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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
