Recent Developments in Housing Benefit Law
26th March 2008
Housing Law Practitioners’ Association, 26 March 2008
Part Two – Recent Cases
Paper produced and presented by Desmond Rutledge, Barrister at Garden
Court Chambers
Legislation
The Social Security Contributions and Benefits Act 1992 (SSCBA 1992”)
Social Security Administration Act 1992 (“SSAA 1992”) Child Support
Pensions and Social Security Act 2000 Schedule 7 (“CSP&SSA 2000”) and
the Housing Benefit and Council Tax Benefit (Decisions and Appeals)
Regulations 2001 (SI 2001/1002) (“DMA Regs 2001”). The Housing Benefit
Regulations 2006 (SI 2006/213)1 (“HB Regs 2006”).
1
Access to Cases
Commissioners’ decisions are available for free on the Commissioners’
official website www.osscsb.gov.uk, the British and Irish Legal Information
Institute website www.bailii.org under ‘United kingdom – Tribunals. The
DWP website gives you access to reported cases only. There are various
websites for subscribers, such as ‘rightsnet’ and ‘hbinfo’.
2
Some basic concepts
A revision is used to correct a past decision because it was based on the
wrong information or the wrong legal test was applied. 2 The revised
(corrected) decision will take effect from the date of the original decision.
3
4
A supersession is used to replace a previous decision with a new decision
because there has been a subsequent change of circumstances. 3 The
supersession normally takes effect from the date it was made.4
1
Similar provisions apply to persons who have attained the qualifying age for State Pension
Credit SI/2006/214 and for Council Tax Benefit, SI 2006/215 and SI/2006/16.
2 CSP&SSA 2000, Sch 7, para 3, DMA Regs 2001, reg 4.
3 CSP&SSA 2000, Sch 7, para 4, DMA Regs 2001, reg 7.
4 The exemptions are contained in DMA Regs 2001, reg 8.
Page 1 of 24
Recent Developments in Housing Benefit Law
26th March 2008
5
Decision to end or alter HB entitlement: A decision to award HB is final,
subject to the processes of appeal, revision or supersession.5 The decision
maker must show that there are actual grounds for altering an award before
any supersession or revision can take place.6
6
Evidence: Adjudication in social security is not bound by the rules of
admissibility of evidence which apply in the ordinary courts.7 In particular,
there is no rule to say corroboration of the claimant’s own evidence is
necessary.8 As one Commissioner put it: “…there are no limitations on
admissibility of evidence other than relevance and that proof of relevant
facts may be made in any form. A claimant’s oral evidence is acceptable,
even if it is not corroborated, although the lack of corroboration is relevant in
assessing the evidence, as is the failure to provide documentary support
that should be available,” (CH/5088/2002. para.12).
7
The 13 month deadline for challenging a HB decision: The HB scheme
contains the following options for applying for arrears of HB:
-
8
putting in a late appeal against the decision;9
applying to extend the deadline for superseding the decision.10
Applications to appeal or alter an earlier decision are subject to a statutory
deadline of one month11 which can be extended for a further 12 months if
the relevant conditions can be satisfied. 12
5
CSP&SSA 2000, Sch 7, para 11.
Wood v Secretary of State for Work and Pensions [2003] ECWA Civ 53 R(DLA) 1/03 and R(IB)
2/04).
7 R(IS)17/04, R 1/04 (SF) and CH/5088/2002. Although appeal tribunals are not bound by the
strict rules of evidence, common law rules of evidence may still be relevant in the evaluation of
evidence in tribunal proceedings (CDLA/2014/2004 para 12).
8 R(SB) 33/85.
9 DMA Regs 2001, reg 19.
10 DMA Regs 2001, reg 9.
11 DMA Regs 2001, reg 18.
12 HB Regs 2006, reg 19(5)(a).
6
Page 2 of 24
Recent Developments in Housing Benefit Law
26th March 2008
9
It is arguable that a decision will not be effective until it is communicated to
the relevant party13 and in those circumstances the statutory deadline does
not start to run. 14
10
Where a proper decision has been duly notified and the claimant has not
made any attempt to dispute the decision within the 13 months’ period then
the only option is to consider making an 'any time' revision on the grounds
that the original decision “arose out of official error”.15 The type of mistake
required is one that, with the benefit of hindsight, is a “clear and obvious"
error of fact or law having regard to the facts disclosed to the decisionmaker at the time.16 However, the application will fail if the claimant has
contributed to the official error. If the LA refuses the request to revise a
decision, there is no right of appeal to a tribunal against such a refusal. 17
The only remedy is by way of judicial review. If the LA has not considered
this option then the tribunal can consider it on appeal.18
11
Where entitlement to HB has come to an end and a new claim has not been
made, it may be possible to backdate the new claim for up to 52 weeks if
there was continuous ‘good cause’19 for the delay. 20
1
Suspension and termination of HB – the information
requirement – home visits (DMA Regs 2001 regs 12, 13 & 14).
12
Benefit can be suspended and then terminated if the claimant does not
provide information in relation to their claim in response to a request from
the local authority (LA). The LA must give the claimant one month, (or such
longer period as is reasonable), in which to provide the required information
or evidence. If the claimant fails to provide the information or evidence as
13
R (Anufrijeva) Secretary of State for the Home Department & Another [2003] UK HL 36.
R(P)1/04, para 4 of Appendix B.
15 DMA Regs 2001, reg 4(2).
16 R(SB) 2/93, R(SB) 10/91.
17 Beltekian v City of Westminster and Secretary of State for Work and Pensions 2004 EWCA Civ
1784 R(H) 8/05.
18 CH/3009/2002 para 21, CDLA/393/2006 para. 7.
19 HB Regs 2006, 83(12).
20 For a summary of the case law see the HB Guidance Manual - P2.494 and Annex A at the end
of Part A on Claims. See also Good Cause – Backdating Housing Benefit, Adviser 113, Jan/Feb
2006 by Desmond Rutledge.
14
Page 3 of 24
Recent Developments in Housing Benefit Law
26th March 2008
requested then entitlement will be terminated from the date of suspension. 21
LAs operating the verification framework (VF) 22 should not ask a claimant
to provide evidence or information that s/he cannot reasonably obtain, or be
expected to obtain.23
13
CH/402/2006 discusses the powers of a LA to “terminate” a decision. The
Commissioner held that a termination decision takes effect as a
supersession. The failure to comply with the requirement to provide
information within the time allowed was a change of circumstances that
authorised the local authority to terminate entitlement. It was therefore a
decision appealable to a tribunal (followed in CH/2995/2006 and
CH/255/2007).
14
CH/2995/2006 considered the effect of a failure by the LA to give proper
notice of the period within which information is required on its ability to
terminate entitlement. The Commissioner described the power to terminate
entitlement as “a procedural penalty” as it enables the LA to terminate
entitlement for a failure to provide information, even if the claimant
subsequently provides the information and demonstrates that they would
have been entitled to benefit. The Commissioner held that such a penalty
could only to be imposed in circumstances where the claimant has been
given a “firm deadline for providing the information and has been subjected
to the pressure of suspension” (para.43).24
15
The Commissioner emphasised that a decision to stop someone’s
entitlement to benefit must be justified by reference to a power to revise or
supersede. That may arise as a result of the refusal of a recipient of
HB/CTB to arrange a home visit. But it must be shown that the refusal of the
home visit leads to that result.
21
DMA Regs 2001, reg 14.
Contained in Part A of the Housing Benefit and Council Tax Security Manual – (June 2005)
available on ‘dwp.gov.uk.
23 Verification Framework para 8.200-1.
24 In CH/2555/2007 Wolverhampton City Council accepted that some of its letters were generated
in advance of the date they were actually issued to the claimant. The Commissioner held that
given the importance of the 4 weeks requirement the Council must give evidence of the date of
issue and not merely the date on which the letters were generated (para. 33).
22
Page 4 of 24
Recent Developments in Housing Benefit Law
26th March 2008
16
In CH/4390/2003, the claimant objected to the LA carrying out a verification
visit.25 The claimant and her spouse refused to sign a statement about the
relevant facts. The Commissioner regarded the appeal as a gross
overreaction by the claimants to the requests made of them. The
Commissioner dismissed the appeal stating that there was a public interest
in the LA confirming entitlement by means of a home visit.
17
CH/2555/2007 considered whether a LA is entitled to supersede entitlement
to benefit where the claimant refuses a home visit. The LA was trying to
establish the claimant’s income and capital resources. It had written two
different letters to her on the same day; one asking for information and
accepting that she lived at the address and the other insisting on a home
visit to verify that she was living at the address. The Commissioner held
that the LA had been wrong to assert that it could revise or supersede the
claimant’s entitlement to benefit simply because she did not agree to a
home visit. This was too wide an interpretation of the Commissioner’s
decision in CH/4390/2006 and was not justified by any of the provisions in
the DMA permitting revision or supersession (para. 47). If the requirement
for a visit is challenged in an individual case, the tribunal must go beyond
general policy points into the evidence to see whether the requested visit
was a reasonable information requirement in that case, and then whether
any refusal to provide information left a LA in a position where that authority
could properly, on the facts as it knew them, establish grounds to supersede
an award. As in all decisions to take away a benefit, the burden of proof is
on the LA to establish that its decision was justified. The LA has to show
that a reasonable information requirement was not satisfied by the refusal of
a visit (para. 48).
18
The claimant in CH/402/2006 argued that as he was in receipt of State
Pension Credit, he was not required to complete an intervention form. He
argued that he was being asked to provide more information than was
specified in the Verification Framework. The Commissioner said the VF
merely provided guidance; it was not itself legislation. The LA had acted in
accordance with the information requirement and the questions asked on
25
See HB/CTB Security Manual (2005): Visits, 6-6.501.
Page 5 of 24
Recent Developments in Housing Benefit Law
26th March 2008
the review form were few and focused on the key elements of entitlement.
The appeal was therefore dismissed.
2.
Non-dependant deduction – (HB Regs 2006, regs 3(1), 70, 74)
19
The amount of HB paid each week can be reduced for each non-dependant
living in the claimant’s home. Non-dependants are usually adult sons and
daughters or other relatives and friends who live in the claimant’s
household. According to official guidance, “The claimant is responsible for
providing relevant information. If no, or inadequate, information about the
non-dependant’s gross income is provided, then the highest deduction
should be made.” (see HB Guidance Manual para 5.550).
20
In CH/48/2006, the claimant appealed against the local authority’s decision
to implement the highest level of non-dependant deduction due to the
absence of evidence of the claimant’s daughter’s earnings. The daughter
was 19 years of age and worked part-time for 20 hours per week in a
clothes shop. The father estimated that his daughter earned about £96 per
week but conceded that she worked some overtime. The Commissioner
said that while the LA was entitled to make adverse inferences in the
absence of evidence, its decision had to be based on “some sense of
reality”. The daughter was working in a junior role in an occupation which
was likely to be paying the minimum wage. To treat the daughter as having
weekly earnings in excess of £322 (the highest rate of the NDD) was to lose
touch with reality. The Commissioner concluded that the daughter was
likely to be earning less than £150 per week and imposed a deduction at the
second lowest rate.
21
Following the ruling in CH/48/2006, LAs should no longer follow the
guidance that where inadequate information is given about the nondependant’s gross income, then the highest deduction should always be
made. See HB/CTB General Information Bulletin G8/2007.
22
In CH/4004/2004, the claimant declared that her cousin, who was homeless
and penniless, stayed with her for 2 months, sleeping on the sofa. The LA
imposed a NDD. Allowing the claimant’s appeal, the Commissioner held
Page 6 of 24
Recent Developments in Housing Benefit Law
26th March 2008
that given the nature of the arrangement with the cousin, no reasonable
tribunal could have held that he was “normally” residing with the claimant.
3
Temporary absence (HB Regs 2006, reg 7)
23
It is a condition of entitlement that the claimant occupies the relevant
property as his or her home.26 Regulations provide that a claimant can
continue to be paid HB on their home for up to 13 weeks if the absence is
temporary. Some claimants can be paid under the “52 weeks rule’ but only
if they come within a list of prescribed categories.27
24
The question of whether or not someone is likely to be away for longer than
13 weeks is to be considered prospectively, having regard to the date the
claimant leaves their home (not the date of claim).28 The assessment of
whether or not the period of absence is likely to exceed 13 weeks has to be
made on a week-by-week basis. If it becomes likely that the period of
absence will exceed 13 weeks then this will amount to a change of
circumstances and entitlement to benefit will end at that point. The test of
the likely period of absence is an objective one. The claimant’s view about
the likely length of the absence is simply a factor to be taken into account,
along with all the other evidence.29 Where the claimant is moving
backwards and forwards between two properties and the claimant returns
and occupies the dwelling as a home, even for a short period, e.g. 24 hours,
the allowable period of temporary absence starts again.30
25
R(H) 9/05 deals with the situation where the claimant was in the process of
moving into a new property but the LA queried whether the claimant fulfilled
the occupation requirement. The claimant became liable for rent in
February 2004 on a flat which had been specially adapted due to her
disability. The claimant’s furniture had been moved in but she did not
26
Social Security Contributions and Benefits Act 1992, s130 and HB Regs 2006, reg 7.
HB Regs 2006, reg 7, e.g. undergoing medical treatment. Note there is provision to pay HB on
two properties where the tenant is fleeing violence.
28 CH/1237/2004 para. 12, and applied to prisoners on remand in CSH/0499/2006.
29 CH/1237/2004, followed in CH/2638/2006, para 18 where the Commissioner held that the
tribunal had been wrong to treat a prisoner’s own prediction of his release date as determinative.
30 See R v Penwith DC ex p Burt (1990) 22 HLR 292 at 296, QBD, and HB Guidance Manual
para 3.170.
27
Page 7 of 24
Recent Developments in Housing Benefit Law
26th March 2008
physically go to the flat until some months later because she had to be
admitted to hospital at short notice. The Deputy Commissioner held that as
a matter of general law, occupation did not require the physical presence of
the tenant where the property is under their control.31
R(H) 9/05 is
therefore authority for the proposition that the word “normally” as used in
regulation 7 does not refer to the length of time the claimant is present in the
property; its role within the provision is to help resolve cases where the
claimant might be regarded as living in more than one property.
26
In R(H) 4/07 the claimant, who suffered from anxiety and depression, had
been living in a property as part of a planned resettlement plan after being
homeless. A new property had been found for him by the Salvation Army.
However, the property had recently been vacated and required carpeting,
wallpapering and redecoration. He applied for housing benefit with effect
from the commencement of the tenancy but delayed moving into the
property for several weeks to allow the necessary work to be carried out. In
the meantime, the claimant continued to occupy his existing property and to
receive HB in respect of that property. The regulations provided that benefit
could be paid on two homes where the delay in moving into the new
dwelling was reasonable and necessary in order to adapt that dwelling to
meet the disablement needs of that person. Following CH/1363/2006,
“adapting” a building should be interpreted as meaning altering the fabric or
structure of the building in order to meet a disablement need (including such
matters as the provision of fixed handrails, raised lavatories or widened
doors). The Commissioner held that redecoration and carpeting did not
constitute “adaptations” for the purpose of the temporary absence provision
in reg. 7(8)(c)(i). The claimant was not therefore entitled to HB until the date
he moved into the new property.
When the Deputy Commissioner refers to the “general law” he must have had in mind the case
law that developed around protected tenants under the Rent Act 1997 and the phrase “occupies
the dwelling-house as his residence (s.2(1)(a)) which was later applied to the 1985 and the 1988
Housing Acts. The case law on the tenancy condition has established that the tenant will
continue to be treated as in occupation as long as there is (a) an intention to return (animus
revertendi) and (b) a visible state of affairs of occupation (corpus possessions - body of
possession). For a summary of that case law see: chapter 14 of Defending Possession
Proceedings 6th edn Madge et al (LAG), the commentary in the ‘Green Book’, 2007 on the Rent
Act 1977, s 2, III L&T [69.5] at page 5529 and in the section on ‘Key Issues’ in the Encyclopaedia
of Housing Law at paras 007-010.
31
Page 8 of 24
Recent Developments in Housing Benefit Law
26th March 2008
27
Secretary of State for Work and Pensions v Selby DC & Bowman [2006]
EWCA Civ 271 (R(H) 4/06).has finally resolved the question whether
entitlement to HB can continue during a temporary absence once a notice to
quit has been given by the claimant. The claimant received HB on his
council flat during a trial period in a care home. The claimant decided to
stay and gave notice to quit his council flat. The LA refused to pay HB
during the notice period as the claimant was no longer intending to return to
his home. The Court held that the deeming provision continued to apply,
despite the fact that the claimant manifested the intention of not returning to
it. So long as the conditions were met at the start of the 13 weeks’ period
then the claimant would remain entitled up to the expiration of any notice to
quit or for the whole 13 weeks.
28
In CH/1786/2005 the Commissioner considered a case where the claimant
was in receipt of HB for his flat in London but had been staying in Kent with
his sister where he worked part-time as a cleaner. He became seriously ill
and consulted a GP in Kent. Over a period of three years he was admitted
to hospital in Kent eight times, four times for investigation and four times for
surgery. However, the longest period the claimant spent away in Kent was
no more than a month and he continued to stay at his flat in London for six
nights a month, on average. The LA terminated benefit on the grounds that
his normal home was in Kent. A tribunal allowed the claimant’s appeal.
The LA appealed to a Commissioner stating that the evidence available in
this case indicated strongly that the claimant’s centre of interest did not lie at
the London flat any longer but at his sister’s dwelling in Kent. The LA
referred to a passage in the CPAG’s handbook of Housing Benefit and
Council Tax Legislation (currently in the 18th edition, pages 208-9),
identifying a person’s “centre of interests” as a material factor in determining
the dwelling normally occupied as his or her home.
29
The Commissioner rejected the LA’s appeal and held that in a case where
the tribunal is asked to determine whether the claimant had been normally
occupying a dwelling as his or her home the tribunal should not focus on the
provisions on occupation alone but should have regard to the provisions
which hold that once normal occupation has been established it may be
taken to continue, despite a period of temporary absence. What was
required was an overall assessment of the evidence to determine where a
Page 9 of 24
Recent Developments in Housing Benefit Law
26th March 2008
person is truly making his or her normal home. It was a mistake to try and
divide what was essentially a single factual question into a series of
individual tests for particular factors such as the “centre of interest”, (as the
commentary to the CPAG Legislation Book appeared to do).
4
National Insurance number requirement (SSAA 92, s1(1A) and
1(1B))
30
The requirement that the claimant and their partner have a national
insurance number (known as the NINO requirement) is a precondition of
making a claim for HB.32 The claimant and their partner must either (i) have
provided a NI number or (ii) given information to enable a number to be
ascertained or (iii) applied for a NI number.
31
In Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ
882 (R(H) 7/06) the Court of Appeal held that the partner of a claimant is
always required to satisfy the NINO requirement even where the partner is
subject to immigration control and may have no recourse to public funds.33
In these circumstances, the LA should request NINO information from the
DWP using form DCI1 LA (see HB Guidance Manual – Part D para 1.218).
32
In 2006 a “right to work” condition was introduced34 where the reason for the
NI number application is for employment.35 According to guidance issued to
Jobcentre Plus staff,36 where the request for a NI Number is in relation to a
claim for benefit administered by a LA, it should be treated as a ‘benefit
inspired application’ so that the right to work condition does not apply.37
32
1(1A) and 1(1B) of the Social Security Administration Act 1992, s1(1A) and 1(1B), inserted by
the Social Security Administration (Fraud) Act 1997, s 19.
33 See Decision-Maker’s Guidance (‘DMG’) Letter 13/06 on the effect of the judgement.
34 The 2001 Regulations were amended from 11 December 2006 by the Social Security (National
Insurance Numbers) Amendment Regulations 2006 (SI 2006/2897), and provide that an
application for a NINO shall be accompanied with a copy of an immigration document which
shows the applicant has a right to work in the UK (reg 2(a)).
35 SNAP01A para 105 at page 28.
36 Secure National Insurance Number Application Process (SNAP) downloadable from
www.dwp.gov.uk
37 SNAP01A - Initial Action, para 88, page 25.
Page 10 of 24
Recent Developments in Housing Benefit Law
26th March 2008
33
If a refusal to allocate a NINO has resulted in a decision to terminate or
refuse HB, then both issues can be raised in an appeal to a tribunal
(CIS/345/2003 and CH/1231/2004). On appeal, the tribunal can decide for
itself whether the information provided with the NINO application was
sufficient to enable a NINO to be allocated (or if the LA has applied the
information requirement correctly).38
5
Contrived tenancies (HB Regs 2006, reg 9)
(i) - “Not on a commercial basis” (reg 9(1)(a))
34
A claimant will be treated as not liable to pay rent and therefore excluded
from any HB if the agreement is “not on a commercial basis”.
35
The leading decision on this issue is R(H) 3/03. It should be borne in mind
that the landlord may make a commercial decision not to implement the
term to pay rent until Housing Benefit has been awarded.39 CH/3586/2005
paras 34-39 and CH/3497/2005 paras 31-34 provide useful summaries of
the case law on this point.
36
See CH/3282/2006 for a recent example where the reasons given by the
tribunal for its finding that the agreement was not on a commercial basis
were held to be inadequate, despite the well recognised difficulties for
decision makers in giving reasons on this issue (para. 15).
(i) - “Taking advantage of the scheme” (reg 9(1)(l))
37
A claimant will be excluded from entitlement to HB if the LA is satisfied that
the liability was created to take advantage of the HB Scheme. According to
case law, there is no presumption of abuse in Reg 9(1)(l), even when the
parties are close family members;40 Once it is established that the claimant
See DWP Leaflet Applying for a National Insurance Number” which explains in outline how to
apply, and what information they will expect from the claimant.
39 See CH 3586 2005 paras 34-39 and CH 3497 2005 paras 31-34 for useful summaries of the
case law on this point.
40 R v Pool Borough Council ex p Ross [1995] 28 HLR 351 QBD at pages 358-9 and R(H) 1/03
para 18.5.
38
Page 11 of 24
Recent Developments in Housing Benefit Law
26th March 2008
is under a liability to make payments, then the burden of proof is on the
authority to show some grounds for believing that abuse exists;41
38
In CH/039/2007 the LA alleged that an arrangement to provide supported
housing had been created to take advantage of the HB scheme. The
Commissioner held that if the tenancy was on a commercial basis then the
fact that the landlord entered into the arrangement with the view and hope
of getting Housing Benefit and does not axiomatically mean that it was
"created" to "take advantage" of the scheme. The fact that the landlord
would make a profit from the rent charged was not necessarily evidence of
abuse.
6
Persons from abroad – EEA nationals (HB Regs 2006, reg 10)
39
On 1 May 2004 the definition of a person from abroad in the HB regulations
was amended so that no person could be treated as habitually resident if
they did not also have a right of residence in the UK. The test was aimed at
A8 nationals but affects all EEA nationals who are unable to work due to
sickness, disability or childcare responsibilities, unless they show that they
have a right to reside as a worker or are a family member of a worker (or
are self-sufficient).
40
In Abdirahman v Secretary of State for Work and Pensions [2007]
EWCA Civ 657, [2007] 4 All ER 882 (reported as R(IS) 8/07 the Court of
Appeal considered the position of newly-arrived EEA nationals who had
never worked in the UK. The Court accepted that the claimants had entered
the UK lawfully and were entitled to reside here lawfully unless and until
action was taken by the Home Office to remove them. The Court
nevertheless held that their lawful presence was not equivalent to them
having a right to reside in the UK.5 It also rejected the argument that the
claimants could acquire a right of residence direct from Community law as
citizens of the Union.6 The effect of the decision is that EEA nationals who
are not workers or otherwise economically self-sufficient cannot rely on
41
R v Solihull MBC Housing Benefit Review Board ex p. Simpson (1994) 26 HLR 370, at page
378.
Page 12 of 24
Recent Developments in Housing Benefit Law
26th March 2008
either Article 18 or Article 12 of the EC Treaty to establish a right to reside
or entitlement to benefit (applied in CH/1840/2007).
41
Legal challenges to the right to reside and eligibility for HB post-Abdirahman
has concentrated (i) on worker status, (ii) whether the claimant has a
derived right to reside as a family member of an EU worker and (iii) whether
a claimant who has a child in education can retain a right to reside in
accordance with the principles established in Baumbast (Case C-413/99).
The case law to-date has been largely negative.
42
CIS/3182/2005 held that a claimant who gives up work in the later stages of
pregnancy cannot rely on the EEA Regulations, reg. 5, to retain the status of
a worker because the incapacity contemplated by that provision did not
cover those who temporarily cease to be economically active because they
need to look after children; see also CIS/4010/2005 and CIS/731/2007.
43
A controversial interpretation was given to the EU meaning of a ‘worker’ in
CH/3314/2005. A Dutch national, who was a lone parent, said she could
work for 2 to 3 hours a day in the morning while her children were at school
and nursery. The Commissioner said there was nothing in Kempf v.
Staatssecretaris van Justice (C-139/85) which precluded a national court
from considering whether work is “effective” by reference to the extent to
which the claimant has recourse to social assistance. He held that the
claimant could only be regarded as retaining her status as a “worker” if she
was seeking work that, with working tax credit, would produce an income
equivalent to income support purposes, plus her rent. As the hours she was
prepared to work and the range of work being sought were very narrow,
(and did not qualify her for working tax credits) she could not be regarded as
having a reasonable prospect of securing “effective” employment. The
Commissioner’s analysis appears to be inconsistent with Kempf as it would
have the effect of imposing a more stringent requirement on work-seekers
compared to those actually in part-time employment who can receive HB
towards their rent based on a low income.
44
A Commissioner refused to apply Baumbast to the facts in CIS/1121/2007;
see also CIS/3441/2006.
Page 13 of 24
Recent Developments in Housing Benefit Law
26th March 2008
45
It has also been argued that the application of the ‘right to reside’ test is
disproportionate when applied to EU citizens who have been living in the UK
for a significant period42 but who are not economically active at the time
they claim income support. The Commissioner’s response has been to hold
that Article 18(1) and the principle of proportionality could not confer a right
of residence except where it could be shown there was a lacuna (gap) in the
new Directive 2004/38/EC. The right to permanent residence after five
years introduced in the new Directive set the benchmark against which any
assessment of proportionality should be made, i.e. there will be no right to
reside for five years unless the case is so exceptional that the Council of
Europe did not consider it.43
7
The cohabitation rule (SSCBA 1992, s 137)
46
The ‘cohabitation rule’ has been part of social security legislation since the
days of supplementary benefit. The term ‘cohabitation’ was replaced by
‘living together as husband and wife’ (LTAHAW) and since the coming into
force of the Civil Partnership Act 2004 by the term ‘living together as
husband and wife or as civil partners’ (LTAHAW/CP).
47
HB/CTB Circular A16/2005 gives guidance on the impact of Civil
Partnerships on HB/CTB and when existing claimants who are living
together as if they were civil partners are required to notify the benefit
service. The Guidance suggests three dates from which the new rule
should apply to an existing claimant (i) when the Pension Service /
Jobcentre Plus make a decision in relation to the passporting benefits; (ii)
the claimant reports a change of circumstances and (iii) there is an
intervention by the benefit service under the current reviews procedure.
The decision-maker is told to assume that it is reasonable for the customer
42
In CIS/4010/2006, for a period of one year, in CIS/2358/2006 the claimant had been in the UK
for three and a half years. The Commissioner has granted leave to appeal to the court of appeal
in the latter where it will be cited as Kacsmarek v SSWP.
43 CIS/408/2006 is a case where the Commissioner held that there was a lacuna – the claimant
was a worker who cease work to care for her spouse, who is a not a citizen of the Union, who
was diagnosed with bowel cancer but was able to return to work after treatment. The
Commissioner said his analysis would not apply where the disablement and the need for care
were permanent.
Page 14 of 24
Recent Developments in Housing Benefit Law
26th March 2008
to report their circumstances at the time of the intervention, and thereby no
overpayment should be raised (for the prior period) (see paras 9-14).
Married couples – the separate household test
48
A claimant can only escape the definition of a “married couple" 44 if he and
his wife are not part of the same household. The question of whether a
husband and wife are members of the same household depends very much
on the particular circumstances of the case but in CIS/72/1994 the
Commissioner warned against placing too much weight on joint legal
liabilities. Note: decided cases on unmarried couples (such as R(SB)35/85),
where the parties' intentions in starting to live together are crucial, are not
relevant to a couple who are married. This is because in the unmarried
couple cases the existence of a shared household was not in dispute.
Cohabitees – the LTAHAW/CP test
49
The term ‘living together as if they were civil partners of each other” is not
defined in the legislation and should be given its ordinary and natural
meaning. See CIS/4156/2006 for a recent example where the Deputy
Commissioner accepted a submission that the tribunal had failed to look at
the totality of the relationship. The Deputy Commissioner held that the
tribunal’s over-reliance on a “checklist approach” meant it failed adequately
to address the more fundamental question – why were the two parties living
together?
50
In CH/1967/2007 the claimant lived in a housing association property with
his same sex partner, who was correctly treated as a non-dependant at the
time the original decision was made. There was no deduction as the
claimant was entitled to the higher rate of DLA. The claimant subsequently
wrote to his landlord to request the tenancy be put in both names and this
was agreed. The LA was sent a rent change letter in both names but did not
appreciate the reason. It was not until 2006, after a second visit to the
property, that the LA realised the claimant was only liable for half of the rent.
44
According to section 137(1) of the Social Security Contributions and Benefits Act 1992 a
"married couple" means “a man and a woman who are married to each other and are members of
the same household.”
Page 15 of 24
Recent Developments in Housing Benefit Law
26th March 2008
The LA subsequently revised their earlier decisions and asked the claimant
to repay over £4,000. The claimant appealed on the basis that he had
visited the Council at the time to notify them of the change. A tribunal found
that the visit had taken place, that the LA officer had failed to record the visit
and that the overpayment was an official error. However, the overpayment
was still recoverable as the claimant must have known he was being
overpaid.
51
The Commissioner noted that the tribunal accepted that the claimant made
the visit to the LA in 2004 to disclose the joint tenancy and to query the
effect that this would have on his entitlement to benefit. Because of its poor
record keeping, the LA was unable to show what advice it had given to the
claimant at or as result of that visit. The Commissioner held that having
made full and proper disclosure, the claimant was entitled to expect that the
LA’s subsequent assessments were correct. In view of the complexity of the
regulations and the terminology, the claimant could not reasonably have
been expected to realise the precise meanings attributed by the LA or the
regulations to terms such as “partner”, “joint tenant” and “non-dependant” or
to appreciate that the council had not in fact calculated his entitlement
correctly. The overpayment was not therefore recoverable.
8
Liability to pay rent (HB Regs 2006, reg 8)
52
The regulations give LAs the power to treat a person as liable to make
payments “to enable them to continue to live in the home.” when there is no
contractual liability on them to do.45 Note that the definition of “rent”
includes payments for “use and occupation of the dwelling".46
53
In CSHB/606/2005 the daughter of a tenant (15 yrs old) claimed Housing
Benefit when her mother’s entitlement had been withdrawn. It was held that
the daughter did not have to make payment of rent if she were to continue
to live in the house and was not entitled to an award. The approach to
liability in R(H) 5/05 applied. First, was the claimant a person who had to
make payments in respect of the dwelling? Secondly, if the answer to the
45
46
HB Regs 2006, reg 8.
HB Regs, 2006, 12(1)(d).
Page 16 of 24
Recent Developments in Housing Benefit Law
26th March 2008
first question is yes, the decision maker should go on to consider the
reasonableness of treating the claimant as liable to make payments.
54
CH/2121/2006 held that there was no minimum level of understanding on the
part of a tenant that makes a tenancy void for lack of capacity; the tenancy
was merely voidable at the tenant's option. The claimant was a severely
disabled young woman. She had been housed, along with her sister, in a
bungalow constructed in the garden of the family home. Social services had
agreed to fund the cost of the care provided for the sisters but not the cost
of the accommodation, which was provided by their father, as the landlord.
The claim for HB was disallowed on the basis that there was no liability to
pay rent (HB Regs 2006, reg 8) and the tenancy had been ‘contrived’ to
take advantage of the HB scheme (reg 9(1)(l))). A tribunal dismissed the
claimant’s appeal as it doubted the claimant’s capacity to understand what
had been contracted for. The Commissioner held that the tribunal had been
wrong to decide the case on the basis that the claimant’s understanding
was so limited that she was not able to enter into even a voidable tenancy.
According to the authorities, even if a party to a contract does lack sufficient
understanding to have capacity, and the other party knows that, the contract is
not void, but is merely voidable at the option of the affected party. There is no
minimum level of understanding below which a contract is void. On that basis,
since the claimant did not wish to avoid the tenancy, there would have been a
legal liability to make payments under reg 8. The case was remitted to a new
tribunal to consider the contrived tenancy issue
9
55
Overpayments (SSAA 92, s75 HB Regs 2006, regs 99-100)
Unlike DWP benefits, all overpayments of HB are, in principle, recoverable
unless the overpayment was caused by “official error” and the claimant did
not materially contribute to that error and s/he could not reasonably have
realised that s/he was being overpaid.
(i) - Test for Recovery (HB Regs 2006, reg 99)
56
The test for recovery of an overpayment of HB can be broken down into the
following elements:
Page 17 of 24
Recent Developments in Housing Benefit Law
26th March 2008
-
Has there been an official error?
If yes, what was the substantive cause of the overpayment; the official
error or some act or omission on the part of the claimant?
Did the cause of the overpayment change during the period of the
overpayment?
Could the claimant reasonably have been expected to realise it was an
overpayment on each occasion that a payment was received or notified
to him or her?
-
57
The leading case on whether an overpayment is caused by official error is R
(on the application of Sier) v Cambridge CC Housing Benefit Review
Board [2001] EWCA Civ 1523.47 LAs have tended to interpret Sier to mean
that if there has been any failure to act on the part of the claimant to declare
a material fact or notify the authority of a change of circumstances, then the
overpayment will be recoverable, regardless of the existence of an official
error. Subsequent case law indicates that where the overpayment is due to
both official error and an action or omission on the part of the claimant then
Seir requires the decision-maker to make a common-sense judgment on
which is the substantial (or more potent) cause of the overpayment.
58
Overpayments generate a large proportion of cases. These can be placed
into the following categories:
-
Cases where the facts did not amount to an “official error”;48
Cases in which an official error was established but the claimant had
contributed to the error;49
Cases in which official error was the cause of overpayment for an initial
period but the claimant’s action or inaction was the cause in the
subsequent period;50
47
The claimant had been overpaid HB by the local authority in Cambridge as it had not been
aware that the claimant had taken out a second tenancy in London and had claimed HB on it too.
The court rejected the argument on causation and held that the Benefit Agency’s failure to send
form NHB8 to Cambridge City Council had not “caused” the overpayment even if that failure did
amount to an official error.
48 R(H) 1/04; R(H) 2/04; CH/69/2003; CH/412/2003 and CH/687/2006.
49 CH/2899/2006.
50 CH/3761/2005 and CH/3083/2005.
Page 18 of 24
Recent Developments in Housing Benefit Law
26th March 2008
-
-
Cases in which official error was the primary cause of the
overpayment;51
Cases where there was an official error but the focus was on whether
the claimant could have been expected to reasonably realise that they
were being overpaid;52
Cases on the “reasonably realise” test.53
59
The following cases illustrate how fact-sensitive the application of the legal
test for overpayments can be. In CH/69/2003 the claimant was overpaid HB
because his Industrial Disablement Benefit (IDB) had not been taken into
account. The claimant had failed to tick the relevant box on the HB claim
form to indicate receipt of the benefit. The claimant argued that the LA
should not have processed his claim without obtaining his bank statements
and checking whether they showed regular credits representing payments
of his DLA and IDB. The entries on the bank statement, however, were
unclear. The Commissioner decided that the LA had been entitled to act on
the basis that the bank statement had been produced as evidence of
capital, rather than income from benefits. There had been no official error
as there was no duty on the authority to analysis the payments into the bank
account, just in case they revealed undisclosed income.
60
The above can be contrasted with CH/602/2004 in which the claimant
omitted to mention receipt of disablement benefit on the claim form but
provided bank statements which clearly indicated that he was in receipt of
industrial injuries benefit. The Commissioner held that any overpayment
was due to the LA not noting the payments in the bank statements as
income. The case could be distinguished from CH/69/2003 as the industrial
injuries benefit was clearly identified on the statements supplied to the local
authority.
51
CH/602/2004; CH/1780/2005; CH/277/2006; CH/530/2006 and CH/3925/2006.
CH/1675/2005; CH/2479/2006; CH/361/2004; CH/858/2006; CH/2935/2005 CH/866/2006 and
CH/3309/06.
53 CH/2554/2002; CH/288/2002M CH/609/2004; CH/2935/2005 and CH/2713/2006. The case
law has emphasised that the test to be applied is not an objective one. It is a test of whether the
claimant could have realised that the HB they were receiving definitely contained some element
of overpayment. Normally there is no scope for imputing knowledge of the HB scheme to the
claimant.
52
Page 19 of 24
Recent Developments in Housing Benefit Law
26th March 2008
61
In CH/3925/2006, the Commissioner said that the ruling in CH/69/2003
should not be taken as supporting any sort of general rule that a LA will not
make a mistake if it fails to notice evidence in a document produced for one
purpose. The LA must consider all of the evidence. Whether the failure to
take evidence into account will amount to an official error will depend upon
the particular circumstances of the case.54
(ii) - Underlying entitlement (HB Regs 2006, reg 104)
62
In CH/360/2006 the Commissioner rejected a submission by the LA that
evidence of a claimant’s underlying entitlement could not be considered on
appeal if the claimant had failed to supply that information in response to a
request for further information. The decision contains detailed guidance on
how regulation 104 works.
(iii) The need for a valid overpayment decision (HB Regs 2006, reg 99)
63
A significant omission in an overpayment decision can render it invalid and
of no legal effect.55
64
The claimant’s lack of entitlement to any HB must be determined prior to
any decision that there is a recoverable overpayment.56
On appeal, the
tribunal must be satisfied that there is adequate evidence to warrant a finding
that
the decision-maker
has carried
out
the appropriate revision or
supersession of the claimant’s entitlement in compliance with the relevant legal
requirement.57 Moreover, where HB is paid to more than one person, e.g. in
54
The claimant in CH/3925/2006 also argued that the LA had been dilatory in suspending the
claim, thereby unnecessarily increasing the overpayment. The LA’s delay in taking action to put
right the consequences of its earlier official errors meant that those earlier official errors retained
their causative effect. There was no evidence of the claimant having been told something
specific in the course of her dealings with the LA to alert her to a probability that her current
awards were wrong (para 25).
55 R(SB) 7/91, para. 4.
56 CH/3439/2004 para 9.
57 R(IS) 2/96 para 8.
Page 20 of 24
Recent Developments in Housing Benefit Law
26th March 2008
the form of a rent allowance to non-LA tenants, then the recoverability
decision must be issued to both the claimant and the landlord.58
65
The appeal tribunal has the power to cure defects within the form of the
decision59 it is arguable that this does not extent to defects in an
overpayment recovery decision as this is so fundamental that they cannot
be corrected in the same way.60 As the decision maker to have made a
proper decision altering entitlement for the period of the alleged overpayment, at
the date on which the overpayment recoverability decision is made the deficiency
cannot be made good retrospectively.61
66
Note that procedural deficiencies in the notification letter62 may be regarded
as cured once the case goes to an appeal tribunal,63 unless the flaws are so
fundamental that the LA has failed to make a valid determination so as to
give the tribunal jurisdiction to determine the recoverability issues. 64
10
67
Human Rights
Article 8 of the European Convention on Human Rights (‘ECHR’) does not,
however, recognise a right to be provided with a home or to provide
someone with a specific type of accommodation.65 There may, however, be
circumstances where the State’s refusal to take steps to assist in housing
problems could amount to a breach of Article 8.66
58
R(H) 6/06, para 60.
R(IB) 2/04 paras. 24-26.
60 See CH/181/2006 para. 12. - where no valid supersession decision had been made before the
overpayment/recoverability decision this could not be cured on appeal.
61 This would be a breach of CSPSSA 2000, Sch 7 para. 6(9)(b) that a tribunal can only have
regard to circumstances obtaining at the time of the decision under appeal. See CPC/3743/2006
para. 22.
62 HB Regs 2006, reg 90 & Sch 7.
63 R(H) 3 /04 paras 76-77 and CH/1395/2006.
64 CH/1388/2006 paras. 42-47 and CH/1395/2006.
65 Chapman v UK (Application 27238/95).
66 E.g. where an individual suffering from a serious illness (Marzari v Italy, App. No 36448/97).
59
Page 21 of 24
Recent Developments in Housing Benefit Law
26th March 2008
68
There are two conflicting lines of authority on the question of whether HB
comes within the ambit of Article 8. The Court of Appeal in Langley v
Bradford Metropolitan District Council and another [2004] EWCA Civ
1343 (R(H) 6/05) held, that the HB scheme as a whole lies within Article 8
but the particular provision being challenged (an anti-abuse provision
excluding ex-partners of landlords) did not (para. 72).
69
Human rights challenges in the field of social security have usually been in
terms of whether the relevant regulation served a legitimate purpose in the
vast majority of cases rather than whether the rule went further than was
necessary, given its impact on a particular individual. (para. 52). R (Hook)
v Social Security Commissioner and Secretary of State for Work and
Pensions [2007] EWHC 1705 (Admin) (reported as R(IS) 7/07) is the first
social security case in which the human rights argument has been
formulated in terms of the impact on the claimant’s Article 8 rights, in the
light of the guidance in Huang v the Secretary of State for the Home
Department [2007] UKHL 11. Mr Hook’s judicial review was unsuccessful
so the Court was not required to decide whether a social security decision
could amount to a lack of respect for family life or respect for home or
interference with family life. The Court nevertheless accepted that this was
a valid proposition of law (paras. 33, 35) and Nicholas Blake QC (acting as
a Deputy High Court Judge) went so far as to state that Mr Hook’s claim
was “highly arguable” given the particular combination of factors in his case
(para. 31).
11-
70
Other Decisions in Brief
The following decisions may also be of interest to practitioners.
-
Mote v Secretary of State for Work and Pensions and Chichester
District Council [2007] EWCA Civ 1324 considered the issue whether
a tribunal should adjourn, pending criminal proceedings.
-
Secretary of State for Work and Pensions v Balding [2007] EWCA
Civ 1327 upheld the decision of the High Court [2007] EWHC 759
(Admin) that if a decision to recover an overpayment had been made
prior to the date of bankruptcy, the liability that arose under SSAA
1992, s.71(1) to repay the overpayment was a “bankruptcy debt” within
Page 22 of 24
Recent Developments in Housing Benefit Law
26th March 2008
the meaning of s.382 of the Insolvency Act 1986 and could not be
recovered by the Secretary of State. This should be contrasted with
the situation in Steel v Birmingham City Council [2006] EWCA Civ
1824, where the decision to recover the overpayment had been made
after the date of bankruptcy.
-
R (on the application of Hall) v Chichester District Council [2007]
EWHC 168 (Admin) – a LA has no power to pay benefit when payment
had been suspended pending an appeal to a tribunal/Commissioner.
-
R(H) 1/07 – a tribunal’s jurisdiction to hear an appeal does not depend
on a referral by the LA and so long as the appeal is valid (i.e. the
conditions in reg. 20(1) DMA 2001 are satisfied), the tribunal had
jurisdiction to deal with any appeal. The LA’s function was essentially
administrative. If a LA refused to refer an appeal to the Tribunal
Service there may be circumstances in which the claimant is justified in
sending the appeal directly to the district chair (para. 34).
-
R(H) 8/07 - whether a freeholder of a dwelling subject to a long lease
at a low rent is the "owner" of the dwelling
-
R(H) 3/07 - whether a long tenancy is created by a lease not under
seal.
-
CH/3586/2005 – whether there was a tenancy for life: formalities under
the Law of Property Act 1925.
-
CH/3083/2005 - overpayment caused by official error - DWP failed to
notify the LA of claimant's claim for extended payments of housing
benefit.
-
CH/3497/2005 - delay by LA in referring appeals to the Appeals
Service contrary to Article 6 (paras. 2-6).
-
CH/4366/2006 whether evidence obtained by the LA from a credit
scoring agency inadmissible because it was in breach of the Data
Protection Act 1998.
-
CH/4115/2006 - entitlement to HB does not automatically cease on the
cessation of entitlement to JSA where the reason for termination of
JSA is non-attendance for signing on as this does not come within any
of the circumstances set out in the HB Regs 2006, reg 77 (previously
65A).
Page 23 of 24
Recent Developments in Housing Benefit Law
26th March 2008
-
CH/3736/2006 - except in the circumstances contemplated by reg 77
of the HB Regulations (previously 65A), the cessation of IS or JSA(IB)
is an ordinary change of circumstances that must be assessed like any
other: it does not have the effect of automatically ending entitlement to
HB (para. 21).
© Desmond Rutledge
Garden Court Chambers
26 March 2008
Page 24 of 24