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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2008] UKUT 26 (AAC) (01 December 2008) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2008/26.html Cite as: [2008] UKUT 26 (AAC) |
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[2008] UKUT 26 (AAC) (01 December 2008)
Decision of the Upper Tribunal
(Administrative Appeals Chamber)
This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:
The decision of the Stratford appeal tribunal under reference 249/07/00357, held on 25 October 2007, did not involve the making of an error on a point of law.
I shorten to one month the time within which an application for permission to appeal to the Court of Appeal may be made: rule 5(3)(a) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (No 2698).
Reasons for Decision
A The jurisdiction of the Upper Tribunal
B The issue and how it arises
C The appeal to the appeal tribunal
D The oral hearing
E Housing benefit legislation
F The case law
G The housing benefit scheme as a whole
H Analysis
I Council tax benefit
J Disposal
A. The jurisdiction of the Upper Tribunal
B. The issue and how it arises
C. The appeal to the appeal tribunal
'Reasons: [The two flats] adjoin each other and have been knocked through to provide accommodation for the one family of 12 people (including the new baby). Although the two flats are technically let through different landlords [the first] is let by the freeholder while [the second] is let by a charitable trust which sublets from the freeholder they are in practical terms one dwelling.'
D. The oral hearing
E. Housing benefit legislation
'130 Housing benefit
(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; '
'137 Interpretation of Part VII and supplementary provisions
(1) In this Part of this Act, unless the context otherwise requires-
"dwelling" means any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises; '
'The language of the section should, I think, be considered as a whole, and such consideration will, I submit, be more likely to reveal the intention than an attempt to analyse each word or phrase separately'
'137 Interpretation of Part VII and supplementary provisions
(2) Regulations may make provision for the purposes of this Part of this Act-
(h) as to circumstances in which a person is or is not to be treated as occupying a dwelling as his home;
(i) for treating any person who is liable to make payments in respect of a dwelling as if were not so liable;
(j) for treating any person who is not liable to make payments in respect of a dwelling as if were so liable;
(k) for treating as included in a dwelling any land used for the purposes of the dwelling; '
'7. Circumstances in which a person is or is not to be treated as occupying a dwelling as his home
(1) Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home
(a) by himself or, if he is a member of a family, by himself and his family;
and shall not be treated as occupying any other dwelling as his home.
(2) In determining whether a dwelling is the dwelling normally occupied as a person's home for the purpose of paragraph (1) regard shall be had to any other dwelling occupied by that person or any other person referred to in paragraph (1) whether or not that dwelling is in Great Britain.
(6) 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
(c) in the case where, because of the number of persons referred to in paragraph (1), they have been housed by a housing authority in two separate dwellings; '
'191 Interpretation - general
In this Act, unless the context otherwise requires-
"housing authority" means a local authority or a new town corporation or the Development Board for Rural Wales; '
F. The case law
'26. Because the single word is expanded into a phrase "dwelling occupied as the home" I am given the impression that the legislature intended to convey the function to be served by the concept of a dwelling rather than to connote its constituent elements, the bricks and mortar of the dwelling. The function is a place serving as home for the claimant. That place is not necessarily confined to a single building.'
'30. Commonsense dictates that the court can construe the words in a way which does not make them unworkable or impractical.'
G. The housing benefit scheme as a whole
H. Analysis
'24. Lord Reid was here making the well-known distinction between the meaning of a word, which depends upon conventions known to the ordinary speaker of English or ascertainable from a dictionary, and the meaning which the author of an utterance appears to have intended to convey by using that word in a sentence. The latter depends not only upon the conventional meanings of the words used but also upon syntax, context and background. The meaning of an English word is not a question of law because it does not in itself have any legal significance. It is the meaning to be ascribed to the intention of the notional legislator in using that word which is a statement of law. It is because of the nature of language that, in trying to ascertain the legislator's meaning, it is seldom helpful to make additions or substitutions in the actual language he has used.'
I. Council tax benefit
'131 Council tax benefit
(1) A person is entitled to council tax benefit in respect of a particular day falling after 31st March 1993 if the following are fulfilled, namely, the condition set out in subsection (3) below
(3) The main condition for the purposes of subsection (1) above is that the person concerned-
(a) is for the day liable to pay council tax in respect of dwelling of which he is a resident;
(11) In this section "dwelling" and "resident" have the same meaning as in Part I or II of the Local Government Finance Act 1992.'
'3 Meaning of "dwelling"
(1) This section has effect for determining what is a dwelling for the purposes of this Part.
(2) Subject to the following provisions of this section, a dwelling is any property which
(a) by virtue of the definition of hereditament in section 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force; and
(b) is not for the time being shown or required to be shown in a local or a central non-domestic rating list in force at that time; and
(c) is not for the time being exempt from local non-domestic rating for the purposes of Part III of the Local Government Finance Act 1988 ("the 1988 Act");
and in applying paragraphs (b) and (c) above no account shall be taken of any rules as to Crown exemption.'
'6 Persons liable to pay council tax
(5) In this Part, unless the context otherwise requires-
"resident", in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling.'
'"hereditament" means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list.'
J. Disposal
Signed on original on 01 December 2008 |
Edward Jacobs Upper Tribunal Judge |