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Neutral Citation Number:
Reported Number: R(H)6/07
File Number: CH 3450 2006
Judge/Commissioner: Judge E. Jacobs
Date Of Decision: 22/01/2007
Date Added: 01/02/2007
Main Category: Housing and council tax benefits
Main Subcategory: liability, commerciality and contrivance
Secondary Category:
Secondary Subcategory:
Notes: Housing benefit – liability to make payments in respect of a dwelling – claimant previously owned dwelling – relevance of perceptions The claimant and her husband sold their home to their nephew and then rented it from him, in order to clear mortgage arrears and other debts. They claimed housing benefit in respect of the rent. The local authority refused the claim under regulation 7(1)(h) of the Housing Benefit (General) Regulations 1987 on the ground that the claimant and her husband could have continued to occupy the dwelling without relinquishing ownership. The appeal tribunal confirmed the local authority’s decision. In its reasons the tribunal identified a number of steps the claimant and her husband could have taken to avoid selling their home and found (applying CH/3853/2001) that the claimant and her husband were not under a practical compulsion to sell, although subjectively they may have believed themselves to be. The claimant’s representative applied for leave to appeal, arguing that the proper approach to regulation 7(1)(h) was subjective, not objective. The local authority argued that the test required a simple factual analysis of the options available in the circumstances and that the claimant’s knowledge, belief or reasoning was irrelevant. Held, dismissing the appeal, that: 1. regulation 7(1)(h) contains both subjective and objective elements, the test being, as held in CH/3853/2001, one of practical possibility as applied to the particular circumstances of the claimant (paragraphs 14 and 15); 2. it is impossible in the normal use of language to interpret “could not” to mean “believed she could not” and, apart from exceptional circumstances, such as extreme stress, where the claimant’s perceptions might limit the options available, the claimant’s perceptions are not relevant to the application of the test (paragraphs 17 to 19).
Decision(s) to Download: R(H)_6-07_bv.doc R(H)_6-07_bv.doc