[2008] UKSSCSC CH_1353_2007 (23 January 2008)
CH/1353/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	  For the reasons given below this appeal is dismissed.  Unfortunately, the regulations are drafted in a way which does appear to lead to unfairness in this case, but, as three commissioners have found in previous decisions referred to below, they are clear and they do lead to the result that the claimant is not entitled to housing benefit from 18 April 2006.

2.	  The appeal is brought with the leave of a commissioner from a decision of the Birmingham Appeal given on 18 December 2006 dismissing the appeal of the claimant from decisions of the Respondent that the claimant was not entitled to housing benefit from 18 April 2006 or to council tax benefit from 26 June 2006.

3.	  The claimant’s former partner rented to him from 18 April 2006 the flat which they had lived in together until they parted in December 2003.  They had jointly owned the flat, but his former partner bought his share on 21 December 2005 for £30,000.  It is clear that there was nothing collusive about either the purchase of his interest or the subsequent letting of the flat, and that it was unconnected with any attempt to obtain housing benefit.   

4.	  Regulation 9(1)(h) of the Housing Benefit Regulations 2006 provides (re-enacting regulation 7(1)(h) of the Housing Benefit Regulations 1987 in its amended form as it stood in 2006) that

“(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable where – 
……………
(h) he previously owned, or his partner previously owned, the dwelling in respect of which the liability arises and less than five years have elapsed since he, or as the case may be, his partner, ceased to own the property, save that this sub-paragraph shall not apply where he satisfies the appropriate authority that he or his partner could not have continued to occupy that dwelling without relinquishing ownership”

5.	  “Owner” is defined by regulation 2 of the 2006 Regulations, as it was in the 1987 Regulations, in relation to a dwelling in England and Wales as “the person who, otherwise than as a mortgagee in possession, is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners.”  It is clear that the claimant was, until December 2005, entitled to dispose of the fee simple of the flat with the consent of his former partner and that he did therefore own flat until that time for the purposes of regulation 9(1)(h).  It is also plain that it was less than five years since he had ceased to own the property.

6.	  The five years limitation on the operation of the section was introduced by amendment to the 1987 Regulations in respect of the period after 21 May 2001.  In relation to the unamended version of those Regulations, it was held by Commissioner Jacobs in CH/0716/2002 and in CH/5302/2002 that the sub-paragraph had no application where the occupation of the dwelling was not continuous.  However, in CH/3616/2003 he held that the same construction did not apply to the amended sub-paragraph as a result of the introduction of the five years rule, and that as a result of that amendment there was no need to limit the scope of the provision to cases where there was continuity of possession.

7.	  The amended sub-paragraph has been considered in two subsequent decisions.  In CH/4733/2003, Commissioner Howell QC, having dismissed the claimant’s appeal on other grounds, stated at paragraph 41 that had he not dismissed the appeal on other grounds, he would have found against her on the basis of the unamended regulation 7(1)(c), construing it in the same way as in CH/3616/2003, and rejecting the construction in CH/0716/2002.  Then, in CH/3220/2005, Commissioner Angus was faced with a similar issue in relation to the amended regulation 7(1)(c).  He considered the previous decisions at some length and concluded that there was “no ambiguity in the wording of either the old or the new version of sub-paragraph (h) which would warrant reading into them a proviso or precondition of continual occupation.”

8.	  It is unnecessary for me to consider how the unamended version of regulation 7(1)(h) of the 1987 Regulations should be construed, although I share the misgivings of both Commissioner Howell and Commissioner Angus as to the construction put upon that version by Commissioner Jacobs.  What is clear is that all three Commissioners came to the conclusion that there was no justification for departing from the plain words of amended version.  I agree, and it follows that the claimant is caught by regulation 9(1)(h) of the 2006 Regulations, and is not saved by the fact that his occupation was not continuous.  The doubts expressed by the editors of CPAG’s Housing Benefit and Council Tax Benefit Legislation, 19th ed., 2006/2007, at pp.224-225, as to the construction of regulation 9(1)(h) of the 2006 Regulations are unfounded, and the editors appear to have overlooked the decision of Commissioner Angus, which resolved the issue.

9.	   For the same reason, namely that he had not previously been in occupation of the flat, the proviso cannot be applied to him.  His relinquishment of ownership was unconnected with his continuing to occupy the flat because he was not occupying it at that time.  Nor indeed was he proposing to resume occupation when he sold his share.  

10.	It follows that the claimant is to be treated for the purposes of housing benefit as not liable to pay the rent which in fact he was liable to pay to his former partner, and that his appeal in respect of the refusal of housing benefit must fail.

11.	It is further the case, in relation to both housing benefit and council tax benefit, that the claimant had capital of about £30,000 from the sale of his share. Although I appreciate that that will have gone down to a degree, it was plainly still well in excess of £16,000 (the limit for entitlement to benefit) at 26 June 2006.  Unless the £30,000 can be disregarded, therefore, he was not entitled to either benefit from that date until his capital or notional capital fell below £16,000, and he could make a new application.

12.	It is plain on his own evidence that the claimant was not in a position by June 2006 to look for a new home to purchase, that he was not doing so, and that he had little prospect of being able to do so in the foreseeable future because he had inadequate funds and was very unlikely to obtain a mortgage advance.  In those circumstances, it appears to me that there was ample evidence on which the tribunal could conclude that the £30,000 was not to be used for the purchase of a new home within a reasonable period.  Accordingly, the claimant was not entitled to benefit and the appeal must fail.

	(signed on the original)	Michael Mark
		Deputy Commissioner
		23 January 2008