R (Kadhim) v Brent London Borough Council Housing Benefit Review Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON |
| Judgment Date | 20 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1220-13 |
| Docket Number | Case No: CO/2000/2528 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2000 |
[2000] EWCA Civ J1220-13
Lord Justice Schiemann
Lord Justice Buxton and
Mr Justice Jacob
Case No: CO/2000/2528
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Cox (instructed by JR Jones, London,W5 3TA) for the Appellant
The Respondent did not appear and was not represented
This is the judgment of the court
History and nature of the case
This appeal raises a short but not altogether straightforward issue as to the proper construction of regulations 3 and 7(1)(a) of the Housing Benefit (General) Regulations 1987 [the Regulations]. Regulation 7(1)(a) addresses one of the cases in which a person otherwise eligible is not permitted to claim housing benefit under the Social Security Act 1992: where (for the moment putting the matter colloquially) the claimant lives with and pays rent to one of his relations. That exception from eligibility for benefit is achieved in Regulation 7 by treating such a person as if he were not paying rent at all, and that is done by providing, in Regulation 7(1), that
"The following persons shall be treated as if they were not liable to make payments in respect of a dwelling-
(a) a person who resides with the person to whom he is liable to make
payments in respect of the dwelling and�.
(i) that person is a close relative of his or his partner."
In the present case, there is no dispute that the "close relative" condition is satisfied, and we say no more about it. Guidance is, however, given as to residence in Regulation 3(4) which provides, inter alia for the purposes of Regulation 7(1), that
"a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area with the meaning prescribed in paragraph 7 of Schedule 1 [i.e. "areas (other than rooms) of common access (including halls and passageways)"]"
At all material times the applicant lived in the same house as his landlord, who was also his brother. It was common ground before the Board that until about January 1998 the applicant had shared relevant accommodation, a living room and kitchen, with his brother. The applicant's case was that thereafter relations had cooled, to the extent that he had withdrawn into his own bedroom, doing all his cooking there, and washing his dishes in a bathroom of which he had exclusive use. The local authority questioned the veracity of that account, stating that on inspection in March 1998 the applicant had appeared to be using the living room somewhat as a member of the family, and that no cooking facilities had been apparent in his bedroom. The Board, in its decision after a hearing in January 1999, accepted that the applicant had use of the kitchen and living room, and continued:
"The unanimous decision of the Board members is that you share accommodation additional to a bathroom, lavatory or passageway with your brother and his family, namely the kitchen and the living room, and are therefore treated by Regulation 3 as residing with your landlord."
In the present proceedings for judicial review of the Board's determination the applicant made two, different, complaints. The first was effectively that the determination was insufficiently reasoned, or alternatively could not be shown to have addressed the relevant facts, principally because no consideration appeared to have been given to evidence as to the applicant's detailed circumstances in March 1998, nor to evidence about changes in those circumstances between March 1998 and January 1999. The judge found those criticisms to be well-founded, and ordered the case to be remitted for further consideration by a differently constituted Board. There is no appeal against that decision, and in any event it was, if we may venture to say so, plainly correct. We do not address it further.
The second complaint was more fundamental, and gives rise to the subject-matter of this appeal. The effect, and indeed the express terms, of the Board's decision as set out above was that from their finding that the applicant was sharing with his landlord accommodation other than bathroom, lavatory or communal area it necessarily followed that, by the operation of Regulation 3, the applicant was "residing with" the landlord. The Board appears to have been led to that conclusion by guidance based on the decision of this court in Borough of Thamesmead v Goonery (unreported, 13 February 1995) [ Goonery], a case to which I shall have to return. The applicant's complaint is that while the fact of the applicant's use of the living room and kitchen, if indeed established, would be highly relevant to a consideration of whether he was residing with his brother, it was not, as the Board had thought, conclusive of that latter question. In order to elucidate that point the applicant sought, and now seeks from this court, a declaration that
"A finding that a claimant shares accommodation (within the meaning of regulation 3 paragraph (4) of the Housing Benefit (General) Regulations 1987) with his landlord is a necessary but not a sufficient condition for the finding that he resides with that landlord (for the purposes of that paragraph)."
The decision of Munby J
In what was, if we may be permitted to say so, a full and careful judgment Munby J first considered the natural or expected meaning of the term "resides with", which is the factual matter that has to be determined under Regulation He gained assistance from a decision of Henry J, R v Sutton LBC ex p Dadson (unreported, 20 November 1987) [ Dadson], which concerned the implications of this same expression as used in the then equivalent regulations, regulation 26(2) of the Housing Benefits Regulations 1985. Henry J held that the question had to be decided according to the natural and ordinary use of the English language, and continued:
"If the inquisitive bystander had asked that question [whether Mrs Dadson was residing with her son] of either Mrs Dadson or her son, I am quite satisfied in the circumstances of this case that each would have said that they were residing with the other�there is no magic in the words "residing with", andthe answer that would be given to that question by the man in the street is likely to be the right answer in law."
Munby J found compelling the submission based on Dadson that "reside" was an ordinary English word, which in the absence of statutory counter-indication had to be given its ordinary meaning: a view also taken, in respect of different regulations, by Lord Slynn of Hadley in Bate v Chief Adjudication Officer [1996] 1 WLR 814. Regulation 3(4) did not, in its natural meaning, provide such counter-indication so as to substitute for a general approach to the meaning of reside a statutory rule that where persons share any accommodation other than bathroom, lavatory or communal areas they necessarily reside with each other. The judge held that the natural meaning and implication of the expression "only if" in Regulation 3(4) was to impose a necessary, but not a sufficient, condition for a finding of residence. That consideration is reinforced by the fact that Regulation 3(4) was introduced into the regulatory scheme at some time after the decision in Dadson, the scheme addressed in that case by Henry J containing only a provision equivalent to the now Regulation 7(1). We have been shown no background material to that legislative departure, but it would seem that it could have had only two, alternative, purposes: (A) to substitute the rule as applied by the Board for the approach adopted in Dadson; or (B) to exclude from the discretion of the Board any power to find residence cases where the only shared accommodation was bathroom, lavatory or communal area. If the objective was (A) it seems almost impossible that the draftsman would have adopted the language of Regulation 3(4). By contrast, that language is very apt to achieve objective (B).
Left to himself, therefore, Munby J would have granted the declaration sought. He however considered himself precluded from doing so by the contrary decision in Goonery, which he said it was his duty loyally to follow. He saw the point as one of considerable importance, and gave leave to appeal to this court.
The appeal
The appeal solely concerns whether it is open to this court to grant the declaration sought in the face of the decision in Goonery. That is an issue of importance in respect of the court's rules of precedent; and also of substantial importance in respect of the rules for eligibility for housing benefit, and the custody of the substantial amount of public funds that is allocated to that benefit. It was therefore most unfortunate that the London Borough of Brent decided that it would neither oppose the granting of the relief sought nor appear before the court, any more than it had appeared before Munby J; and that the Secretary of State, although invited to do so, declined to appear as an intervener. It is to be hoped that in future cases involving points of principle affecting eligibility for grants from public funds a different attitude will be taken.
We were therefore constrained to rely on the submissions of Mr Simon Cox for the applicant (which, it need not be said, properly drew to our attention all matters that Mr Cox was aware of that might be contrary to his case); together with such research as the court has been able to put together from its own resources.
The construction of Regulation 3(4)
Absent authority, we are entirely...
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