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Neutral Citation Number:	2009 UKUT 151 AAC
Reported Number:
File Number:	CH 3079 2007
Appellant:	London Borough of Hillingdon
Respondent:	MJ
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	07/07/2009
Date Added:	02/09/2009
Main Category:	Housing and council tax benefits
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 4 Residence and presence conditions – person from abroad – whether local authority bound by decision on claim for income support or income-based JSA The claimant came to the United Kingdom in January 2006. At the time of her claim for housing benefit and council tax benefit, in September 2006, she was receiving income-based jobseeker’s allowance. The local authority contacted the Department for Work and Pensions by telephone and was told that a habitual residence test had probably not been done in relation to the claimant before jobseeker’s allowance was awarded. The local authority then interviewed the claimant and decided that she was a person from abroad and therefore not entitled to housing benefit and excluded from receiving council tax benefit. The claimant appealed to an appeal tribunal, which decided that she was entitled to housing benefit and council tax benefit, as she was in receipt of income-based jobseeker’s allowance at the date of her claim and regulation 10(3B)(k) of the Housing Benefit Regulations 2006 and regulation 7(4A)(k) of the Council Tax Benefit Regulations 2006 at the relevant time provided, for housing benefit and council tax benefit respectively, that a person who was “on” income-based jobseeker’s allowance was not a person from abroad. The local authority appealed to the Social Security Commissioner, whose functions by the time of the decision had been transferred to the Upper Tribunal. The local authority submitted that, in spite of the terms of regulation 10(3B)(k) and regulation 7(4A)(k), R(H) 9/04 was authority for the relevant local authority conducting its own investigation as to whether a claimant was habitually resident. Held, dismissing the appeal, that: 1. the terms of regulation 10(3B)(k) and regulation 7(4A)(k) clearly state that in such circumstances the claimant is not a person from abroad and any other construction would render the provisions of no effect (CH/2060/2006 cited in support) (paragraph 21); 2. the Deputy Commissioner’s remarks in R(H) 9/04 were obiter and not binding and the Deputy Commissioner had (in CIS/34/2006) recognised that he had overlooked the effect of the then equivalent of regulation 10(3B)(k) (paragraph 22); 3. where a local authority and the Department for Work and Pensions have to make parallel decisions the remarks of the Deputy Commissioner at paragraphs 38 and 39 of R(H) 9/04 accurately reflect the position, but where regulation 10(3B)(k) and regulation 7(4A)(k) apply a local authority is not allowed to treat the claimant as a person from abroad where the claimant is in receipt of income-based jobseeker’s allowance (paragraph 23); 4. however where an award of income support or income-based jobseeker’s allowance was obtained by fraud the local authority may be able to decide that there was no award from the outset (R v South Ribble BC Housing Benefit Review Board ex parte Hamilton (2001) 33 HLR 9) (paragraph 23).
Decision(s) to Download:	[2010] AACR 4 bv.doc