“(1) A person is entitled to housing benefit if- (a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; (b) there is an appropriate maximum benefit in his case; and (c) either: (i) He has no income or his income does not exceed the applicable amount; or (ii) His income exceeds that amount but only by so much that there is an amount remaining if the deduction for which subsection 3(b) below provides is made. (2) In subsection (1) above “payments in respect of a dwelling” means such payments as may be prescribed, but the power to prescribe payments does not include power to prescribe- (a) payments to a billing authority or to a local authority in Scotland in respect of council tax; (b) mortgage payments, or, in relation to Scotland, payments under heritable securities.” (a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; (b) there is an appropriate maximum benefit in his case; and (c) either: (i) He has no income or his income does not exceed the applicable amount; or (ii) His income exceeds that amount but only by so much that there is an amount remaining if the deduction for which subsection 3(b) below provides is made. (a) payments to a billing authority or to a local authority in Scotland in respect of council tax; (b) mortgage payments, or, in relation to Scotland, payments under heritable securities.”
“long tenancy”, “owner” and “shared ownership tenancy” are defined in regulation 2 as: “long tenancy” means a tenancy granted for a term of years certain exceeding twenty one years, whether or not the tenancy is, or may become, terminable before the end of that erm by notice given by or to the tenant or by re-entry, forfeiture(or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal unless it is a lease by sub-demise from one which is not a long tenancy; “owner” means- (a) In relation to a dwelling in England and Wales, the person who, otherwise than as a mortgagee in possession is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners; “shared ownership tenancy” means- (a) In relation to England and Wales, a lease granted on payment of a premium calculated by reference to a percentage of the value of the dwelling or the cost of providing it.”
“69(1) Subject to paragraphs (3)9, (6) (7) and (9), f at any time between the making of a claim and a decision being made to it, or during the award of housing benefit there is a change of circumstances which the claimant, or any person by whom or on whose behalf sums payable by way of housing benefit are receivable, might reasonably be expected to know might affect the claimant’s right to, the amount of or the receipt of housing benefit, that person shall be under a duty to notify that change of circumstances by giving notice to the designated office- (a) In writing; or (b) By telephone- (i) where the relevant authority has published a telephone number for that purpose or for the purposes of regulation 64 (time and manner in which claims are to be made) unless the authority determines that in any particular case or class of case notification may not be given by telephone; or (ii) in any case or class of case where the relevant authority determines that notice may be given by telephone; or (c) By any other means which the relevant authority agrees to accept in any particular case. 81.-(1) Any overpayment, except one to which paragraph (2) applies, shall be recoverable. (2) Subject to paragraph (4) this paragraph applies to an overpayment which arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or any notice relating to that payment, reasonable have been expected to realise that it was an overpayment. (3) In paragraph (2), ‘overpayment which arose in consequence of official error’ means and overpayment caused by a mistake made whether in the form of an act or omission by- (a) the relevant authority; (b) an officer or person acting for that authority; (c) an officer of- (i) the Department for Work and Pensions; (ii) Revenue and customs acting as such; or (d) a person providing services to the Department for Work and Pensions or to the Commissioners for her Majesty’s Revenue and Customs, where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute o that mistake, act or omission.” (a) In writing; or (b) By telephone- (i) where the relevant authority has published a telephone number for that purpose or for the purposes of regulation 64 (time and manner in which claims are to be made) unless the authority determines that in any particular case or class of case notification may not be given by telephone; or (ii) in any case or class of case where the relevant authority determines that notice may be given by telephone; or (c) By any other means which the relevant authority agrees to accept in any particular case. (2) Subject to paragraph (4) this paragraph applies to an overpayment which arose in consequence of an official error where the claimant or a person acting on his behalf or any other person to whom the payment is made could not, at the time of receipt of the payment or any notice relating to that payment, reasonable have been expected to realise that it was an overpayment. (3) In paragraph (2), ‘overpayment which arose in consequence of official error’ means and overpayment caused by a mistake made whether in the form of an act or omission by- (a) the relevant authority; (b) an officer or person acting for that authority; (i) the Department for Work and Pensions; (ii) Revenue and customs acting as such; or (d) a person providing services to the Department for Work and Pensions or to the Commissioners for her Majesty’s Revenue and Customs, where the claimant, a person acting on his behalf or any other person to whom the payment is made, did not cause or materially contribute o that mistake, act or omission.”
“entitled to dispose of the fee simple whether or not with the agreement of other joint owners”
“entitled to dispose of the fee simple, whether or not with the consent of other joint owners.”
“36. As Mr Commissioner Turnbull (as he then was) explained in R(H) 8/07 in respect of theHousing Benefit Regulations 1987 (which are not materially different on this point from the 2006 regulations) “9… there is no requirement in the definition of “owner “that the claimant should be the proprietor of any long leasehold interest in the dwelling which may have been granted… “9… there is no requirement in the definition of “owner “that the claimant should be the proprietor of any long leasehold interest in the dwelling which may have been granted… 10. It is true that, for most practical purposes, Miss B, rather than the claimant, would be regarded as the “owner” of the flat. She has a lease of it at a rent which is little more than nominal and the lease still has some 71 years to run. However, as I have said, “owner” is defined by reference to the ability to dispose of the fee simple in the dwelling and not by reference to the ability to dispose of any long leasehold interest in It which may have been granted. [remainder of quote left out]”
“It is quite plain that these two people were in equity tenants in common… one was in occupation of the house. The other not. Now the common law said clearly that one tenant in common is not entitled to rent from another tenant in common, even though that other occupies the whole… the mere fact that one tenant was in possession and the other out of possession did not give the one that is out any claim for rent…As between tenants in common, they are both equally entitled to occupation and one cannot claim rent from the other.”
“I simply wish to add my own endorsement of the observations made by Snowden J in the passage at [61] to [64] of his judgment in Davis v Jackson. The starting point in every case is that a co-owner in occupation is not obliged to pay occupation rent merely because he is living in the property and the co-owner is not. Something more has to be shown which makes it just and equitable that he should pay that other owner for his use and occupation of the property – for example that he is exploiting the property for his own financial gain, or that he has precluded the co-owner from exercising a right of occupation that he (or she) wished to exercise. The focus should therefore be on the behaviour of the person in occupation.”
“11. Regulation 10 of theHousing Benefit (General) Regulations 1987 (now regulation 12 of the housingBenefit Regulations 2006 ) provides that the payments in respect of which housing benefit is payable are the periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home listed in regulation 10(1)(a) to (j). The following are relevant to this case. (a) Payments of, or by way of, rent; (b) Payments in respect of a licence or permission to occupy the dwelling; (c) Payments in respect of, or in consequence of, use and occupation of the dwelling. 12. The Secretary of State submits that none of these cover the payments made by the claimant in this case, for the following reasons: (a) Section 13(6)(a) of the 1996 Act refers to payment by way of compensation to the beneficiary whose entitlement has been excluded or restricted. It is significant that the legislation refers to compensation, rather than rent. (b) It is a defining feature of rent paid under a tenancy or a licence to occupy is that the rent is paid in consideration of the grant by the landlord of a right to occupy the property. In this case, the claimant already had a right to occupy. The money she paid her son was not paid in order to secure that right. Rather it was paid to compensate him for restrictions on his rights as beneficial owner, particularly his right to occupy or rent out the property to a third party. (c) The housing benefit scheme as a whole is intended to cover payments made to secure occupation, not payments made to compensate another person for not exercising a right to occupy; (d) If the payments which were made to the claimant’s son were repayments of the remortgage loan, they would not be rent within the meaning of the housing benefit regulations. The claimant’s liability to make such payments arose as a result of acquiring a beneficial interest in the property, not in consequence of her use and occupation of the dwelling.” (a) Payments of, or by way of, rent; (b) Payments in respect of a licence or permission to occupy the dwelling; (c) Payments in respect of, or in consequence of, use and occupation of the dwelling. (a) Section 13(6)(a) of the 1996 Act refers to payment by way of compensation to the beneficiary whose entitlement has been excluded or restricted. It is significant that the legislation refers to compensation, rather than rent. (b) It is a defining feature of rent paid under a tenancy or a licence to occupy is that the rent is paid in consideration of the grant by the landlord of a right to occupy the property. In this case, the claimant already had a right to occupy. The money she paid her son was not paid in order to secure that right. Rather it was paid to compensate him for restrictions on his rights as beneficial owner, particularly his right to occupy or rent out the property to a third party. (c) The housing benefit scheme as a whole is intended to cover payments made to secure occupation, not payments made to compensate another person for not exercising a right to occupy; (d) If the payments which were made to the claimant’s son were repayments of the remortgage loan, they would not be rent within the meaning of the housing benefit regulations. The claimant’s liability to make such payments arose as a result of acquiring a beneficial interest in the property, not in consequence of her use and occupation of the dwelling.”