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Notes:
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Reported as [2010] AACR 40
Occupation of the home – whether child at university to be treated as occupier of parent’s home
The claimant was entitled to housing benefit and was living with her son who was a member of her family for housing benefit purposes. In September 2008 her son started university and was living in a hall of residence for the term of 12 weeks with the intention of returning home during vacations. As he was receiving the care component of disability living allowance he would have been eligible to claim housing benefit for his term-time accommodation under regulation 52(6) of the Housing Benefit Regulations 2006, but did not do so. The local authority issued decision notices indicating reduced entitlement to housing benefit, on the basis that the son was no longer occupying the premises as his normal home and could not be included on the claimant’s claim as a non-dependant, so that the rent officer had been asked to determine a maximum eligible rent figure for a property with a bedroom for one person. Under regulation 14 of the 2006 Regulations a local authority may refer a rent to a rent officer where the number of occupiers of the dwelling has changed. Under regulation 7(1) a person shall be treated as occupying as his home the dwelling normally occupied as his home and shall not be treated as occupying any other dwelling as his home. Regulation 7(16) and (17) provides that a person who is temporarily absent from the dwelling he normally occupies as his home is to be treated as occupying that dwelling for any period of absence not exceeding 52 weeks if certain conditions are satisfied and regulation 7(13) deems a person to occupy the home during a temporary absence, where the absence is unlikely to exceed 13 weeks and there is an intention to return to the dwelling as the home. The claimant appealed. The tribunal disallowed the appeal, relying in particular on the provision in regulation 7(3) that a student claimant liable to make payments in respect of the dwelling occupied for the purposes of the course of study was to be treated as occupying that dwelling. The claimant appealed to the Upper Tribunal.
Held, allowing the appeal, that:
1. while the decision to refer the claimant’s rent to a rent officer was not itself appealable, it was to be regarded as one component determination of several leading to and embodied in the “outcome” decision altering the amount of the claimant’s entitlement and so, in an appeal against that outcome decision, the tribunal was bound to consider afresh all those elements, including the local authority’s determination of the number of occupiers in the reference to a rent officer (R(IB) 2/04 and R(H) 2/08 followed) (paragraph 22);
2. in the absence of a definition of “occupier” in the 2006 Regulations or the Rent Officers (Housing Benefit Functions) Order 1997 the starting point has to be regulation 7 of the Regulations (R v Housing Benefit Review Board for Swale Borough Council, ex parte Marchant [2000] 1 FLR 246; (2000) 32 HLR 856 followed) (paragraph 28);
3. the fundamental test in regulation 7 remains whether the dwelling is occupied as the home, the question of whether the dwelling is normally so occupied being relevant to whether that test is deemed to be satisfied, and though regulation 7(6) is exhaustive of the circumstances in which a person can be treated as occupying two dwellings as the home when there is a liability to make payments in respect of both dwellings, other paragraphs of the regulation deeming a particular dwelling to be occupied as the home in certain circumstances may by implication disapply the one dwelling only rule (paragraph 29);
4. regulation 7(13) directly deems a person to occupy a dwelling as the home, not normally to occupy, during a temporary absence, and so, while immediately before the beginning of the absence the person must have been normally occupying at least some part of the dwelling, what matters is the quality that the person’s occupation of the dwelling is intended to have when the intended return takes place (paragraph 31);
5. there can be no underlying test of what is the normal home in applying paragraphs (13), (16) and (17) as there can only be a point to the existence of those paragraphs if they enable decision-makers and tribunals to avoid having to make the difficult value judgments about which dwelling is normally occupied, but instead to rely on answers to more factual and limited questions (R v Penwith District Council, ex parte Burt (1990) 22 HLR 292 ; CH/3014/2005 ; Stroud District Council v JG [2009] UKUT 67 (AAC), reported as R(H) 8/09 considered) (paragraph 32);
6. it is implicit in regulation 7(13) and (16) and (17) that those provisions operate not only to cut through the issue of whether a person normally occupies a dwelling as his or her home, but also as an exception to the one dwelling only rule in regulation 7(1) (paragraph 37);
7. it followed that, since his intention was to return in 12 weeks to occupy the claimant’s property as his home, her son was only temporarily absent from what he had been occupying as his home and was therefore to be treated as continuing to occupy it, and there was not a ground to authorise the local authority’s reference to a rent officer nor was there a relevant change of circumstances to ground a supersession of the existing award of housing benefit (paragraph 41).
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