 29 January 2010 by Mr Wayne Spencer on behalf of the Secretary of State. That analysis supported the conclusion that the local authority's decision of 17 September 2008 was appealable and that on the appeal the issue of the number of people who occupied the premises in question as their home fell to be determined by the tribunal. I also agree with that conclusion, but in view of the history I should give a brief explanation.

 

19. The initial difficulty arose from it appearing that neither the local authority's decision to apply to a rent officer for a determination immediately prior to the decision of 17 September 2008, with its binding (for the rent officer) identification of the number of occupiers, nor the rent officer's determination itself were appealable. The first decision was not a "relevant decision" as defined in paragraph 1(2) of Schedule 7 to the 2000 Act because it was not a decision on the claim for housing benefit (head (a)). That claim had already been determined by the award of benefit and according to paragraph 2(a) of Schedule 7 then ceased to exist. Nor did the decision supersede the operative awarding decision (paragraph 1(2)(b). Only "relevant decisions" fall within paragraph 6(1) of Schedule 7. The second decision was not appealable for the same reason, plus that given at the end of paragraph 6 above. Then the difficulty is compounded by the rule in paragraph 6(2)(c) of Schedule 7. Since the local authority on 17 September 2008 was bound to adopt the rent officer's determination in calculating the AMHB, does that mean that an appeal against its decision of that date could not include any elements, including the number of occupiers, that went into the rent officer's determination?

 

20. The difficulty was not lessened by two previous decisions. The first was that of the Court of Appeal in R v Housing Benefit Review Board for Swale Borough Council, ex parte Marchant (2000) 32 HLR 856, [2000] 1 FLR 246. The court there was concerned with whether the claimant's children, who lived with him for alternate weeks after he split up with his previous partner, were to count in applying the size criteria under provisions essentially similar to those set out above. As indicated by the title, the application for judicial review was directed against the review board that had disallowed the claimant's appeal against the local authority's decision equivalent that of 17 September 2008 here. But the concentration was on the issue of substance and not on any question as to whether an appeal lay to the review board against that decision under the legislation then in force.

 

21. The second and much more recent decision was that of Judge Williams in Stroud District Council v JG [2009] UKUT 67 (AAC), to be reported as R(H) 8/09 (which indicates that the decision has the broad assent of the Administrative Appeals Chamber). Judge Williams was dealing with a case arising in almost exactly the same way as the present case, although there were of course differences in the precise circumstances. It is not clear exactly what decision was identified in the appeal to the appeal tribunal, but Judge Williams stated in paragraph 7 of his decision:

 

"It was common ground before me that the decision that gave rise to this dispute was the decision of Stroud DC to refer Mrs G's rent to the Rent Service when it took the view that [her son] was no longer resident with her. It was not the decision of the rent officer on that reference. I emphasis this because the papers refer on several occasions to an appeal against the rent officer's decision."

 

He then put his substituted decision in the form that, since Mrs G's son remained an occupier there was no change of circumstances to be referred to the Rent Service with regard to the number of occupiers, so that the decision of the local authority to refer her rent to the Rent Service was wrongly made and that decision was set aside along with all the decisions of the local authority consequent on it. All of that certainly suggests that Judge Williams considered that the local authority's decision to refer the rent was directly before the tribunal, to be capable of being set aside, although it is notable that he carefully did not say more than that it was that decision that "gave rise to" the dispute.

 

22. Before the Upper Tribunal in the present case all the other parties agreed with Mr Spencer for the Secretary of State that, for the reasons summarised in paragraph 19 above, the decision to refer the claimant's rent to a rent officer was not appealable. However, they also agreed with him that that decision was (in accordance with Commissioners' decisions R(IB) 2/04 and R(H) 2/08) to be regarded as one component determination, one building block, of several leading to and embodied in the "outcome" decision of 17 September 2008 altering the amount of the claimant's entitlement. Therefore, in an appeal against that outcome decision the tribunal was bound to consider afresh all those elements, including the local authority's determination of the number of occupiers in the reference to a rent officer. The parties were also agreed that the effect of paragraph 6(2)(c) of Schedule 7 to the 2000 Act was limited to taking out of the issues to be considered on appeal the rent officer's rent determination on the basis that the officer had been bound to accept. It did not take out the prior determinations of the local authority setting that basis or the later outcome decision altering entitlement.

 

23. That is a cogent and compelling analysis. It would be ludicrous if in circumstances like the present a claimant was forced to apply for judicial review of a local authority's reference to a rent officer under regulation 14, an application which would then fall within the jurisdiction of the Administrative Appeals Chamber of the Upper Tribunal under sections 15(2) and 18(2) of the Tribunals, Courts and Enforcement Act 2007. I accept and adopt the position agreed by the parties. That position is consistent with the general approach in Marchant and with the result of Stroud DC v JG. The latter decision must be understood as recognising the decision under appeal as the outcome decision and the determination of the appeal as involving a fresh consideration of the issues involved in the local authority's prior reference to a rent officer. Thus it was not so much a matter of the reference to a rent officer being set aside and all following determinations falling in consequence, but of the reconsideration of the issue of the number of occupiers determined at that stage leading to the result that the outcome decision had to be that there was no ground to supersede the operative awarding decision. I do not regard that as in any way undermining the fundamentals of the principles of law for which Stroud DC v JG stands.

 

DID THE TRIBUNAL MISDIRECT ITSELF ON WHETHER JACOB OCCUPIED THE CLAIMANT'S HOUSE AS HIS HOME?

 

The parties' submissions

24. Mr Willson for the claimant adopted an argument that I had put forward for consideration when directing the oral hearing:

 

"I wish the Secretary of State and the other parties to consider the following very simple view. The question in relation to regulation 14 of the 2006 Regulations is whether "the number of occupiers of the dwelling has changed" (regulation 14(1)(c), definition of "change relating to a rent allowance" in regulation 14(8) and paragraph 2(3)(a) of Schedule 2 to the 2006 Regulations). "Occupier" is not defined in the 2006 Regulations or in the 1997 Order. The Court of Appeal in [Marchant] held that the meaning of the word for these purposes was to be determined by reference to the predecessor of regulation 7 of the 2006 Regulations (circumstances in which a person is or not to be treated as occupying a dwelling as his home). Regulation 7(1) establishes the general rule that a person is to be treated as occupying as his home the dwelling normally occupied as his home. Then regulation 7(16) and (17) provide that a person who is temporarily absent from the dwelling he normally occupies as his home is to be treated as occupying that dwelling for any period of absence not exceeding 52 weeks if certain conditions are satisfied. The conditions are that the person intends to return to occupy the dwelling as his home, the part normally occupied by him has not been let to someone else, he falls into one of a number of specified categories and the absence is unlikely to exceed 52 weeks (or in exceptional cases a longer period). Category (viii) in sub-paragraph (16)(c) is "a student to whom paragraph (3) or (6)(b) does not apply". The claimant's son here was a student. But regulation 7(3) applies to single claimants or lone parents who are students, ie people who have claimed housing benefit, and not to those like the claimant's son in the present case who might be entitled to housing benefit in respect of term-time accommodation, but have not made a claim. Regulation 7(6)(b) applies only to members of couples or polygamous marriages, so plainly does not apply. Therefore, if the other conditions were met, the claimant's son was deemed [to] occupy her home during temporary absence so long as he normally occupied it as his home at the beginning of the absence and retained the intention to return to occupy it as his home. That would appear to apply to his absence for his first term away and probably for subsequent terms after returning home for a vacation."

 

25. Mr Willson initially appeared to accept that the deeming process could not operate if the person had ceased normally to occupy the dwelling in question. However, in his closing submissions he argued that regulation 7(16) and (17) would have no point unless they avoided having to make a judgment about whether normal occupation had ceased. But he submitted that in any case it was impossible here to conclude that Jacob had ceased normally to occupy the claimant's home. He asked pertinently what in general the claimant was expected to do in the circumstances of this case. Could any parent reasonably be expected to move immediately to smaller premises with no bedroom for student offspring or to let out rooms so that there was no longer an available bedroom in the existing premises?

 

26. For the local authority Mr Bhose submitted that the tribunal had been entitled to look first at regulation 3 and the definition of non-dependant. Even if that was wrong, in practical terms asking whether Jacob normally resided with the claimant was the same as asking whether he normally occupied her house as his home. The tribunal had, he said, been entitled to conclude on the evidence that Jacob ceased to do so when he left for University. He relied in particular on the Court of Appeal's acceptance in Marchant of the relevance in the circumstances of that case of the provision that a person was to be treated as responsible for a child normally living with him and of the further provision that if the child spent equal time in different households the person in receipt of child benefit was to be treated as responsible. What Mr Bhose took from that was that the question of what dwelling was normally occupied as the home, in accordance with regulation 7, had to be considered in the context of the Regulations as a whole. He submitted that Jacob did not come within regulation 7(17) and (16)(c)(viii) because regulation 7(3) applied to him. He was a full-time student, regulation 56(1) did not apply to him by virtue of his entitlement to DLA (regulation 56(2)(c)), and he was liable to make payments in respect of the dwelling occupied for the purpose of attending his course of study, ie his room in the hall of residence. Regulation 7(3) should then apply to deem Jacob to occupy as his home only his room in the hall of residence, even though he had not claimed housing benefit, so that he could not also occupy his mother's house as his home. Mr Bhose further submitted that, if regulation 7(3) did not apply as such in the absence of a claim for housing benefit by Jacob, it nevertheless established a context showing that in such general circumstances students who would be eligible to claim housing benefit for their term-time accommodation could not be accepted as also occupying their parents' homes at the same time.

 

27. Ms Powick for the Secretary of State took a very similar view on the effect of regulation 7(3), which she said was an indication of the general intention that students were not be taken into account in the scheme except in defined circumstances, to which it should be irrelevant whether the particular student had claimed housing benefit or not. She agreed that the starting point should be regulation 7, rather than any consideration of the meaning of non-dependant, but submitted that the underlying question was what dwelling the student occupied as his or her home. On that basis, regulation 7(16) and (17) did not take one much further forward in answering that question. Ms Powick acknowledged the realities of the basis on which students now have the use of rooms in ordinary halls of residence, with all belongings having to be cleared at the end of each term and transported back at the beginning of the next, and conceded that there could be cases where a student not in one of the special categories allowed to claim housing benefit for term-time accommodation could be occupying the parental home as his or her home. However, in the present case the tribunal had been entitled to conclude that Jacob normally occupied his hall of residence room and it was submitted that it had not erred in law.

 

Discussion

28. I do not accept the submissions for the local authority and the Secretary of State. No assistance being given in the 2006 Regulations or the 1997 Order for a particular meaning of "occupiers of the dwelling" for the purposes of regulation 14(1)(c), I agree that the starting point must be regulation 7. No doubt regulation 7(1) uses the terms of treating "a person" as "occupying as his home the dwelling normally occupied as his home" because the condition of entitlement in section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 is in terms of whether "a person" is "liable to make payments in respect of a dwelling ... which he occupies as his home". However, that is no reason for regulation 7 not also to apply where the question of occupation by persons other than claimants is in issue. The Court of Appeal in Marchant expressly rejected the argument that for the purposes of regulation 14(1)(a) the dwelling did not need to be occupied "as the home" and endorsed the role of regulation 7 in the context of the rest of the regulations. I would be bound to follow that decision, but consider it correct anyway.

 

29. There are two important features of regulation 7(1) to note at the outset. The first is that the fundamental test remains whether the dwelling is occupied as the home. The question of whether the dwelling is normally so occupied is relevant to whether that test is deemed to be satisfied. The second is that that deeming is given an exhaustive effect by the provision that the person is not to be treated as occupying any other dwelling as the home. One dwelling has to be identified. I have considered whether that second feature of regulation 7(1) could be said not to be of general application, being restricted to the purpose of identifying the dwelling in respect of which a claim can be made, but have concluded against that view. Once regulation 7 is in play, all of it is in play. However, regulation 7(1) is subject to the following paragraphs of regulation 7, so that the "one dwelling only" rule can be disapplied, as it is directly in paragraph (6). Paragraph (6) provides an exhaustive list of the circumstances in which a person can be treated as occupying two, but no more, dwellings as the home when there is a liability to make payments in respect of both dwellings, thus providing a protection against double payments of housing benefit except in the specified cases. It does not apply where there is only a liability to make payments in respect of one dwelling, as in the present case. In those circumstances, it is my view that other paragraphs of the regulation deeming a particular dwelling to be occupied as the home in certain circumstances may by implication disapply the one dwelling only rule (see the further more specific discussion in paragraph 37 below).

 

30. The next provision to be examined is regulation 7(13). That has not featured directly in the submissions made, but has to be considered because it appears that on 22 September 2008 Jacob was expecting to return to the claimant's home within 13 weeks at the end of the first term. The evidence of term dates was not before the tribunal of 11 March 2009, but information obtained by an officer of the local authority on 14 October 2009 (page 70) gave the University of East Anglia term dates as 21 September 2009 to 11 December 2009, 11 January 2009 to 19 March 2010 and 19 April 2010 to 11 June 2010. It can be assumed that the lengths of term were the same in 2008/2009. Thus, here the claimant would only have needed to rely on regulation 7(13), if its conditions were satisfied during the 2008/2009 period of study, and would not have needed to invoke the potential longer period of deeming under paragraph (17).

 

31. Then paragraph (13) directly deems a person to occupy a dwelling as the home (not normally to occupy) during a temporary absence. Under sub-paragraph (a) the intention to return need only be to return to occupy the dwelling as the home (not in so many words normally to occupy) and sub-paragraph (c) in referring to the likely length of the period of absence in my judgment points merely to when the person is expected to be physically back in the dwelling as the home. It seems to me that immediately before the beginning of the absence the person must have been normally occupying at least some part of the dwelling (to which sub-paragraph (b) refers). Then what matters is the quality that the person's occupation of the dwelling is intended to have when the intended return takes place. The return has to be to occupy as the home, not a mere transient or limited return of a different nature. By necessary implication an actual physical return does not bring the period of absence to an end, so as to allow another period qualifying under paragraph (13) to start on leaving again, unless the occupation has that quality. However, it is not necessary for that purpose to consider if the person might also have another home, even a home that would be said to be the main or normal home. Since there are continuing conditions that the absence is unlikely to exceed 13 weeks and that there is an intention to return to the dwelling as the home, the test of the absence being temporary can have little, if any, practical effect.

 

32. The submissions for the Secretary of State and the local authority in relation to regulation 7(16) and (17) about an underlying test of what is the normal home must then be addressed in relation to paragraph (13). In my judgment, if there is to be any point in the existence of paragraphs (13) and (16) and (17) there can be no such underlying condition. There can only be a point to the existence of those provisions and their carefully structured conditions if they enable decision-makers and tribunals to avoid having to make the difficult value judgments about which dwelling is normally occupied, but instead to rely on answers to more factual and limited questions. That is reinforced by the wording of both paragraph (13) and (somewhat less clearly) (17). What is deemed if the conditions are met is that the person is occupying the dwelling as the home, cutting through the ordinary test of normal occupation in paragraph (1).

 

33. To that extent, I disagree with the views of Simon Brown J in R v Penwith District Council, ex parte Burt (1990) 22 HLR 292 and of Mr Deputy Commissioner Mark in paragraph 19 of CH/3014/2005. Neither of those cases was cited to me, but as in my judgment the views expressed were not necessary to the decision in either case there is no need to seek the comments of the parties. In Burt, Simon Brown J said, at 296:

 

"In my judgment, if, in a case such as this, the authority wish to terminate the occupier's eligibility for housing benefit on the footing that he or she is essentially absent from the dwelling in question, then, where there has not been a literally continuous period of absence for 52 weeks (or, I would add parenthetically, a shorter period if [the equivalent of regulation 7(16) and (17)] be not satisfied) they can only do so by operation of [the equivalent of regulation 7(1)], ie on the basis that the claimant does not normally occupy that dwelling as his or her home and that his or her absences are not in any real sense temporary. It is [regulation 7(1)] that enshrines the governing principle, namely, that a person is to be treated as satisfying the requirement of occupation only in respect of a dwelling `normally occupied as his home'."

 

Mr Deputy Commissioner Mark said, in respect of both the 13 week and 52 week absence provisions in the equivalent of regulation 7 that the property:

 

"must also remain throughout the period(s) of absence the dwelling normally occupied by the claimant as his home. If, for example, the claimant at any stage formed the intention to stay with his girl friend and only keep his own flat for storage and as somewhere to go if his relationship failed, then he would cease to occupy the flat as his home."

 

34. I find those statements inconsistent with the factors identified in paragraphs 31 and 32 above, which do not appear to have been put in argument in either case. However, that is not to say that Mr Deputy Commissioner Mark's example above is irrelevant. In the circumstances assumed, the claimant would have ceased to intend to return to occupy the flat as his home, so that regulation 7(13)(a) and 7(16)(a) would cease to be satisfied. A positive intention to return on that basis must be required, not a mere floating possibility of return on some eventualities. And it would also have ceased to be unlikely that the absence would exceed 13 weeks or maybe even 52 weeks (regulation 7(13)(c) and 16(d)). It could even also have been that the claimant had ceased to be absent "temporarily". That word very probably has a somewhat stronger meaning than merely "not permanently" (see Chief Adjudication Officer v Balmer, Court of Appeal 16 March 1994, reported as an appendix to R(S) 1/96). Thus the danger of abuse raised is adequately guarded against without any need to resort to the concept of normal occupation of one dwelling only. In the circumstances of Burt, where the claimant was spending long periods living with her son on account of her health, returning to her own dwelling during school holidays, the two main conditions above appeared still to be satisfied. Simon Brown J thought that the local authority might have been able to show that the claimant no longer normally occupied her dwelling, but he certainly did not definitely reach that conclusion or seek to uphold the local authority's decision on that basis. I therefore do not give any great weight to his observations.

 

35. It is also follows that I do not agree entirely with the analysis accepted by Judge Williams in paragraph 21 of Stroud DC v JG, where he agreed with the representative of the claimant there that the fundamental question under regulation 7 was whether the student son "normally occupied" the claimant's house as his home. However, as my approach is a development of that analysis and would not suggest that the result of that case was wrong in any way, I do not see that as any obstacle to reaching the conclusions of law above. I have also had the advantage of submissions on behalf of the Secretary of State.

 

36. I need say little in addition about the general structure of regulation 7(16) and (17). The deeming in paragraph (17) is of occupying the dwelling which at the outset of the absence was normally occupied as the home. The major difference is that the 52 week absence is allowed only for a person falling into one of the categories specified in paragraph 16(c). The only potentially relevant category in the present case is (viii), certain students. Far from illustrating a general policy of taking students out of the housing benefit scheme, as submitted for the Secretary of State, this provision seems to me show that there is clearly a place for them, although carefully delimited. I see no reason for construing the condition that neither paragraph (3) nor (6)(b) applies otherwise than by reference to its plain meaning. It has already been noted that paragraph (6)(b) cannot apply here as it is limited to couples or members of a polygamous marriage. Then paragraph (3) applies specifically only to single claimants and lone parents. It is true that "lone parent" is defined free of any restriction to claimants, but "single claimant" is defined as a person claiming housing benefit who does not have a partner and is not a lone parent. In the context of paragraph (3) the reference to a lone parent is to a claimant who is a lone parent. By contrast to the rest of regulation 7, which is almost entirely in terms of "person", the use of the words "single claimant" can only indicate that restricted meaning. Thus where, as in the present case, a student would not be prevented by regulation 56(1) from claiming housing benefit in respect of payments made for term-time accommodation, but has not in fact made such a claim, regulation 7(3) does not apply.

 

37. It was argued for the local authority and the Secretary of State that the deeming provisions in regulation 7(13) and (16) and (17) could not be allowed to operate for students in relation to the parental home because that would prevent students who are allowed to claim housing benefit for term-time accommodation from doing so. If they were deemed still to be occupying the parental home, the one dwelling only rule in regulation 7(1) would prevent the occupation of the term-time accommodation counting. That would not in my view be the case. First, students without a partner who claimed housing benefit in respect of term-time accommodation would fall within regulation 7(3) and, not being liable to make any payments in respect of the parental home, would be deemed to be occupying the term-time accommodation as their home. In those circumstances, they could not count as occupiers of the parental home during a temporary absence under regulation 7(16) and (17) because they would not be within paragraph (16)(viii). Regulation 7(13) would remain available. However, second, in my view it is implicit in regulation 7(13) and (16) and (17) that those provisions operate not only to cut through the issue of whether a person normally occupies a dwelling as his or her home, but also as an exception to the one dwelling only rule in regulation 7(1). Thus, I do not see why (although I stress that I am not deciding this particular point) a student should not at the same time be deemed under regulation 7(3) to be occupying term-time accommodation as the home during term time for the purposes of claiming housing benefit and also be deemed to occupy the parental home under regulation 7(13) for the purposes of a parent's claim. The student would no doubt then properly be treated as a non-dependant, but no deduction would be made for a full-time student during the period of study (regulation 74(7)(c)), during the summer vacation if not in remunerative (ie at least 16 hours per week) work (regulation 74(7)(d)) or if the student's normal home is elsewhere (regulation 74(7)(a)).

 

Application of conclusions of law to the tribunal's decision

38. It follows from the conclusions above, especially those in paragraphs 30 to 34 about regulation 7(13), that the tribunal of 11 March 2009 erred in law by failing to ask itself whether Jacob was required to be treated as occupying the claimant's dwelling as his home from 22 September 2008 under regulation 7(13) or (16) and (17), but instead asking itself which one dwelling he was normally occupying. If I had to ask as at 22 September 2008 which one dwelling Jacob normally occupied as his home I would have said in general terms that that was still the claimant's house. Despite his liability to pay for his hall of residence accommodation and the focus of interests there during term time, his enduring "base" was still his mother's home. The terms on which he, like many other students, had use of his room in the hall of residence, made it more of a temporary staging-post. It is an important part of the value of going away for further education that there is not an abrupt and complete leaving of the parental home, but a dual existence, at least at the beginning, where the student in effect has two homes. However, the tribunal was entitled in its judgment to take a different view and cannot be said to have erred in law by doing so. The error was in not considering whether the deeming provisions cut through the question of which dwelling was normally occupied.

 

39. For that reason, the tribunal's decision must be set aside. In the light of my conclusions above, it is appropriate, contrary to the submissions for the Secretary of State and the local authority, to re-make the decision on the claimant's appeal against the decision of 16 September 2008 on the basis of the findings of fact made by the tribunal and of evidence that is not in dispute.

 

THE UPPER TRIBUNAL'S DECISION ON THE APPEAL AGAINST THE DECISION OF 16 SEPTEMBER 2008

40. There is no dispute that immediately prior to 22 September 2008 Jacob was normally occupying the claimant's dwelling as his home. The tribunal found as a fact that, having started his course on that date, he returned to his mother's house for a month in December. By necessary implication, that had been Jacob's intention from the outset and it can be assumed as not in dispute that the first term was to end on Friday 12 December 2008, when (or at the immediately following weekend) he would be required to vacate his room in the hall of residence. Accordingly, the circumstances fell within regulation 7(13). Since Jacob's intention was to return in 12 weeks, he was only temporarily absent from what he had been occupying as his home. On 22 September 2008 Jacob intended to return to occupy his mother's house as his home. I have no doubt that, especially since all his personal belongings would have had to be removed from the hall of residence as well as the parental home still being his enduring base, the quality of his occupation over the Christmas vacation was intended to be as his home. The part that Jacob normally occupied was not let out or sub-let. Finally, the period of absence was unlikely to exceed 13 weeks. Accordingly, without the need to examine the conditions in regulation 7(16) and (17), Jacob was to be treated as continuing to occupy his mother's house from 22 September 2008.

 

41. Working through the consequences of that conclusion, there was therefore no change in the number of occupiers of the claimant's dwelling for the purposes of regulation 14(1)(c). Accordingly, there was not a ground to authorise the local authority's reference to a rent officer and the specification of the number of occupiers in the reference actually made was flawed. That fatally undermines the rent officer's determination of the claim-related rent and the calculation of the appropriate maximum housing benefit by the local authority as a result. The outcome has to be that, there having been no change in the number of occupiers, there had been no relevant change of circumstances to ground a supersession of the existing award of housing benefit on 16 September 2008. Jacob had been treated as a non-dependant for whom no deduction was to be made in the award in effect from 8 September 2008 and that did not change with effect from 22 September 2008, for the reasons mentioned in paragraph 37 above.

 

42. My formal decision giving effect to those conclusions is on the first page of this document.

 

43. Because I, like the tribunal, am restricted to looking at the circumstances as at the date of the decision under appeal, I cannot deal directly with the amount of the claimant's entitlement to housing benefit for the rest of the period down to the present. However, the effect of my decision is that the award of £121.15 per week from and including 8 September 2008 remains operative, unless and until the local authority takes action to revise or supersede the decision making that award. The local authority is therefore under an obligation to make payment of arrears based on that level of award, subject to taking any such action, which might be necessary to take account of changes in the amount of rent payable as well as any other relevant change of circumstances that may have occurred. However, if things have stayed in essence as they were, the same result should follow for each term-time absence and there would be no need for any deeming in the vacations if Jacob returned to the claimant’s home. I note from an email recently received from the claimant that she has had to meet the additional shortfall of over £20 per week in the amount of housing benefit to cover the full rent throughout the period from 22 September 2008. It seems to me, however, that, even if the local authority’s view of the law had been correct, during the summer vacation the effect of regulation 55(1) (paragraph 11 above) would have been that someone in Jacob's circumstances had to be regarded as an occupier of the parental home if they were not living anywhere else, with a non-dependant deduction of nil if not working for more than 16 hours a week […].

 

 

 

 

(Signed on original): J Mesher

Judge of the Upper Tribunal

 

Date: 29 April 2010

Corrected in paragraphs 2, 17 and 43: 19 May and 10 June 2010