1.	This appeal, brought by the local authority with leave of the tribunal chairman, succeeds.  The tribunal erred in law in finding that the claimant occupied 197 R Gardens as his home between 22 1 01 when the tenancy began and the time he began to spend some nights, and further for the rest of the period as explained below.  I set its decision aside and, under paragraph 8(4) and (5)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000, substitute my own decision to the effect that the claimant cannot be treated as occupying 197 R Gardens as his home from 22 1 01 to 27 5 01.  There has therefore been an overpayment of housing benefit (HB) to the claimant for that period (both dates included) of £886.96, which is recoverable from him.  

2.	I held an oral hearing, at which the appellant local authority indicated it did not want to be present.  Mr Harbinson of Warwickshire Welfare Rights Advice Service ably represented the claimant, who also did not attend.  He had sent a further statement dated 7 1 02 which he wished to have placed before me.  By administrative error it was not before me at the hearing, but it has reached me since.  I am grateful to Mr Harbinson for his help at the hearing.   

3.	The question at issue is whether the claimant, a single man in good health, at any time between the date he took on the tenancy, 22 1 01, and 27 5 01 when he ceased to be even potentially entitled to HB because he obtained work, was to be treated under regulation 5(1) of the Housing Benefit Regulations as occupying 197 R Gardens as his home because it was “the dwelling normally occupied as his home”. Regulation 5(2) provides that in determining whether a dwelling is the dwelling normally occupied as a person’s home, regard is to be had to any other dwelling occupied by that person.  There is no definition of  “occupy”.  Regulation 5 was made under s20(7) of the Social Security Act 1986 which provided that a person was entitled to HB if he was liable to make payments in respect of a dwelling which “he occupie[d] as his home”.  Mr Harbinson took me to the earlier s28 of the Social Security and Housing Benefits Act 1982 which also referred to people occupying dwellings as their homes.  The present primary legislation is s130(1) of the Social Security Contributions and Benefits Act 1992, which also provides for HB for a person liable to make payments for a dwelling “which he occupies as his home”.  

4.	None of these definitions contained or contains any reference to “normally” occupying; but regulation 5 is a deeming provision, prescribing people who are to be treated as occupying dwellings as their homes in circumstances including those of temporary absence for one  reason or another, whether before or after a tenancy begins.  

5.	The claimant had for some time been living at his mother’s, hoping to obtain a local authority tenancy.  All his possessions were at her house.    He was offered the tenancy of 197 R Gardens, and decided to take it.  The appellant local authority considered the flat fit for habitation, though it was run-down and needed decorative and some structural repairs to plaster.  The claimant disagreed with this estimate, and decided to do the place up himself.  The local authority agreed to plaster a ceiling, but let him down and kept him waiting, he did not like the quality of the work once it was done, and he ultimately decided to give the tenancy up, apparently making the local authority a gift of the cooker and other items and of the hard work he had put in on the decorations.

6.	The claimant signed a tenancy agreement with effect from 22 1 01, and a couple of days beforehand he made a housing and council tax benefit application.  This correctly stated the date the tenancy began, but also said he “moved in” on the same date, ie would be moving in on the date the tenancy began.  Because of this, the appellant authority had no reason to suppose that he would not immediately begin living there.  

7.	In fact he did not.  He stayed on at his mother’s, but began to do work at the flat.  Some time later, either at the end of February (his letter of appeal) or mid-February (more recent statements) his car broke down, so rather than walk both ways from his mother’s he decided to spend some nights at the flat while continuing to work on it.  He moved in a foldaway camp bed.  He kept no clean clothes there.  He bathed at his mother’s.  He bought a cooker (though he actually ate takeaways) and some other things which he left behind when he moved out.  The tribunal found that he spent roughly half his time at the flat and half (including all weekends) at his mother’s.  He paid utility bills.  At the end of May he got a job, which meant he was no longer eligible for HB, nor did he have time to devote to the flat.  There were still problems with the ceiling which awaited plastering and, after this had been done, with the quality of the work and the mess it had made.  He therefore moved out.       

8.	The question of whether the claimant had been normally occupying the flat as his home was brought to the attention of the housing benefit authorities when he vehemently denied, in response to a demand for council tax for the period after his unemployment entitlement ceased, that he had ever “occupied” the flat.  He told the tribunal that he said this because he thought you did not have to pay council tax until you could occupy a property in a normal way with all the furniture there in a clean condition.  I do not know where he got that idea from, and it is quite wrong.  The only condition for council tax liability is that a person be “resident” at a property, in the sense that it is his sole or main residence (Local Government Finance Act 1992, s6(2)(e) and 6(5)).  A denial of liability therefore carries the connotation that the property was not even his main residence.         		

9.	The local authority investigated and decided that the whole of the claimant’s HB had been overpaid, because he had never normally occupied the flat as his home.  It was not persuaded otherwise by his evidence of what he had done.  The tribunal held a full and careful hearing and found some of the facts as set out in paragraph 7 above.  It accepted the claimant’s excuse for denying in relation to council tax that he had ever occupied the flat.  It found that it was reasonable for the appellant to behave as he did.  So it may have been, but what was material was whether he was to be subsidised by housing benefit while doing up the flat and living elsewhere.  The tribunal found that he was occupying the property as his dwelling once he “moved in”, which it accepted was once he began spending nights there; but the actual decision was that he was occupying it throughout the period from the beginning of the tenancy, which is inconsistent.  The tribunal may have thought this period was de minimis, but if it did, it did not say so.  

10.	The tribunal, despite acknowledging that the case did not relate to benefit law, relied on Herbert v Byrne [1964] 1WLR 519 as providing an acceptable definition of “occupying”.  This was a case under the Landlord and Tenant Act 1954 in which the Court of Appeal held that a man in the course of moving from one home to another could have a home at each place until the move was completed.  The defendant had been “pigging it” until he could move in properly.  He slept at the new property every night, and always intended to (and ultimately did) make it his and his family’s home.  There was “a substantial degree of regular personal occupation of an essentially residential nature”.  This case is not binding in the housing benefit context, as the legislation is different (R v HBRB of Kensington & Chelsea, ex p Robertson 86 LGR 409).  Although the Rent Act definition (not that Herbert v Byrne was a Rent Act case) refers to a person occupying a dwelling-house as his residence, which Mr Harbinson argued was very close to the housing benefit definitions, the Rent Acts were dealing with protection from eviction, not with entitlement to benefit.  Housing benefit law does not allow for being treated as occupying two homes, except in the strictly defined circumstances in other parts of regulation 5.  The Herbert v Byrne test of a person’s intention to make a particular property his home is recommended in CPAG’s Housing Benefit as a factor to be considered in connection with regulation 5, though I cannot find that work’s “centre of his existence” test anywhere in the decision.   Herbert v Byrne may be taken into account, but should not be exclusively relied on, as here it appears from the tribunal’s decision that it was.  It is also worth noticing that the defendant in that case slept at the premises every night.         
    
11.	The tribunal cited some other paragraphs of regulation 5 to show that certain absences from home are permitted, and seemed to rely on these to demonstrate that since allowances can be made in certain circumstances, why not in the present ones?  The appellant authority argued that paragraphs (3)-(8C) of regulation 5 constitute the only situations in which a claimant can be treated as normally occupying as his home a dwelling not so occupied.  The representative, in response to a specific direction from me, argued that the other paragraphs of regulation 5 are not an exhaustive list of situations in which a claimant may have two dwellings but simply determine for which property benefit can be claimed in certain situations and when benefit can be paid on two homes.  In many of them the “normal home” question will already have been answered at an earlier stage.  The “normal home” question in paragraph (1) is to be determined as a matter of fact, without regard to the other specific provisions, which are “exceptions” to the normal rule.  

12.	I am not entirely convinced the representative is right.  Paragraph (1) provides that a person shall be treated as occupying as his home the dwelling normally occupied as his home, subject to the provisions in the rest of the regulation.  I read this as, at least, importing the rest of those provisions as aids, where appropriate in any particular case, to the interpretation of paragraph (1).  Many of them, as the representative rightly says, have no bearing on the present case; but paragraph (6) expressly provides for persons who become liable to pay rent on a property before they move in and allows retrospective payments for up to 4 weeks where the delay in moving in is due to certain very limited circumstances.  The delay must be reasonable, and be (a) necessary to adapt the dwelling to meet disablement needs, or (b) due to awaiting the outcome of a social fund application in connection with the move and there is a child under 5 in the family or pensioner or disability premiums are in payment, or (c) due to the person being a patient or in residential accommodation when the rent liability begins. None of these applied to the claimant.  There are also requirements about the making of claims, which cannot be satisfied here.  It is hard to see why the appellant should be able, because of a misrepresentation on his claim form, to do better than someone who has completed the form accurately and who is to be taken, in the light of the qualifying conditions, to be, or to have in the family, someone who is “vulnerable”.

13.	I do not therefore consider that I can accept the tribunal’s finding that the claimant was normally occupying the property as his home once he began to spend several nights a week there.  It is true that there are no cases directly on regulations 5(1) and (2): the Kensington and Chelsea case was on the predecessor to regulation 5(8),  R v Penwith DC, ex parte Burt (1990) 22 HLR 292 was about regulation 5(8) itself, both dealing with temporary absences from a dwelling already accepted as normally occupied as the home.  It may be that other tenants act as the claimant did where they have somewhere else to stay, but the matter never comes to light because they ultimately do move into the property.  But even as late as the  letter of 19 9 01 the claimant was arguing that he did not “live” at R Gardens so as to derive any pleasure or benefit from it or as a human being would wish to accommodate him or herself, though still maintaining that he “occupied” it “in a residential sense”.  He has also said elsewhere that he was attending a number of job interviews, which would have required him, on his own account, to sleep at his mother’s the night before, so as to be able to wash and have access to clean clothes.  He did not use the washing facilities at the flat, although telling the tribunal they were in working order.  He ate takeaway food.  

14.	I have asked myself whether, if he had filled in his claim form correctly and been alerted to the need to occupy the flat as his home, the claimant would have spent more of his time there and moved in more of his possessions, or alternatively would have given up the tenancy, since he could carry on living at his mother’s, and indeed moved back there once his plans fell through.  But the fact remains that he did not complete the form correctly, that it was only when his car broke down that he began to spend nights at the flat rather than going there by the day, and he has continued to argue that it was not up to a suitable standard so that he should not have had to pay council tax, or indeed rent for the period in May/June when one ceiling had not been plastered, or not plastered to his satisfaction.  He is perfectly correct to say that as a council tenant he could come and go as he pleased; but that is a matter of landlord and tenant law.  Where HB is being claimed, the HB rules are those that must be applied to the claim.  The council workmen the claimant dealt with may have realised he was not living in the flat, but they are not familiar with HB law either.  He did not need to have security of tenure at his mother’s in order to be occupying his accommodation there as his home.     
15.	No-one, least of all me, is suggesting that the claimant had any fraudulent intent whatsoever in what he did.  As he says, he invested an amount of money and labour in doing the property up himself and leaving it in a better condition than he found it.  But he has throughout argued the points he considered best adapted to fend off the particular claim being made against him, and I do not consider the tribunal’s decision can stand.   

16.	Mr Harbinson did an excellent job in representing the claimant, and made every possible argument that could be made.  But the local authority’s appeal succeeds.

				(signed on original)	Christine Fellner									Commissioner

								10 February 2003