CH 4250 2006

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. This appeal by the claimant succeeds. In accordance with the provisions of paragraph 8(5) of Schedule 7 to the Child Support Pensions and Social Security Act 2000 I set aside the decision of the Chester tribunal of 5th September 2006. I substitute my own decision. This is to the effect that, subject to the satisfaction of conditions of entitlement other than those I deal with below, the claimant is entitled to housing benefit in respect of £305.97 mooring charges for the period from 1st November 2005 to 31st January 2006. I remit to the respondent (“the authority”) questions relating to payment on this basis. Any party is at liberty to restore the matter to me for determination in the event of any failure to agree on such questions.

Background and Procedure

2. The claimant was born on 16th June 1948. The parties agree and the tribunal found that at the relevant times he was living on a canal narrow boat at a particular British Waterways mooring and had no other home. He says that his boat “is fitted out as a dwelling suitable for permanent residence” and that has not been disputed. The boat was registered as a leisure craft and was not registered as a houseboat. The claimant had a cruising licence from British Waterways allowing him to use his boat on the canal and to moor for short periods of up to two weeks at a time. At about the end of October 2005 he was refused a mooring licence by British Waterways to continue at the mooring, where he had been for a couple of months, but he was unable to relocate the boat and stayed at the mooring. Notwithstanding the refusal of a licence, British Waterways invoiced him for mooring charges at the rate of £101.99 per calendar month for the period from 1st November 2005 to 31st January 2006. On 13th February 2006 he claimed housing benefit in respect of these mooring charges.
 
3. On 16th February 2006 (confirmed on 24th March 2006) the authority refused the claim on the basis that although the boat was at a legitimate British Waterways long term mooring, there was no planning consent for residential use. The authority also stated that “we have doubts” that a residential narrow boat necessarily constituted a “houseboat” within the meaning of the regulations. 

4. On 6th April 2006 the claimant appealed to the tribunal against the decision of the authority and on 5th September 2006 the tribunal considered the matter and confirmed the decision of the authority. 

5. On 12th March 2007 a chairman of the tribunal granted the claimant’s application for leave to appeal to the Commissioner against the decision of the tribunal. On 3rd May 2007 the Legal Officer invited the Secretary of State to become a party to the appeal. The Secretary of State accepted the invitation and made written submissions. The authority opposes the appeal and supports the decision of the tribunal but the Secretary of State supports the appeal. Some delay has been caused by the need to give each party an opportunity to comment on the submissions of the other parties. A further delay was caused by the 2007/8 winter break and I received the file for decision on 30th January 2008.

The Relevant Law 

6. At the relevant time, so far as affects the present case, regulation 10(1) of the Housing Benefit (General) Regulations 2007 provided as follows:

10(1) … the payments in respect of which housing benefit is payable … are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home – 

… 
(d) payments in respect of, or in consequence of, use and occupation of the dwelling;

(e) …

(f) mooring charges payable for a houseboat;
…

7. Regulation 2(4)(c) provided that:

2(4) For the purposes of these regulations, the following shall be treated as included in a dwelling – 

(c) where the dwelling is a houseboat, the land used for the purposes of mooring it;

8. In CH/0318/2005 Mr Commissioner Jacobs considered the case of a claimant who lived on a narrow boat with his children, in breach of his licence to occupy the boat. He rejected the argument that a “dwelling” has to have a fixed location. He also rejected submissions that a person could not receive housing benefit while being technically homeless for the purposes of the duty of local authorities to homeless people. He further pointed out that the housing benefit scheme accepts that the claimant’s presence in the accommodation may not be lawful. I agree with all of these conclusions.

The Meaning of  “Houseboat”

9. There is no definition of “houseboat” in the housing benefit legislation or regulations. In CH/0318/2005 no argument seems to have been raised that the boat in question was not a houseboat and the Commissioner seems to have assumed that it was.

10. Reference has been made to the decision of Mr Commissioner Williams in CH/0844/2002. In that case, which concerned a narrow boat moored at a permanent site, the authority had conceded at the tribunal stage that mooring charges were included and that the boat was a houseboat for the purposes of the regulations. The Commissioner did not allow the authority to withdraw that concession at the stage of the appeal to the Commissioner, and decided that case on the basis of regulation 10(1)(d). He did make obiter comments (ie comments on matters that were not necessary to the decision that he made) to the effect that he tended to think that the word “houseboat” was an ordinary English word without a technical meaning and that he did not see why the term should be restricted to a boat without an engine. 

11. The Commissioner also referred to the definition of a houseboat used in paragraph 38 of the British Waterways Boat Licence and Permit Conditions: “boats not normally used for cruising which are moored at sites with planning permission for residential use” (“the paragraph 38 definition”).

12. The authority in the present case were told by British Waterways that the latter have a separate licensing category for houseboats and do not regard narrow boats on which people live as houseboats but as “live-aboard cruisers”. It also asserts that that a wide range of organisations use the paragraph 38 definition.  Some of the literature in support of this is reproduced in the file.

The Tribunal’s Decision

13. The tribunal confirmed the decision of the authority for the following reasons: there was no planning permission for residential use of the mooring; the claimant did not have a licence for residential mooring; the boat was not registered as a houseboat; there was liability to pay mooring charges but not to pay houseboat mooring charges; although the claimant lived on the boat he was not liable to “make periodical payments in respect of the Craft which he occupies as his home”.

The Arguments

14. The claimant argues that for the purposes of housing benefit it is sufficient that the boat is his dwelling. The absence of a definition in the housing benefit scheme means that the ordinary English usage of the term “houseboat” should apply. “The purpose of the Housing Benefit scheme is to provide financial support for those whose income is insufficient to meet their housing costs even if their housing arrangements are irregular”.

15. The authority argues that the mooring has no facilities or services, that there is no planning consent for residential moorings, that the fee is payable purely for permission to tie up his boat at a particular location and for nothing more and that therefore it is not payable as a consequence of him occupying it as his home. Regulation 10 relates to periodical payments that a person is liable to make “in return for occupying the dwelling as his home”. It is too simplistic to consider that a boat must be a houseboat because somebody is living on it. The authority draws a distinction between the fee in the present case, which it argues does not constitute a housing cost, and the fee for a residential mooring where there are utilities, facilities and shops and controlled access.

16. The Secretary of State requests that the potential for abuse of the provision be guarded against and suggests that it is necessary to produce evidence in any particular case that a mooring is in fact being occupied if it is being occupied unlawfully. However, “this provision is broad in its wording and the case law tends to support a generous interpretation”. This appeal should be allowed because the claimant lived on the boat, which was fitted for use as a dwelling. 

Conclusions

17. The arguments of the authority in this case are fallacious. There is no doubt that the claimant is liable to make periodical payments, nor that the liability is “in respect of the dwelling which he occupies as his home” (my emphasis). The analysis by the authority obscures the broad meaning to be given to the words underlined. It is not a necessary part of the concept of a “home” that there be facilities, utilities, shops or security arrangements. The relevant payments amount to “mooring charges payable for a houseboat”; they do not need to be utility or amenity or any other kind of charges. 

18. As regulation 10 can include charges payable by a trespasser, even if the claimant’s use of the mooring was unlawful, the lack of planning permission was not relevant and there is no doubt that British Waterways actually levied the charge on the claimant. 

19. That leaves the question of whether the claimant’s boat was a houseboat. The legislation or regulations could have defined the term but did not. Definitions in other legislation or regulations for different purposes (eg tax liability) are not relevant. The way in which the term is used by various organisations might reflect or inform common usage but cannot define it for the purposes of the law on housing benefit. Neither can the classification for the purposes of licensing, or the operation of other schemes, such as the paragraph 38 definition. It seems to me that for housing benefit purposes “houseboat” is, as Commissioner Williams suggested it might be, an ordinary English word without a technical meaning and that it is a matter of fact in any particular case whether a boat is a “houseboat” in this sense. However, it is difficult to imagine a case in which a reasonable tribunal would conclude that a boat which is fitted out as a dwelling suitable for permanent residence is not a houseboat.

20. In the present case, the tribunal was mistaken in its reliance on the lack of planning permission, licence for residential mooring and the form of registration of the boat, and was erroneous in its approach to the meaning of houseboat. For these reasons I set aside its decision as having been made in error of law. The basic facts in this case are not in dispute (as contrasted with the conclusions to be drawn from them) and it is expedient that I substitute my own decision, as I have done in paragraph 1 above. 

21. For the above reasons this appeal by the claimant succeeds.

H. Levenson
Commissioner
20th March 2008