Secretary of State for Work & Pensions v Selby District Council & Anor [2006] EWCA Civ 271

Case No C3/2005/1200[2006] EWCA Civ 271
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSION
MR CHARLES TURNBULL (COMMISSIONER)
Venue Royal Courts of JusticeDate Monday, 13 th February 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE WARD
LORD JUSTICE LATHAM
LORD JUSTICE HOOPER
Between
SECRETARY OF STATE FOR WORK AND PENSIONSAppellant- v -
Between
SELBY DISTRICT COUNCIL & ANRRespondent
(DAR Transcript ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MS M DEMETRIOUS (instructed by Office of the Solicitor, Department for Work and Pensions) appeared on behalf of the Appellant.MR P COPPEL (instructed by Selby District Council, Benefits Section, Civic Centre) appeared for Respondent.
J U D G M E N T

LORD JUSTICE WARD:

[1]The facts in this appeal are not in dispute. The late Mr Frederick Bowman was the tenant of a property at 26 Commercial Street, Tadcaster, and as such he was liable to make payments in respect of that dwelling. He was eligible for and was receiving from Selby District Council, the respondent to this appeal, housing benefit of some £44.88 per week. He was in frail health and on 22 July 2003, he moved into The Beeches Residential Care Home in Leeds in order to ascertain whether it was suitable for his needs. He entered that residential accommodation with the intention of returning to his home at 26 Commercial Street if the residential accommodation did not suit his needs.[2]By 19 August he had decided that he was happy at The Beeches, and on 25 August his daughter-in-law wrote on his behalf to the council informing them of that fact and of his having giving four weeks’ notice to his landlord to terminate his tenancy with effect from 3 September 2003. Sadly, he became very ill. He was admitted to hospital on 31 August and he died on 7 September 2003. The council terminated his entitlement to housing benefit with effect from 19 August and successfully sought to recover some £38-odd, being the overpayment of housing benefit which had been paid to the end of that benefit week, 24 August.[3]On appeal, the appeal tribunal held that the deceased would have been entitled to housing benefit to cover his rent until the tenancy expired on 3 September. On a further appeal to the Social Security Commissioner the Commissioner, Mr Charles Turnbull, decided on 14 January 2005 that the supercession should have taken effect only from 25 August 2003, the first day of the benefit week following the date on which the relevant change of circumstances had occurred. The deceased therefore remained entitled to his housing benefit up to and including 24 August 2003, which was the date up to which he had in fact been paid, and there was therefore no overpayment. The Secretary of State now appeals that decision with permission granted by Brooke LJ. The Bowman family have played no part in this appeal.

The law:

[4]The conditions to be satisfied for entitlement to housing benefit are set out in Section 130 of the Social Security Contribution and Benefits Act 1992, sub-section 1, providing that:
“A person is entitled to housing benefit if a) he is entitled to make payments in respect of the dwelling in Great Britain which he occupies as his home …”
The interpretation is dealt with in Section 137 and pursuant to Section 137(2)(h):
“Regulations may make provision for the purposes of this Part of the Act … (h) as to circumstances in which a person is or is not to be treated as occupying a dwelling as his home.”
Those regulations were made under the Housing Benefit General Regulations 1987 as they had been amended from time to time, and Regulation 5 describes the circumstances in which a person is or is not to be treated as occupying a dwelling as his home. The material regulations are these:
“(1) Subject to the following provisions of this regulation a person shall be treated as occupying as his home a dwelling normally occupied as his home a) by himself … “(5) Where a person is liable to make payments in respect of two (but not more than two) dwellings he shall be treated as occupying both dwellings as his home only … (d) in the case where a person has moved into a new dwelling occupied as the home, except where paragraph (4) applies, for a period not exceeding four benefit weeks if [he could not reasonably have avoided liability in respect of two dwellings]. “(5A) Where (a) a person has moved into a dwelling for which he is not liable to make payments (‘the new dwelling’); and b) immediately before that move he was liable to make payments for the dwelling he previously occupied as his home (‘the former dwelling’); and c) that liability continues after he has moved into the new dwelling, he shall be treated as occupying the former dwelling of his home for a period not exceeding four benefit weeks if he could not reasonably have avoided liability in respect of that former dwelling … “(7B) This paragraph shall apply to a person who enters residential accommodation (a) for the purpose of ascertaining whether the accommodation suits his needs, and (b) with the intention of returning to the dwelling which is normally occupied by him as his home should, in the event, the residential accommodation prove not to suit his needs, and (c) whilst part of the dwelling which is normally occupied by him as his home is not let or as the case may be sublet. “(7C) A person to whom paragraph (7B) applies shall be treated as if he is occupying his dwelling he normally occupies as his home for a period not exceeding, subject to an overall limit of 52 weeks on the absence from that home, 13 weeks beginning from the first day he enters residential accommodation. “(8) [Subject to paragraph (8C)] a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for [a period not exceeding 13 weeks beginning on the first day of that absence from the home] only if (a) he intends to return to occupy the dwelling as his home; and (b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and (c) the period of absence is unlikely to exceed [13 weeks] … “(8B) This paragraph shall apply to a person who is temporarily absent from the dwelling he normally occupies as his home (“absence”) if (a) he intends to return to occupy the dwelling as his home; and (b) while the part of the dwelling which is normally occupied by him has not been let, or as the case may be, sublet; and (c) he is [there follow a number of circumstances, for example being detained in custody or being in hospital]; and (d) the period of his absence is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely substantially to exceed that period. “(8C) A person to whom paragraph (8B) applies shall be treated as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence.”

The Commissioner’s decision:

[5]Mr Turnbull decided that, as he expressed it in paragraph 10 of his decision:
“It is reasonably clear that paragraphs (7B) and (7C) do not treat the claimant as occupying his former dwelling once he has become a permanent resident of the residential accommodation and so has ceased to intend to return to his former home.”
He gave three reasons for that, which I can summarise as follows. The first was, as he said in paragraph 11:
“Once the claimant’s former dwelling ceases to be a dwelling which he normally occupies as his home, because he has no intention to return to it, then in my judgment paragraph (7C) simply ceases to help him because he is no longer treated as occupying that dwelling.”
[6]The second reason was that if the tribunal were correct, it would mean that a person such as the claimant could continue to be entitled to housing benefit for up to 13 weeks after he ceased to have any intention to occupy his former home and that would mean that he had no incentive immediately to give notice terminating that tenancy. That he felt would be inconsistent with the tenor of, for example, Regulation 5(5)(d), which only allowed a period of grace not exceeding four weeks. His third reason related to Regulation 5(8B) and for him the important point there was that it was quite clear from the wording of those provisions that they ceased to apply when the claimant ceases to have any intention to return to occupy the dwelling as his home.[7]Finally, he thought that a person who is temporarily absent from his dwelling, but who then decides to leave permanently and gives notice terminating his tenancy, will cease to be treated as occupying the dwelling as from the moment when the intention not to return is formed.

(b) and upon the natural meaning of the words there:

“A claimant must enter the residential accommodation with an intention held at the time he enters that he would return home if the trial period in residential care proved to be unsuitable.”
The only material time at which to assess his intention was at the point of entry. A contrast, she submits, the temporal condition in 7(B)(c); contrast also the different language of Regulations 8 and (8B). (7C) she submits is to be understood for what it is, a deemed provision.[8]Mr Philip Coppel, for the council, starts with Regulation (7C). In summary his case is that, significantly, paragraph (7C) speaks of a dwelling which the claimant “normally occupies as his home” using the present tense of the verb. As a consequence it is clear that at any time during which a person wishes to claim housing benefit, he must at that time – and he emphasises those words, “at that time” – normally occupy the relevant property as his home. Had the draftsman wished to confirm entitlement to housing benefit in respect of a property which the claimant had previously normally occupied as his home, he could have framed paragraph (7C) accordingly, but he did not do so.

Discussion:

[9]These regulations have produced inconsistent interpretations from the department. In guidance issued in April 2002 the Secretary of State supported the case now advanced by the council. It was then the advice of the Secretary of State, set out in paragraph 3.186, that as soon as it is known that the claimant is remaining in residential care, then the housing benefit department should treat the absence as permanent and end housing benefit entitlement. But the Secretary of State changed his mind in April 2004 and began then to advance the case which is now advanced on his behalf by Ms Demetrious, that as soon as it is known that the claimant is remaining in residential care then the authorities are to treat the absence as permanent and end entitlement to housing benefit, but if the claimant has stayed less than 13 weeks in the home and has to pay rent in lieu of notice, then housing benefit can be paid for the shortest of four weeks; or the end of the 13-week period; or the notice period itself.[10]So the delicious irony of this appeal is that the Secretary of State does not seem to know what the Regulations drafted by himself really and truly mean, and he comes before us saying, in effect, “You clever chaps in the Court of Appeal sort it out for me please”. And of course, we are happy to do so; would that all our appeals were as short as this and as cogently and as well argued as this one.[11]I would start with the statute. The deceased was certainly liable to make payments in respect of the property and his liability continued up to the expiration of the four week period of notice. The question which arises is this: is this a dwelling which he occupies as his home? No question but that he did occupy it. So the question is whether he was occupying it as his home during the running of the notice period, even if he was absent from it during that time.[12]Without reference to the regulations, which are intended to describe the circumstances in which he is or is not to be treated as occupying the dwelling as his home, one might have thought that the wealth of authority covering different fields of law involving habitual or ordinary residents would give an easy answer, that there is nothing to prevent one having two homes. But we are forced to focus on the regulations, and so I turn my attention to them. I see at once that Regulation 5 does actually deal with the claimant occupying two homes, and under Regulation 5(d) he is able to claim benefit for four weeks, which happens to be the conventional period of notice to quit. I find this more supportive of the appellant’s case than the respondent’s and do not agree with the observations of the Commissioner to the contrary.[13]There is, however, no need to draw too closely on the analogy of two homes, because the plight of those moving into residential care is specifically provided for by the amendments introduced in 1985 and contained in Regulations (7B) and (7C). The purpose lying behind those amendments seems to be common ground. It was to give a trial period in the residential accommodation without losing entitlement to housing benefit for the home that the claimant normally occupies. That helps little in my judgment to resolve the issue of whether he has 13 weeks to make up his mind, or whether he loses his entitlement as soon as he has made up his mind. We must look at the language of the regulations. In my judgment, we have to start not, as Mr Coppel submits, with Regulation (7C) but with Regulation (7B) because that prescribes the conditions which have to operate before (7C) comes into effect at all.[14]As for (7B)(a), this is satisfied on the facts of the case. It is common ground that the purpose of entering The Beeches was to ascertain whether it was suitable for his needs. As for (7B)(b), I agree with Ms Demetrious that the language requires that the intention of returning to the dwelling which is normally occupied by him as his home must be present at the moment he enters the residential accommodation. The language is in the present tense. The language is plain. To satisfy (7B)(b) he must enter residential accommodation with the intention of going home if it does not work out satisfactorily for him. If the question is asked, which was the home which was normally occupied by Mr Bowman, it was 26 Commercial Street. He reserved his right to go back to it.[15]On the other hand, (7B)(c) is not a condition confined to the present. It does have a temporal span which covers the whole of his time in the residential accommodation. If at any time during his stay in residential care the dwelling ordinarily occupied by him is let, then he falls outside the parameters of (7B); so I see a difference between the time at which one concentrates for (7B)(b) purposes and the time at which one concentrates for (7B)(c) purposes.[16]How then does Regulation (7C) operate? Again the language makes that plain to me. He is treated – I emphasise treated – as if he is occupying the dwelling he normally occupies. It is therefore a deeming provision. The essence of a deeming provision is that black may be treated as white. He is therefore treated as still occupying his old home even though he has manifested the intention of not returning to it, or more accurately not returning to it after his right to exclusive possession has ended by operation of his notice to quit.[17]I am fortified in this conclusion by comparison with Regulations (8B) and (8C). (8C) provides a similar deeming provision to that set out in (7C) save that the period of grace is 52 weeks, not 13, but Regulation (8B)(a) is different. The qualifying condition here is that he intends by inference throughout the whole of the period of temporary absence to return to occupy the dwelling he normally occupies. So long as that intention remains, then for 52 weeks he remains eligible for benefit. Once, however, he changes his intention and no longer intends to return, then he loses entitlement. That argument is precisely the argument Mr Coppel advances as to the construction of Regulations (7B) and (7C), but the short answer to his argument is that if he is correct and if that was the intention to be given to Regulations (7B) and (7C), then the formulation used in (8B) and (8C) could have been deployed. It was not. (7B) and (7C) are differently expressed, and the meaning given to them by the Secretary of State is in my judgment correct.[18]I would therefore allow the appeal and declare that the deceased remained entitled to housing benefit during his lifetime and, had he lived, would have been entitled to housing benefit to the expiration of the notice to quit on 3 September 2003.

LORD JUSTICE LATHAM: I agree.

LORD JUSTICE HOOPER: I agree.

Order

Appeal allowed.