DECISION OF THE SOCIAL SECURITY COMMISSIONER
1.	My decision is as follows. It is given under paragraph 8(4) and (5)(c) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.
1.1.	The decision of the Middlesbrough appeal tribunal, held on 8 May 2003 under reference U/44/227/2003/00325, is erroneous in point of law.
1.2.	I set it aside and remit the case to a differently constituted appeal tribunal.
1.3.	I direct that appeal tribunal to conduct a complete rehearing of the issues that are raised by the appeal and, subject to the tribunal’s discretion under paragraph 6(9)(a) of Schedule 7 to the 2000 Act, any other issues that merit consideration. 
In dealing with regulation 7(1)(a) of the Housing Benefit (General) Regulations 1987, the tribunal must apply the law as set out in my decision in CH/0627/2002.

The appeal to the Commissioner
2.	This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. 
The issue
3.	This appeal concerns a claim for housing benefit by the claimant. He moved with his wife into a property that had been bought by their daughter. They had received housing benefit at their previous property. They signed a tenancy agreement. They were unable to pay the contractual rent without an award of housing benefit. The local authority refused the claim on the ground that the tenancy was not on a commercial basis. That decision was made under regulation 7(1)(a) of the Housing Benefit (General) Regulations 1987. On appeal, the tribunal confirmed the local authority’s decision. The issue for me is: did the tribunal go wrong in law in dismissing the appeal?
The tribunal’s reasoning
The reasoning
4.	The appeal to the tribunal was heard, correctly, by a chairman sitting alone. His reasoning, as set out in his statement of the reasons for the tribunal's decision, is clear. It is that the tenancy was not on a commercial basis, because there was ‘never an expectation that the claimants could afford the weekly rent asked for and stated in the Tenancy Agreement.’ That was the only reason given by the tribunal. 
The flaw in the reasoning
5.	 The tribunal has made a mistake that is often made. It has taken into account an irrelevant consideration or, at least, given undue weight to that consideration. The flaw in its reasoning can be seen by considering the purpose of housing benefit. Housing benefit is an income-related benefit that provides financial assistance from public funds for those whose resources are insufficient to meet their housing costs in the rented sector of the housing market. If a claimant is able to meet the cost of renting a property, there is no need to claim housing benefit. In other words, on the tribunal’s reasoning, housing benefit would effectively be limited to those who have already entered into a tenancy before they encounter financial difficulties. It would not be available at all for those who take on a new tenancy once they are on the benefit. 
The grounds of appeal
6.	I dealt with the claimant’s grounds of appeal in my grant of leave. I repeat what I wrote there for the claimant’s benefit. Both the local authority and the tribunal accepted that there was a valid tenancy. If they had not, the claim would have been refused under regulation 6, and not under regulation 7. The case has proceeded on that basis. That cannot be changed without a warning to the claimant. 
Summary
7.	I allow the appeal, set aside the tribunal’s decision and direct a rehearing. 

Signed on original	Edward Jacobs
Commissioner
2 September 2003