[2006] UKSSCSC CH_2321_2006 (01 November 2006)

CH/2123/2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an appeal, brought by my leave, by the claimant against the decision of the appeal tribunal held on 17 February 2006.  I set aside the decision of the tribunal for error of law but consider this to be an appropriate case in which to substitute my own decision.  That decision is given under the provisions of paragraph 8(5) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000.  My decision is that the claimant is not entitled to Housing Benefit following the claim made on 15 July 2005.  That is because she is responsible for a child of the person to whom she is liable under the agreement, see regulation 7(1)(d) of the Housing Benefit (General) Regulations 1987.  

2.	The essential factual background is that the claimant is a single parent.  She applied for a financial order in respect of her child under the Children Act 1989.  The father of the child is the claimant’s former partner.  On 15 November 2004 a district judge ordered that £160,000 be settled on trust to provide a home for the child until she reached the age of 18 or cessation of full‑time education.  It was provided in the order of the court that the claimant should be allowed to live in the relevant property whilst looking after the child and at the end the relevant period the property should revert to the father.  The district judge (as appears from paragraph 36 of the judgment) proceeded on the assumption that since the claimant was in receipt of income support she would be eligible for housing benefit.  It was ordered that the rent the claimant should pay to the father should not exceed the amount of housing benefit.  As a result of the order the father purchased a property, in respect of which the claimant sought an award of housing benefit.  The application was received by the local authority on 14 July 2005.  In response to the question about the type of tenancy the claimant said that the property was held on trust and that the term of the tenancy was from 15 April 2005 to 3 November 2018 (the latter date being when the child would attain the age of 18).

3.	The local authority refused the claim, having regard to the provisions of regulation 7(1)(d) of the Housing Benefit (General) Regulations 1987 – “a person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where … he is responsible, or his partner is responsible, for a child of the person to whom he is liable under the agreement.”  Through her solicitors the claimant told the local authority that the freehold of the relevant property was owned by the child’s father and that the property was to be let to trustees who would in turn let the property to the claimant.  The local authority continued to rely upon regulation 7(1)(d) but also upon regulation 7(1)(l), providing that the relevant liability shall not exist if it had been created to take advantage of the housing benefit scheme.  

4.	The instant tribunal dismissed the appeal after an oral hearing attended by the claimant and a representative from the local authority.  The tribunal found that the claimant was not caught by regulation 7(1)(l) but that she was to be treated as not liable not only because of regulation 7(1)(d) but also because of 7(1)(f) – “his liability under the agreement is to a trustee of a trust of which his or his partner’s child is a beneficiary …” 

5.	A number of grounds of appeal were advanced and I referred to these in the determination of the application for leave.  Although the grounds have subsequently been amended I remain of the views (and they were then only tentative views, not settled conclusions) as expressed in the grant of leave, in relation to the original grounds.  It was originally said that the tribunal should have adopted a “purposive” approach to the interpretation of the relevant legislative provisions in order to give effect to the judgment of the court.  It was argued that “it cannot have been the intention of the legislature to exclude from housing benefit entitlement any person who was in the intended position of [the claimant].”  Such an intention was, however, clearly evidenced under the terms of the regulations.  In paragraph 26 of CH/1205/2003 the Commissioner said that “regulation 7 is an anti‑abuse provision.  It excludes two categories of cases from housing benefit.  One category consists of cases in which the housing benefit scheme is being abused.  The other category consists of cases in which there is a high risk that housing benefit might be abused.  In this category, actual abuse does not have to be shown.  The risk and the difficulties of proof justify a provision that is not limited to actual abuse.”.

6.	There was originally also an argument that the claimant’s family and private life under Article 8 of the European Human Rights Convention had been breached.  In R(Tucker) v. Secretary of State for Social Security [2001] EWCA Civ 1646 it was held that regulation 7(1)(d) did not conflict with primary legislation governing child support, did not offend against the principles of legality or irrationality and did not infringe Article 8.

7.	It was also argued that the tribunal erred in failing to adjourn to give the claimant an opportunity of dealing with regulation 7(l)(f).  I am not persuaded by this ground, either, since although 7(1)(f) had not previously been relied upon by the local authority it was nonetheless placed fairly and squarely in issue given that the first tribunal, which adjourned on 16 December 2005, specifically referred to this part of regulation 7, so that the claimant could not have been taken by surprise.  

8.	Leave was granted as I considered that it might be arguable that it was not open to the tribunal to find that the claimant was both liable to the trustees under regulation 7(1)(f) and at the same time to the father of the child, under regulation 7(1)(d).  There appeared some confusion as to the trust since in the letter dated 25 August 2005 a question was asked by the landlord’s solicitors if benefit was payable and if so confirmation was asked for “that this benefit should be paid directly to the trustees who hold the property and by whom the property is let to [the claimant].”  The evidence from the claimant and her solicitors, however, indicated that at that time the trust deed had not been executed.  The finding of the tribunal that the claimant was liable both to the trustees, under regulation 7(1)(f), and to the father of her child, under regulation 7(1)(d), to my mind betrays an inherent inconsistency.  Liability could exist to one or the other but not both.  For that reason in my judgment the tribunal erred in law.  Moreover it is not entirely clear that at the date of the decision the subject of the appeal the relevant trust had come into existence.  

9.	This is not a case in which, however, I need remit the matter for rehearing.  The evidence is before me and any new tribunal is not likely to be any better placed than I am to make a decision.

10.	The claimant, through her solicitors, in summary argues that regulation 7 does not apply to the claimant since she never had a tenancy or any other agreement with her former partner (the father of her child) or anyone else on her behalf.  That argument is founded on the assertion that the liability of the claimant to pay arises from the terms of the order made by the district judge on 15 November 2004.  

11.	In response to the submission made on behalf of the claimant the local authority questioned whether there is any “tenancy or other agreement” in existence, given that, they argue, the claimant has provided no proof of a liability to pay rent.  This argument, however, does not to my mind acknowledge the essential thrust of the claimant’s argument, that liability arises under the terms of the court order.  Moreover in the housing benefit claim form dated 14 July 2005 the claimant said that her landlord was her former partner, that she started renting her home from 15 April 2005 and that she paid £550 every month.  That to my mind is evidence going to the existence of a tenancy agreement between the parties.  

12.	I am not persuaded by the argument advanced on behalf of the claimant.  The court cannot create a “tenancy or other agreement”.  As appears from paragraphs 35 and 36 of the order of the court the claimant and her former partner were directed to come to some arrangement about rent.  The order of the court did not stipulate a rent figure or period in respect of which the rent was payable or indeed any other commonly found tenancy provisions, such as notice.  The order did in fact provide a ceiling on the rent but this was based, as it seemed, on a misunderstanding that the claimant would simply automatically receive housing benefit.  The assumption also seems to have been made that the rent would be determined by the amount of housing benefit in payment.  In fact the calculation is, other things being equal, the other way round.  In summary the order of the court simply set the framework for the parties to enter into a “tenancy or other agreement”.  Without a “tenancy or other agreement” there could be no liability to pay and no liability could have arisen from the terms of the court order which was effectively silent as to the amount of rent to be paid and the period of payment.  Moreover the fallacy in the argument presented on behalf of the claimant is revealed by consideration of what would happen if the claimant had left the relevant property (with her child) but had not entered into a “tenancy or other agreement”.  If the argument of the claimant were to be accepted she would in those circumstances still be liable to make payments given that, it is suggested, her liability effectively arises under the terms of the court order.  Such a situation would be absurd.  Moreover the details to which I have referred in the housing benefit form dated 14 July 2005 are in my judgment compelling evidence of a tenancy agreement between the two parties.  The claimant indisputably is responsible for her daughter and that child is also the daughter of her former partner, the landlord to whom the claimant is liable under the agreement.  She is, then, caught by the terms of regulation 7(1)(d) with the result that she is to be treated as having no liability to make payments in respect of the dwelling in question. 

					(Signed on the Original)	S J Pacey
									Commissioner 
									
					(Date)				1 November 2006