CH 3933 2006
| Jurisdiction | UK Non-devolved |
| Judge | Judge P. L. Howell Q.C. |
| Judgment Date | 26 July 2007 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CH 3933 2006 |
| Subject Matter | Housing and council tax benefits |
R(H) 3/08
|
Mr P L Howell QC Commissioner 26 July 2007 |
CH/3933/2006 |
Council tax benefit – dwelling – sole or main residence
The claimant owned a two bedroom, ground floor flat and his parents owned, but did not occupy, the flat above. In 2003 the claimant, who now had nine children, made an informal agreement with his parents to extend his occupation into the flat above, using the upstairs flat for sleeping accommodation and the downstairs one for general living purposes. The properties remained self-contained units valued as separate hereditaments for rating and council tax purposes: the local authority allowed council tax benefit on the first flat only. The claimant appealed and the tribunal accepted that the family occupied both properties as their home and that the claimant was liable for council tax on both properties but concluded that, as the two flats were on the valuation list as two separate units they could not be classed as a single hereditament. It held that the legislation did not provide for council tax benefit to be paid for two separate dwellings and therefore upheld the local authority’s decision, holding that the main residence was flat 1 and the claimant could not therefore qualify for benefit on flat 2. The claimant appealed to the Commissioner, arguing that he occupied both flats together as one combined residence, which was his sole or main residence. The question before the Commissioner was whether (for both liability and benefit purposes alike) a person could be a “resident” in terms of section 6(5) Local Government and Finance Act 1992 in two contiguous properties, being occupied together as one combined residence, when the properties remained on the valuation list as two hereditaments and were thus taxed as two chargeable dwellings rather than a single one
Held, allowing the appeal, that:
- the tribunal had misdefined the issue by conflating the meaning of “dwelling” with “residence” and assuming that for the purposes of section 6 of the Local Government Finance Act 1992 the two must always and necessarily be coterminous. Following Frost v Feltham [1981] 1 WLR 452, “sole or main residence” is a question of fact and degree and the correct approach is to weigh up the nature and extent of the relationship between the person concerned and each of the premises at issue (paragraphs 7, 14 and 15);
2. section 131 of the Social Security Contributions and Benefits Act 1992, as amended, states that the principal condition to qualify for council tax benefit is that the claimant is liable to pay council tax in respect of a dwelling of which he is a resident, the definitions of “dwelling” and “resident” for this purpose being those given in the Local Government Finance Act 1992 in connection with council tax liability. Therefore as the claimant was liable for council tax on both flats as a resident, he similarly qualified for council tax benefit on both as a resident (Stevens v East Hampshire DC and another [1994] RA 73 considered) (paragraphs 2, 9, 16 and 17).
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This appeal by the claimant must be allowed, as in my judgment the Enfield appeal tribunal on 30 May 2006 (Ms P Desai, chairman, sitting alone), in an otherwise admirable decision, misdirected itself in law on the meaning of “resident” for the purposes of council tax benefit under section 131 Social Security Contributions and Benefits Act 1992 as amended, in holding that the claimant could not qualify for that benefit in respect of more than one of the two adjoining flats he was in fact residing in and occupying together with his large family as a single combined home.
2. I set the decision aside and exercise the power in paragraph 8(5)(a) Schedule 7 Child Support Pensions and Social Security Act 2000 to substitute the decision I consider the tribunal should have given on the facts it found, namely that as he was liable in those circumstances for council tax on both flats as a “resident”, the claimant similarly qualified for council tax benefit as a “resident” of both, even though the tax was still assessed and payable in respect of them as two separate chargeable dwellings.
3. As recorded by the tribunal chairman in her very clear and well set out statement of reasons issued to the parties on 30 August 2006 at pages 37 to 39, the facts of the case are not in dispute. At all material times the claimant has been resident in a downstairs flat (flat no 1) which he has owned since he bought it some 20 years ago. This property is a two bedroom and two living room flat in a block of flats. The claimant’s household now consists of himself, his wife and their nine children. His parents own the upstairs flat, flat no 2, immediately above in the same block of flats, having bought their flat about 10 or 12 years ago and initially rented it out. They had...
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