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Neutral Citation Number:
Reported Number:	R(H)9/05
File Number:	CH 2957 2004
Appellant:
Respondent:
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	22/12/2004
Date Added:	04/01/2005
Main Category:	Housing and council tax benefits
Main Subcategory:	occupation of the home, two homes and temporary absence
Secondary Category:
Secondary Subcategory:
Notes:	Housing and council tax benefit - dwelling normally occupied as claimant's home - new tenancy - furniture moved into home while claimant in hospital The claimant entered into a tenancy agreement for a flat on 12 February 2004. She claimed housing benefit and council tax benefit on 17 February 2004, stating that she intended to move into the flat on 15 March 2004. On 15 March 2004, following adaptations to meet her disability needs, her furniture was moved into the flat, but the claimant was in hospital and did not move in until 9 August 2004. She was however liable for rent from mid-February 2004 and for council tax from 15 March 2004. By section 130(1) of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) one of the conditions of entitlement to housing benefit is that the claimant is liable to make payments in respect of a dwelling which he occupies as his home. Regulation 5(1) of the Housing Benefit (General) Regulations 1987 provides that a person shall be treated as occupying as his home the dwelling "normally occupied as his home", but that phrase is not defined. Subsequent paragraphs modify that rule in certain circumstances, including delay in moving into a new home and temporary absence. The local authority refused the claimant's claim for housing benefit in respect of the flat on the ground that she was not occupying the flat as her home and refused council tax benefit on the ground that she was not in occupation of the flat. After she went to live in the flat she was awarded housing benefit and council tax benefit from 16 August 2004. Subsequently she was awarded housing benefit from 19 July 2004, four weeks earlier than the initial award, under regulation 5(6). Meanwhile she had appealed to an appeal tribunal, which on 7 July 2004 had dismissed the appeal, holding that she could not be said to have moved in until she was personally in occupation. The claimant appealed to the Commissioner. The local authority submitted that in order to normally occupy a dwelling, a claimant must spend at least one night there. Held, allowing the appeal, that: 1. from 15 March the claimant was occupying the flat as her home in the normal sense in which that expression is used (paragraphs 10 and 21(4)); 2. in regulation 5(1), the word "normally" is used to deal with the case where there is more than one possible dwelling which might be treated as the claimant's home, and is not directed to any question of length of occupation of a single dwelling (paragraph 21(2)); 3. the expression "move in" occurs only in subsequent paragraphs of regulation 5 which modify the general rule by spelling out the boundaries within which, in certain circumstances, a claimant can be treated as occupying the dwelling as his home for housing benefit cases (paragraph 14); 4. the claimant had moved into the flat for the purposes of regulation 5(6) when she removed all her furniture from her previous home and moved it into the new flat (paragraph 16); 5. whatever the general meaning of "the dwelling normally occupied as his home" in regulation 5(1), when the claimant was temporarily absent from the property, she had to be treated as if she was there to the extent that she fell within one of the provisions of paragraphs 8B and 8C, but could not otherwise be treated as occupying it as her home during her absence (paragraphs 17 to 19); 6. the claimant fell within paragraph 8B(a) of regulation 5 because she did intend to return to occupy the dwelling as her home. The word "return" in this context required that she should previously have occupied the dwelling, but that occupation could be by her agents who moved her property into the dwelling and did not have to be by her personally (paragraph 21). She was therefore to be treated as occupying the property as her home from 15 March, and also, by virtue of regulation 5(6) for a period of four weeks prior to that date, that is from 16 February; 7. The claimant was resident in the flat from 15 March 2004 and therefore entitled to council tax benefit from that date (R(H) 4/05 followed) (paragraphs 23 and 24).
Decision(s) to Download:	R(H) 09_05 bv.doc