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Neutral Citation Number: 2008 26
Reported Number: R(H)5/09
File Number: CH 1895 2008
Appellant: London Borough of Hackney
Respondent: GA
Judge/Commissioner: Judge E. Jacobs
Date Of Decision: 01/12/2008
Date Added: 17/12/2008
Main Category: Housing and council tax benefits
Main Subcategory: occupation of the home, two homes and temporary absence
Secondary Category:
Secondary Subcategory:
Notes: Housing benefit – dwelling occupied as the home – whether two tenancies on different properties can constitute a single dwelling The claimant, who had a large family, rented two adjacent flats. One was rented from the freehold owner, the other from a tenant. The local authority decided that, regardless of who was the immediate landlord, separate flats could not constitute a single dwelling and refused to award either housing benefit or council tax benefit in respect of the second flat. The claimant appealed to the First-tier Tribunal, which decided that the two flats were in practical terms one dwelling occupied as the claimant's home. The local authority appealed against the tribunal's decision in respect of housing benefit, but did not pursue the appeal in respect of council tax benefit, because the two flats had been rebanded as a single hereditament for council tax purposes. The local authority argued that a claimant who was occupying two dwellings was only entitled to housing benefit under 7(6)(c) of the Housing Benefit Regulations 2006, and that, as that provision applied only if the local (housing) authority had housed the claimant in separate dwellings, it was impossible for a claimant to qualify for housing benefit if the tenancies were privately arranged. Held, dismissing the appeal, that: 1. in Secretary of State for Work and Pensions v Miah [2003] EWCA Civ 1111, reported as R(JSA) 9/03, it had been held that “dwelling occupied as the home” could apply to two dwellings in the context of income-based jobseeker’s allowance and although that case was not a binding authority on the interpretation of housing benefit legislation, it was authority that it is permissible in appropriate circumstances to take a functional approach (paragraph 22); 2. “dwelling” is an ordinary word whose general meaning is well understood and therefore its meaning in context is that to be ascribed to the intention of the notional legislator (Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929, also reported as R(DLA) 7/03, followed) (paragraph 29); 3. housing benefit legislation is concerned with the economic substance of an arrangement rather than with the precise legal form and it was appropriate in that context to take account of the reality of the claimant’s living arrangements and not place too much emphasis on the legal structure (paragraph 31); 4. the single question of fact for the tribunal in applying the words “a dwelling in Great Britain which he occupies as his home” was the extent of the dwelling occupied by the claimant, and the tribunal's finding that the claimant’s dwelling consisted of both flats was not perverse (paragraph 34); 5. on that finding, no issue arose on regulation 7(6)(c) because the claimant was not occupying separate dwellings (paragraph 35).
Decision(s) to Download: R(H)_5_09_bv.doc R(H)_5_09_bv.doc