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Neutral Citation Number:	2014 UKUT 36 AAC
Reported Number:
File Number:	CH 2067 2012
Appellant:	JS
Respondent:	SSWP and Cheshire West and Chester B.C. (HB)
Judge/Commissioner:	Judge S. Wright
Date Of Decision:	23/01/2014
Date Added:	13/02/2014
Main Category:	Housing and council tax benefits
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2014] AACR 26. Housing benefit and council tax benefit – proper meaning of phrase “has the exclusive use” for housing benefit purposes The appellant and his former partner were joint tenants of a two bedroom property which also included a living room, two bathrooms and a kitchen. Following the appellant’s claim for housing benefit the council eventually decided he was maintaining a separate household from his former partner and that they were not a couple. However, it decided that benefit had to be assessed on the basis that it was one bedroom shared accommodation, as he and his former partner shared a kitchen. The First-tier Tribunal (F-tT) dismissed the appellant’s appeal on the ground that he did not have a legal right to exclude another joint tenant under the tenancy: AA v Chesterfield Borough Council and Secretary of State for Work and Pensions (HB) [2011] UKUT 156 (AAC). The appellant appealed against that decision and the issue before the Upper Tribunal (UT) was the meaning of the phrase “has the exclusive use” in regulation 13D(2)(b) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006: whether it meant rooms the appellant had sole use of and could practically control, or rooms from which he had a legal right to exclude others. Held, dismissing the appeal, that: 1. in the absence of any statutory definition, the correct starting point in determining the meaning of the phrase “exclusive use” in regulation 13D(2)(b) of the 2006 Regulations was to identify what it meant in its statutory context: see Lee-Verhulst (Investments) Ltd v Harwood Trust and another [1973] 1 QB 204 (CA) (paragraphs 22 to 24). That included the wider context of the statutory scheme as a whole (per R v Swale Borough Council ex parte Marchant [2000] 1 FLR 246 (CA)), which included the relevant terms of the Rent Officers (Housing Benefit Functions) Order 1997 (paragraphs 26 to 27); 2. housing benefit and rent officers are not concerned with ascertaining how a particular dwelling was actually being used but with what the rental levels were under the terms of the tenancy agreements. The expressions used in paragraph 1 to Schedule 3B to the 1997 Order, and in particular the phrase “exclusive use”, must therefore be read in the same way as the same expression in regulation 13D(2) of the 2006 Regulations, given the express and intimate linkage between them (paragraphs 28 and 29). If that was not the case and the appellant’s argument was correct then it would have the odd consequence that the rent officer would need to identify what the factual state of affairs was in each dwelling, notwithstanding what the tenancy agreement may provide for, when there was no statutory machinery empowering him to carry out such enquiries. Moreover, it would at least sit oddly with, if not contrary to, the requirement in paragraph 1(1)(a) of Schedule 3B to the 1997 Order for consideration to be given to whether “the tenancy provides for” shared use of rooms. The use of this phrase in the statutory scheme was a very powerful indicator that “exclusive use” meant the legal entitlement to exclusive use of the room or rooms (paragraphs 31 and 32); 3. the approach adopted by the UT in determining the meaning of “exclusive use”, in AA v Chesterfield Borough Council and Secretary of State for Work and Pensions (HB), was approved; as was the judge’s conclusion that the phrase meant the legal right under the tenancy to exclude all others. The arguments, submitted on behalf of the appellant, for the view that “exclusive use” was a matter of fact or practice about who had sole use of the rooms were rejected (paragraphs 19 to 20, 25 to 35 and 41 to 46); 4. the position of licensees, as opposed to tenants, having “exclusive use” of rooms they had a licence to occupy was perhaps problematic, but was not sufficient to oust the conclusion that “exclusive use” meant the legal right to exclude (paragraphs 48 to 59).
Decision(s) to Download:	[2014] AACR 26bv.doc