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Neutral Citation Number:	2012 UKUT 12 AAC
Reported Number:
File Number:	CH 171 2011
Appellant:	Wychavon District Council
Respondent:	EM
Judge/Commissioner:	Other Judges / Other Commissioners/Deputy Commissioners
Date Of Decision:	06/01/2012
Date Added:	02/02/2012
Main Category:	Housing and council tax benefits
Main Subcategory:	liability, commerciality and contrivance
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 41 Housing benefit – liability of person without contractual capacity for reasonable cost of accommodation Upper Tribunal procedure – review under rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 where a legislative provision overlooked The claimant was profoundly disabled from birth and lived in a home specially constructed for her and paid for by her parents by way of a mortgage. She applied for housing benefit on the basis of a tenancy agreement dated 26 February 2009 expressed to be between her father as landlord and herself as tenant. She was unable to sign the agreement as she was unable to communicate at all and the local authority refused the claim. In February 2010 an order was made in the Court of Protection giving her mother power to act in certain respects on her behalf. The First-tier Tribunal held, following CH/2121/2006, that she was bound in common law by the terms and conditions of the contract which was voidable and not void and that she was liable to make payments in respect of a dwelling which she occupied as her home. On the local authority’s appeal, the judge of the Upper Tribunal concluded that she had no liability to pay rent on the basis of a document to which she was not a party and of which she had no knowledge or means of knowledge and that there was no other basis on which any liability for rent could be imposed on her prior to the date of the decision. The claimant appealed on the grounds that the judge was wrong in deciding that there was no contract and also that he had failed to consider her liability to pay a reasonable sum in respect of her occupation of the property by virtue of the provisions of section 7 of the Mental Capacity Act 2005 concerning payment for necessary goods and services. As a legislative provision had been overlooked in the making of the decision, the judge reviewed his decision under rule 45(1)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 in accordance with rule 46. Held, reviewing the earlier UTAAC decision, setting it aside and re-deciding the matter, that: 1. although the claimant had no contractual liability to pay rent, the accommodation was a necessary and either at common law or under section 7 she was liable to pay a reasonable sum in respect of the accommodation. That liability was a liability with section 130(1)(a) of the Social Security Contributions and Benefits Act 1992 in respect of which she was entitled to housing benefit (paragraphs 27 to 29); 2. the First-tier Tribunal judge was in error of law in basing his decision on contract and his decision was therefore set aside and a new decision substituted to the effect that the claimant was under an obligation to her parents to pay a reasonable sum for her accommodation equal to the rent provided for in the putative tenancy agreement (paragraph 32). The matter was remitted to the local authority to calculate the claimant’s entitlement to benefit accordingly.
Decision(s) to Download:	CH 0171 2011-01.doc [2012] AACR 41bv.doc