CH 1073 2010, DH v Kirklees Metropolitan Borough Council and Secretary of State for Work and Pensions

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge J. Mesher
Judgment Date26 July 2011
Neutral Citation[2011] UKUT 301 (AAC)
Docket NumberCH 1073 2010
RespondentKirklees Metropolitan Borough Council and Secretary of State for Work and Pensions
Subject MatterHousing and council tax benefits
AppellantDH

[2012] AACR 16

(DH v Kirklees Metropolitan Borough Council and another (HB)

[2011] UKUT 301 (AAC))

Judge Mesher CH/1073/2010

26 July 2011

Housing benefit – liability for housing costs – treated as not liable to former partner – whether applies only where liability arises immediately after separation

The claimant was separated from her former husband and living in the matrimonial home. Some 14 years after they separated, she sold her share of the home to her former husband, and claimed housing benefit for rent payable to him. The local authority decided that she was not entitled to housing benefit on the ground that she fell within one or more of the categories in regulation 9(1) of the Housing Benefit Regulations 2006 of persons to be treated as not liable to make payments in respect of a dwelling. The First-tier Tribunal held that she was caught by regulation 9(1)(c), which provides that a person shall be treated as not liable where his liability is to a former partner and is in respect of a dwelling which he and his former partner occupied before they ceased to be partners. That provision is not subject to the exception in regulation 9(3) and therefore can apply to genuine claimants who have no intention of taking advantage of the housing benefit scheme. The First-tier Tribunal stated that it did not matter whether or not there had been other former partners during the relevant period. It also rejected an argument that regulation 9(1)(c) was inconsistent with Article 14 of the European Convention on Human Rights. The claimant appealed to the Upper Tribunal. Before the Upper Tribunal it was argued that regulation 9(1)(c) applied only to an immediate former partner, and that that required the liability to have arisen immediately on their ceasing to be partners. Also, and in addition to the human rights argument, it was submitted that the amending regulations that inserted the predecessor of regulation 9(1)(c) into the 1987 Regulations in January 1999 were invalid on the ground of a defect in the procedure by which the Social Security Advisory Committee (SSAC) agreed not to have the proposal for the amending regulations referred to it under section 172(1) of the Social Security Administration Act 1992 and also because the preamble to the amending regulations stated wrongly that there had been a reference to the SSAC. It was conceded on behalf of the Secretary of State that entitlement to housing benefit was a “possession” for the purposes of Article 1 of Protocol 1 to the European Convention on Human Rights, so that Article 14 on discrimination could be engaged in relation to the conditions of entitlement to housing benefit

Held, dismissing the appeal, that

  1. regulation 9(1) was designed to identify cases in which there was a risk of abuse of the housing benefit scheme, and as the categories may be drawn in a way that could produce rough justice, the narrowest interpretation consistent with the policy of protecting the scheme was required. To interpret regulation 9(1)(c) as applying only to the immediate former partner or the most recent former partner would be going beyond merely adopting the narrowest appropriate ordinary meaning into applying an artificially narrow meaning (paragraphs 15 to 23);
  2. it was evident from the relevant documentation that the SSAC had subjected the whole of the draft regulations to close analysis and had not been misled as to the specific effect of what became regulation 9(1)(c), and, whichever interpretation was adopted, the amending regulation introducing what became regulation 9(1)(c) was validly made (paragraphs 30 to 31);
  3. in the absence of a report from the SSAC, the mistake in the preamble to the draft regulations could not have misled Parliament in any material respect in any way that could affect the validity of the amending regulations (paragraphs 33 to 36);
  4. on the issue of discrimination, while the existence of some alternative response with a narrower scope could be a relevant factor in judging whether any difference of treatment was justified, that must always be subject to a judgment about how far the proposed alternative does the job of meeting the legitimate aim in question. There would be obvious practical difficulties and opportunities for avoidance in the suggested alternative of interpreting regulation 9(1)(c) as applying only where the liability arose immediately on separation of the partners and so a difference of treatment of the kind alleged in the present case was justified as a proportionate response to a legitimate aim and did not amount to discrimination contrary to Article 14 of the Convention (paragraphs 37 to 42).

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The claimant’s appeal to the Upper Tribunal is disallowed. The decision of the Wakefield First-tier Tribunal dated 26 January 2010 did not involve any error on a point of law and accordingly stands.

REASONS FOR DECISION

1. The tribunal was concerned with the local authority’s decision notified on 5 August 2009 that the claimant was not entitled to housing benefit on her claim of 28 April 2009. Since housing benefit and council tax benefit had apparently been awarded with effect from 13 April 2009 on 26 June 2009, the decision must in substance have been a revision of that initial decision. The ground given for non-entitlement was that she had owned the dwelling in question within the previous five years and it had not been shown that she could not have continued to occupy the dwelling without relinquishing ownership. Accordingly, under regulation 9(1)(h) of the Housing Benefit Regulations 2006 (SI 2006/213) she was to be treated as not liable to make payments in respect of the dwelling.

2. In the letter of appeal dated 12 August 2009, the claimant’s then representative, from Worklink – Dewsbury, explained the background as follows:

“[The claimant] would like you to consider fully that she could not have continued to occupy the dwelling without relinquishing ownership. In your decision, you do not state why her reasons for selling are not sufficient.

[The claimant] and her husband [H] got married in 1981. By 1993 the relationship had broken down irretrievably and the couple continued to live separate lives in the same home. [H] moved out in 1994 (ordered by law). In August 1998, the divorce was finalised. [The claimant] was taking care of the children and the home and the court ordered that she should continue to occupy it. It was a few years after that [the claimant] took on some debts whilst in work, to carry out home improvements; mainly to the kitchen and bathroom.

[The claimant] suffers from long term depression, and in 2007 she was off work for 12 months receiving sick pay then Incapacity Benefit. Through the CAB she negotiated with creditors (the financial statement has been sent to you as evidence). In summer 2007, both [the claimant and H] agreed to put the property on the market but were not made any serious offers (all £20,000 below the asking price).

Eventually, due to the stress and burden placed on her by her complicated debts, she reluctantly agreed to sell her interest in the property to her ex-husband in October 2007. I enclose evidence of a debt owed to Nationwide of £15,532.98 where a company called Shoosmiths took County Court action and were granted an interim charging order. This charging order, if made absolute, would therefore have affected her ex-husband’s interest also as they were then joint owners. At that time she felt that there was no option but to sell, in order to allow herself to pay this off without involving her ex-husband.

[Details were then given of how the claimant had spent the proceeds of £55,000, and that she had gone back to work, but become ill again in February 2009 and had to reclaim incapacity benefit]

[The claimant] sold her share as an absolute last resort. She would have preferred to keep it as a form of pension and was hesitant about having her ex-husband as her Landlord when she would have preferred a complete clean break, financially and emotionally. She could not, at that time, see any way of settling debts and bills and remaining in the family home which she vested time and money, and her own effort, into improving. Although suffering from depression is not an excuse, it is a factor that should be taken into consideration as to why [the claimant] was in pursuit of a financial clean slate together with some stability by remaining in her own home. [The claimant] was not in a fit state to rent anywhere unfamiliar at that time.”

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