Social Security Case Law - Spring 2024

Headnote

Housing Benefit case.  A fact specific assessment is required when considering the correct approach and the meaning of ‘taking advantage of the housing benefit scheme’.

Background

The Applicant is 85 years old and lived in a privately owned property with her adult son.  The property was held under a shorthold tenancy agreement in her son’s name.  The Applicant’s son had an award of income support and a full housing benefit award from February 2010 – December 2019.  In December 2019 the Applicant’s son started work, his income support ended, and his housing benefit reduced from £300 per week to £66.83 per week.

The Applicant made a new claim for housing benefit in her own name in September 2020, and provided a tenancy agreement for the property.  The tenancy agreement was effective from August 2020, and named both the Applicant and her son as the tenants.  Further, the Applicant provided another tenancy agreement which indicated that the Applicant and her son had both been named as tenants of the property since February 2010.  This tenancy agreement was contrary to her son’s original tenancy agreement which formed the basis of his award of housing benefit.

In September 2020, a decision maker decided that the Applicant should be awarded £150 in housing benefit per week.  However, this decision was overturned in November 2020: the decision maker applied the below legislation and found that the Applicant was not liable to make payments in accordance with Regulation 9(1)(g):

• Regulation 9(1)(g) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit). Regulation 9(1)(g) provides that subject to the below exemption, a person who is liable to make payments in respect of a dwelling shall be treated as if they were not so liable if ‘before the liability was created, he was a non-dependant of someone who resided, and continues to reside, in the dwelling.’
• Regulation 9(3) – provides an exception to the above legislation, it will not apply; ‘in a case where the person satisfies the appropriate authority that the liability was not intended to be a means of taking advantage of the housing benefit scheme’.

The decision was reconsidered but not revised.  The Applicant appealed the decision and a FtT allowed the appeal, finding that the Applicant had always been a tenant of the property and that the Applicant fell within the exception of Regulation 9(3).  The Respondent appealed to the Upper Tribunal on the following grounds:

• The FtT findings were inconsistent re Regulation 9(3)
• The FtT fidings that the Applicant had always been a tenant were not supported by relevant evidence
• The FfT should not have followed CH/39/2007 and should instead have followed MP v Sutton London Borough Council (HB) [2021] UKUT 193 (AAC) re issue of whether the new tenancy agreement was a means of taking advantage of the housing benefit scheme.

Legal Issue

The Upper Tribunal had to consider (1) what the correct approach is and the meaning of ‘taking advantage of the housing benefit scheme’ (2) whether a family member living with a recipient of housing benefit is a tenant in their own right.

Decision

The Upper Tribunal allowed the appeal and set aside the decision.  The decision was then remitted for a fresh hearing.

In considering the grounds for appeal, the UT judge found that:

• Re FtT findings applying Regulation 9(1)(g) that the Applicant was always a tenant at the property and was not subject to the exception at regulation 9(3). The FfT erred in law but the error was not material as the FfT could have allowed the appeal on the grounds that the Applicant had always been a tenant.
• Re FtT findings that the Applicant had always been a tenant were not supported by relevant evidence. The Judge found that the FfT had materially erred in law as it failed to make findings of fact and did not give adequate reasons for its decision.  The Judge found that the FfT should have considered the strict contractual position between the Applicant and the landlord at the relevant times.
• Re FfT findings on the meaning of ‘taking advantage of the housing benefit scheme.’ The Judge found that:

‘….far from seeking in any way to change the approach to or redefine the term ‘take advantage’ Deputy Upper Tribunal Judge Rowland endorsed and adopted the approach in CH/39/2007.  Further, merely because the factual matrix in CH/39/2007 was different from that in MP and the present case, did not mean that the relevant propositions of law set out in CH/39/2007 did not apply.’

The Judge went on to state that whether the Applicant’s actions constituted ‘abuse’ or ‘taking improper advantage’ was a fact specific assessment to be carried out by the FfT and the FfT was entitled to consider if the Applicant’s actions could be described a ‘making the most of opportunities presented as opposed to abuse.

The Judge then confirmed that the FfT correctly directed itself as to the meaning of ‘take advantage and did not err in its approach.