IN THE UPPER TRIBUNAL	Appeal No.  CH/4018/2007
ADMINISTRATIVE APPEALS CHAMBER

Before 

Attendances:

For the Appellant:	Not represented

For the Secretary of State:  Mr. Hugh James solicitor

For the Respondent	Ms Rachel Wilcox, Welfare Rights

Decision:  The decision of the tribunal is affirmed but I vary the order made so as to give effect to that decision by providing that the decision of the decision maker dated 6 February 2006 is varied so as to provide that the entitlement of the claimant to housing benefit is to be assessed on the basis that the dwelling occupied by him as his home includes the room rented by him at his university for the use of his carers.

REASONS FOR DECISION

1.	I held an oral hearing in this case on 29 June 2009 at which representations were made on behalf of the Secretary of State, who had intervened in the case to support the appeal, and the Respondent.  The Appellant, Birmingham City Council, made written representations on the appeal but did not appear at the oral hearing, which had been requested by the Secretary of State.  

2.	The claimant is a disabled student, who was at the relevant time living in student accommodation at a university.  His disabilities are such that he was entitled to housing benefit under regulation 48A(2) of the Housing Benefit Regulations 1987.  It was common ground that the only way that full time attendance at university could be ensured was by providing the claimant with a live-in carer.  That carer was provided by Warwickshire County Council.  As a result, the claimant needed a two bedroom property.  The university did not have such accommodation available and therefore provided the claimant with two adjacent rooms, each with en-suite facilities, so that the carer could be on call 24 hours a day.

3.	The tribunal found that the claimant was contractually liable for the rent for both rooms.  Birmingham City Council found that the claimant was entitled to housing benefit in respect of the room which he himself lived in, but rejected his claim for benefit in respect of the room used by his carer.  There was some discussion before me as to whether he had only one carer or more than one at any one time, but in the end it was not suggested that anything turned on this.

4.	The carer’s room was a very small room, and was found by the tribunal to be bedroom space, not social space.  Any direct use by the claimant himself of that room was so marginal that it was disregarded by the tribunal.  The question as defined by the tribunal was whether two rooms which were physically separated from one another but had access onto the same corridor and required use of a common kitchen could constitute part of the same building.

5.	The tribunal considered the decision of the Court of Appeal in Secretary of State v. Miah (R(JSA) 9/03) and the definition of “dwelling” in section 137 of the Social Security (Contributions and Benefits) Act 1992 (“the Contributions and Benefits Act”) and concluded that the two rooms together constituted the claimant’s dwelling.

6.	As the Council has pointed out, the facts in the Miah case were very different from the present case.  It submits that the very different circumstances of that case make it irrelevant to the present case.

7.	The Secretary of State submits that all the evidence points to the fact that the two rooms are completely separate entities and completely separate dwellings, even though they overlap with each other and the four other rooms in the communal areas of the whole flat which contained a total of six bed-sitting rooms with en-suite facilities.  Emphasis is placed on section 130(1)(a) of the Contributions and Benefits Act which provides that a person is entitled to housing benefit if he is “liable to make payments in respect of a dwelling … which he occupies as his home”.  “Dwelling” is defined in section 137 of the Contributions and Benefits Act as “any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises”.

8.	It is said by the Secretary of State that all the evidence points to the fact that the two rooms are completely separate entities and completely separate dwellings, even though they overlap with each other and the four other rooms in the communal areas of the flat.  Staying nights in the second room is part of the carers’ conditions of employment.  Therefore from their point of view the room is not a dwelling occupied as a home by a specific carer, it cannot be considered residential accommodation and the cost of the room cannot be the carer’s liability.  The Secretary of State’s primary concern is said to be that the provision of this support should not come from the Housing Benefit budget of an authority that has no input into the arrangements for the claimant’s studies and has no responsibility for the claimant’s care costs.

9.	The problem with this approach is that, as was conceded in oral argument by the Secretary of State’s representative, had the claimant been able to rent a two bedroom flat, or even two intercommunicating rooms, there would be no argument but that he was occupying the flat or the rooms as his home.  The fact that one of the rooms was then occupied as the bedroom of his carer/carers would not affect this.  Housing benefit would then have been payable by Birmingham City Council although it had no input into the claimant’s care costs or the arrangements for his studies.  

10.	The difficulty that faced the claimant was that such accommodation was not available.  This is akin to the family in Miah who could not obtain one house big enough to accommodate everyone, except that in the present case the two rooms adjoin each other.

11.	In Miah, Ward LJ stated as follows:

“27.	A test for determining where home is can conveniently be expressed in the way the Commissioner directed the tribunal to approach the question, viz., by asking whether “the claimant’s arrangements were such that one house was, in effect used as an annex of the other, or to put it another way, whether this was a single home on a split site. Occasional use of the second house by the claimant or his dependent children will not assist him, because the tribunal must be satisfied that the second house was “normally” occupied by the claimant as his home”.
28. 	If one needs to look further, one should look to see where commonsense, fairness and justice take one. Taking the latter consideration first, the facts of this case provide a proper background for the question. Here is a man who organised his domestic life at a time when he was in good and apparently stable employment. He bought the property two doors away to house his growing family. Then he fell upon hard times. If in 1992 he had sold number 11A and bought a single five/six bedroom property, that property would have to be disregarded. It surely cannot be fair that he should suffer when the purpose of having two properties is exactly the same as having only one.
29. 	Simple justice seems to me to dictate that a man in the applicant’s position should not be discriminated against adversely to the owner of a single but large property for his family.
30.	          Commonsense dictates that the court can construe the words in a way which does not make them unworkable or impractical. Assume, as the tribunal subsequently found, the claimant truly does use both houses as his home, how is a decision-maker to determine which of the two is to be disregarded? Can the claimant elect? Is it the property of greater, or of lesser value? Is it the first he acquired or the last? Has some (but goodness knows what) attempt to be made to ascertain which is the more significant home? Those questions seem to me impossible of answer and militate against the Secretary of State’s submissions. One cannot have a scheme which is incapable of easy, sensible and certain application.
31.	          On the other hand, the claimant’s construction does allow commonsense to prevail. In requiring both properties to be occupied as the home at the same point in time, it is perfectly easy to distinguish those two properties seen as a unit from the second home which a hypothetical claimant may have in the country as a weekend retreat. Allowing only one of those homes to be disregarded is entirely just and fair as between the public purse and the claimant for this benefit.
32. 	If one applies this functional test as opposed to a structural test, a decision maker can with commonsense determine what the claimant is using as his home. It is the place where he lives, where he eats, sleeps, bathes, relaxes, enjoys with his family. Such a test avoids the absurdities that two semi-detached houses would not be a single dwelling, however used, so long as they remain detached. Not even going out of the back door of one, through the communal garden and in the back door of the other could make it one dwelling. But knock a hole through the party wall and then there is structural integration and presumably two dwellings have been converted into one. The subtleties of such distinctions produce an absurdity that has to be avoided by a more realistic interpretation.
33.	          I would test this by applying a purposive construction. The purpose of these provisions is surely to provide benefits for those in need. A liberal, as opposed to a strict construction demands that they be construed in favour of a claimant to relieve hardship rather than in favour of the Secretary of State to protect the public purse out of which the benefits are to be paid. If the Secretary of State who laid the regulations before Parliament could not do so in a way which made his position clear, then the regulations are to be construed against him.”

12.	Applying these tests in the present case, functionally and purposively, the claimant needs two rooms to live – one for himself and one for his carer.  Commonsense dictates that it should not matter whether there is a connecting door between the two, which the claimant might in any event be incapable of crossing, or whether the two rooms are in a larger flat as in this case or in a two room flat, or even a duplex with the carer’s room on the first floor and inaccessible to the claimant.  Nor should it matter if the landlord’s internal billing system meant that the two rooms were separately billed.  Simple justice also seems to dictate that the applicant, or indeed, if relevant, the County Council, should not be in a worse position because of the layout of the two rooms.

13.	So too, Mance LJ stated at paragraph 48 of Miah that a person may acquire two neighbouring flats but may not be able to incorporate them into one physical building.  He may nonetheless occupy them to all intents and purposes as if they consisted a single enclosed unit.  This was particularly likely if, as in that case, neither house catered for all his family’s needs.  In the present case, we are not concerned with the needs of the claimant’s family but with his own personal needs.  Neither room, by itself, catered for the claimant’s personal need.  He needed both rooms, he was the tenant of both rooms and in my judgment the two rooms taken together constituted the dwelling occupied as his home.

14.	The situation here is different from that dealt with by Judge Turnbull in CH/1615/2008, where the live-in carer was there for the benefit of the occupants of several rooms.  Judge Turnbull found that in that case the room occupied by the carer might well not be part of the dwelling which the claimant occupied as his home, but even in that case he considered that the part of the rent paid by the claimant which was attributable to the extra room was a payment of rent in respect of the dwelling that that claimant occupied as his home.  Again therefore, the burden of the rent was placed on the council providing the housing benefit, and not left to be borne by the entity providing the care.

15.	I therefore agree with the conclusions of the tribunal in its decision, although for slightly different reasons.  I note, however, that the decision notice does not expressly vary the decision under appeal.  I therefore vary that decision to accord with my conclusions.  I also note that on the information supplied to me, contrary to the comments of the tribunal on the decision notice, the outcome of the appeal is far from academic.  The claimant will be entitled to the additional housing benefit, which will presumably have to be accounted for to the Warwickshire County Council if that council has indeed paid the rent to which it relates.

Michael Mark
Deputy Upper Tribunal Judge
30 June 2009