R v Housing Benefit Review Board and Another ex parte and Another
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MUNBY |
| Judgment Date | 22 June 2000 |
| Judgment citation (vLex) | [2000] EWHC J0622-7 |
| Date | 22 June 2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1657/1999 |
[2000] EWHC J0622-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr. Justice Munby
CO/1657/1999
MR. S. COX (Instructed by Messrs. Moss Beachley Mullem & Coleman WH1 1HA) appeared on behalf of the Applicant.
THE RESPONDENT was not present and was not represented.
Thursday, 22nd June 2000
Mr. Simon Cox moves on behalf of the Applicant, Ghalib Kadhim ("the Applicant") to quash the decision on 27th January 1999 of the Housing Benefit Review Board ("the Board") of the London Borough of Brent ("the Council") dismissing the Applicant's appeal and confirming a determination of the Council on or about 1st June 1998 that the Applicant was not entitled to housing benefit for the period from 11th January 1998 onwards.
The Board, although served and notified of the hearing date, has not appeared and is not represented.
The matter turns on regulations 7(1)(a)(i) and 3(4) of the Housing Benefit (General) Regulations 1987, SI 1987 No. 1971, which define, so far as material for present purposes, circumstances in which an otherwise qualified applicant is not entitled to housing benefit:
"7.[—(1)] The following persons should 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…"
and:
"3.—(4) For the purposes of … regulation 7 … a person resides with another only if they share any accommodation expect the bathroom, a lavatory or a communal area within the meaning prescribed in paragraph 7 of Schedule 1 …"
Paragraph 7 of Schedule 1 provides, so far as material, that:
"…'communal areas' mean areas (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation."
It is common ground (1) that at all material times the Applicant lived in the same house (a large, four-bedroom property) as his landlord, who was his brother; and (2) that his brother was a close relative within the meaning of regulation 7(1)(a)(i). It follows that the question for the Council and on appeal for the Board was whether, within the meaning of regulation 7(1)(a) the Applicant "resided" with his brother, related to which of course was the question whether they "shared" relevant accommodation within the meaning of regulation 3(4).
It is also common ground (1) that prior to about January 1998 the Applicant had indeed shared relevant accommodation —a living room and kitchen —with his brother; (2) that in August 1996 the Applicant in his application for housing benefit had declared that he shared that accommodation with his brother; and (3) that the Applicant had made no declaration of any change in his circumstances in subsequent housing benefit renewal forms, the most recent of which had been submitted on 18th December 1997.
Before the Board the Applicant's case, as set out in a skeleton argument submitted by his then legal representatives, was that by January 1998 the relationship between the Applicant and his sister-in-law had deteriorated. His sister-in-law no longer wished him to share any facilities with the family, this deterioration in relationship also affecting the Applicant's relationship with his brother. Although prior to January 1998 the Applicant accepts that there had been some contact with his bother and sister-in-law, by early 1998 that had virtually ceased, reflected in the fact that the Applicant had applied for a Social Fund loan, granted in or about March 1998, to enable him to purchase a fridge and a microwave for his room, those, so it was said, having been purchased and installed, with the consequence that since March 1998 the Applicant had been totally self-contained, storing food in his fridge, cooking in the microwave and washing dishes in the bathroom of which he by then had sole use.
It was further submitted in that skeleton argument that although prior to January 1998 the appellant had been residing with his brother within the meaning of the statutory language, following that date he no longer resided with his brother and family.
The Council's case, as set out in its written report to the Board, was that in March 1998 visiting officers had viewed the property and the Applicant's living arrangements and that when they arrived at the property the Applicant was found in the living room playing with his nephews in circumstances where it was clear to them that he did have use of that part of the property. He was asked to show the officers all the parts of the house that he used, and according to them he directed them to the kitchen also. According to the officers they did not notice any microwave in the room.
That version of events was challenged on behalf of the Applicant in the skeleton argument to which I have referred, it being said on behalf of the Applicant, who denied the account of the officers, that when they arrived at the property he was in his room, had answered the door and had showed them his room. He had not been playing with his nephews; indeed he did not have "nephews", having only one nephew and niece. Furthermore, his recollection was that neither the nephew nor the niece were present at the time the officers attended, he believing that they were either at school or asleep in their rooms upstairs.
Moreover, according to paragraph 17 of the Applicant's Form 86A (verified on oath by Mr. Penfold, who I am told was the solicitor who appeared for the Applicant before the Board):
"[The Applicant's] solicitors' oral submissions to the Board were that, wherever the truth lay about what was said at the visit, the purchase of the oven and refrigerator had changed matters so that on any approach he was not residing with his brother from that point."
The Board sat on 19th January 1999 and heard oral evidence from both the Applicant and from one of the Council's officers who had been present at the visit in March 1998. The Board set out its reasoning and conclusions as follows:
"Your application for benefit stated that you had use of the kitchen and living room of the property. You did not notify the Council of any change in those circumstances even when asked to notify any changes on Renewal Applications for benefit. The Board came to the view that you were making use of the living room at the property when you were visited by council officers in March 1998 and that at the time of the visit you showed the officers the kitchen and living room of the property as rooms of which you had use.
"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.
"You are not entitled to housing benefit because you are closely related to your landlord and are residing with him and are treated by Regulation 7(1)(a) as not liable to make payments of rent."
On behalf of the Applicant, Mr. Cox takes four points. First, he submits that the Board wrongly accepted the Council's submission in paragraph 1.2 of its report to the Board that "if particular areas of the accommodation are shared, then they must also be treated as residing with each other" —in other words, that the Board wrongly treated its finding that the Applicant and his brother "shared" relevant accommodation as determinative of the question whether the Applicant was "residing with" his brother. There is no doubt that the Board did just that: its decision was that "you share accommodation … and are therefore treated by regulation 3 as residing with your landlords (my emphasis)."
Mr. Cox submits that, on the true construction of regulation 7(1)(a)(i) and 3(4), "sharing" is a necessary but not a sufficient condition for a finding of "residing with" —in other words, that regulation 3(4) does not provide an exhaustive definition of the words "resides with" in regulation 7(1)(a). As he correctly observes, the point turns on the meaning to be given to the words "only if" in regulation 3(4).
Mr. Cox referred me to the unreported decision of Henry J. (as he then was) in R. v. Sutton London Borough ex parte Dadson (1987) November 20th; the unreported decision of the Court of Appeal in Borough of Thamesdown v. Goonery (1995) February 13th; and the decision of the House of Lords in Bate v. Chief Adjudication Officer [1996] 1 WLR 814, particularly the speech of Lord Slynn of Hadley at 823C to G. In Dadson, Henry J. was concerned to explore the meaning of the words "resides with" in regulation 26(2) of the Housing Benefits Regulations 1985, SI 1985 No. 677, which was to very much the same kind of effect as regulation 7(1) in the 1987 regulation but which contained no equivalent of regulation 3(4). Henry J. said:
"Basically, the task facing counsel for the applicant was this, that he had to show that in the natural and ordinary use of the English language, Mrs. Dadson was not residing with her son in those circumstances. If the inquisitive bystander had asked that question 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 other."
And then a little further on:
"The point really that comes out of those authorities is that there is no magic in the words 'residing with', and that the answer that would be given to...
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