IN THE UPPER TRIBUNAL	Appeal No.  CH/270/2009
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S. M. Lane

This decision is made under section 12(1) and (2)(a) and (b)(i) of The Tribunals, Courts and Enforcement Act 2007  

The appeal by the London Borough of Bexley is allowed.  The decision of the First-tier Tribunal (Social Entitlement Chamber) heard on 20/8/08 under reference 168/08/02317 is SET ASIDE because its making involved an error of law.  I RE-MAKE the decision as follows:

	The claimant is entitled to Housing Benefit on the basis that the dwelling’s occupiers are a married couple comprising the claimant and her husband.  The Housing Benefit as originally calculated on that basis of £138. 46 per week was correct.

REASONS FOR DECISION

1.	The appellant is the local authority in this appeal.  It appeals with my permission against the First-tier Tribunal’s decision which erroneously allowed the claimant’s appeal against the Authority’s decision of 6/11/07, notified on 7/11/07.  The decision was to award Housing Benefit of £138.46 per week based on the fair rent determined by the rent officer on the basis that the property was occupied by a married couple comprising the claimant and her husband.

2.	I held an oral hearing of the appeal at Harp House on 7 December 2009, which was attended by the claimant’s husband, B, who has acted as her representative throughout this dispute, and the claimant’s father, D.  The Authority was represented by Mr Clarke and his colleague Ms Cambridge.

The agreed facts 

3.	The claimant was at all material times living with her husband in the appellant Authority’s area.   She suffers from mental health problems as a result of which she requires supervision night and day to ensure that she does not harm herself.  She receives DLA at the highest rate of the care component and the lower rate of the mobility component to reflect her needs.  Her husband acts as her carer.  They have no children.  The claimant’s parents live nearby in a house which they own.  They help care for the claimant when her husband is away, especially if this is overnight.  The couple want to stay in their current neighbourhood because they are near the claimant’s parents.  

4.	The claimant notified the Authority that they were moving to a new dwelling which comprised a kitchen, living room, bathroom and three bedrooms, one of which is said to be very small.  There was some confusion over the use of these rooms, with the husband initially saying that the landlady retained use of the smallest bedroom, but at the hearing, he accepted that this was simply because the couple allowed the landlady to do so.  He could hardly say otherwise as the lease gave the couple exclusive possession of the property.  The contractual rent was £925 per calendar month.  The couple did not identify anyone else as living with them in the change of circumstance notification.    

5.	The notification acted as a supersession request.  On 14/5/07, the Authority referred the claim to the rent officer, as it was obliged to do under regulation 14 of the Housing Benefit Regulations 2006, to determine a fair rent on the basis that the dwelling was occupied by a couple.  The Rent Officers (Housing Benefit Functions) Order 1997 (‘the Order’) lays down the criteria that the Rent Officer must apply.  He determined that, under the standards laid down in the Order, the claimant was over-accommodated and that £600 reflected the cost of a property appropriate for the claimant’s needs.  The Authority used the figures at which the Rent Officer arrived in calculating the amount of Housing Benefit that could lawfully be awarded.  On 24/5/07, they decided that £138.46 per week was payable.  In June 2007, the couple requested discretionary housing payments (‘DHPs’) which were initially awarded until 24/9/07, but these were extended until the contractual end of the tenancy on 9/1/08.  The Authority said it would not extend the DHPs further, but I was told at the hearing that they had done so.  

6.	Following further correspondence about the award and notification of the claimant’s DLA award, the Authority decided on 6/11/07 that there was no change in Housing Benefit entitlement.  The husband requested a review of this decision, which resulted in no change.  At this point, there is some confusion over whether the claimant was disputing Housing Benefit or DHPs but the Authority has rightly accepted that the correspondence amounted to an appeal against the award of Housing Benefit.  The ground of appeal was that the couple should be entitled to a higher amount of benefit to reflect their need for a spare bedroom.  

The Regulations in more detail

7.	The Housing Benefit Regulations 2006 (‘the Regulations’), made under section 130(4) of the Social Security Contributions and Benefits Act 1992, require that the maximum rent to be taken into account in deciding how much HB is to be paid is to be fixed by reference to certain determinations made by a Rent Officer.  

8.	Under regulation 114, an Authority referring a claim to the Rent Officer for determination must supply him with the information he needs to carry out his duties under the Order.  One of pieces of information that must be supplied is the number of occupiers in the dwelling, so that the Rent Officer can determine whether the dwelling exceeds the size appropriate for the number and type of occupiers residing there (‘the size criteria’).  The applicable provisions are found in found in Schedule 1, article 2 and Schedule 2, article 2[1] and [2] of the Order.  Under the size criteria, a couple with no one else residing with them is permitted one bedroom plus one other room suitable for living (leaving aside the kitchen and bathroom).  On these criteria, the claimant and her husband were over-accommodated since they had a total of 3 ‘bedrooms’ and a further room suitable for living.  I am not concerned with whether the third bedroom was too small to be suitable for living.  

9	It is obviously important that that the Authority gives the Rent Officer the correct information regarding the number of occupiers in the dwelling for two reasons:  (i) the Rent Officer’s determination is not cannot be appealed in and of itself; and (ii) the Rent Officer has no discretion to increase the number of rooms which are appropriate.

The right of appeal

10	Under Schedule 7, paragraph 6(1) of the Child Support, Pensions and Social Security Act 2000 only a ‘relevant’ decision can be appealed.  A relevant decision is defined as a decision on a claim, or a supersession of such a decision.  For simplicity, I will use the term ‘award’ to cover entitlement decisions and supersession decisions.  The Rent Officer’s decision is not a relevant decision.  It does not decide whether an award will be made or superseded.  It is, rather, a determination (or series of determinations) which provides a figure to be used by the Authority to calculate the amount (if any) of an award.  In other words, it represents the outcome of the process, and is often an outcome decision.  An outcome decision is a relevant decision, and therefore appealable:  

11	The difference between a Rent Officer’s determination and a relevant decision is important.  Under paragraph 6(2)(c) of the Child Support, Pensions and Social Security Act 2000 an appeal against so much of an Authority’s decision as adopts a Rent Officer’s decision made under relevant Orders (of which The Rent Officers (Housing Benefit Functions) Order 1997 is one, is expressly prohibited. If an Authority’s decision were to be taken to adopt a Rent Officer’s decision in every respect, the claimant’s right of appeal would be severely restricted since a Rent Officer’s decision will, in the general run of claims, provide a foundation for the outcome decision.  It would mean that, even if the Authority gave the Rent Officer entirely the wrong information, the claimant would have no recourse to a tribunal.  The claimant would be forced to seek judicial review of the Rent Officer’s decision instead.  This would be disproportionately expensive and legally complex.

12	I do not consider that this result is inevitable.  It can be avoided by confining the scope of the Rent Officer’s decision to the specific determinations he is obliged to make and by excluding the factual basis provided to him by the Authority upon which he makes those determinations.  In other words, if x is the information given by the Authority and y is the figure resulting from the Rent Officer’s use of that information in his calculations, it is only y which cannot be appealed.  X is merely the Authority’s selection of the information it considers to reflect the claimant’s factual circumstances.  The Rent Officer simply relies on this information without any investigation of it.  

13	The information which the Authority provides is simply a building block on the way to the outcome decision.  The claimant can attack the factual basis upon which the decision is made by appealing the outcome decision.  This accords with the Tribunal of Commissioners’ decision in R(IB)2/04 [55(1)], which in turn adopts Judge Jacobs’ reasoning in CIB/2338/2000 [24 – 25].  It also enables the tribunal to achieve the same right of appeal held to exist in R v Swale BC Housing Benefit Review Board ex p Marchant [2000] 1FLR 246 in similar circumstances, albeit under a different decision making scheme.  An appeal right can therefore be accepted.
Who is an occupier?

14.	The issue was whether the Authority had correctly identified the occupiers of the dwelling in its terms of reference to the Rent Officer.  This had to be determined by reference to The Rent Officers (Housing Benefit Functions) Order 1997, which sets out the determination to be made and the size criteria to be applied.  The answer to the question had nothing to do with the claimant’s subjective beliefs about the extent of her accommodation needs.  The tribunal went wrong by departing from the mandatory requirements in the Order and accepting the claimant’s reasons for needing an extra room as justification for departing from the criteria.  The wording of, Schedule 1, Article 2 and of Schedule 2, Article 2 do not admit of the application of any discretion.

Schedule 1 - Size and rent
2.—(1) The rent officer shall determine whether the dwelling, at the relevant time, exceeds the size criteria for the occupiers.
(2) If the rent officer determines that the dwelling exceeds the size criteria, the rent officer shall also determine the rent which a landlord might reasonably have been expected to obtain, at the relevant time, for a tenancy which is–
(a) similar to the tenancy of the dwelling; 
(b) on the same terms other than the term relating to the amount of rent; and 
(c) of a dwelling which is in the same locality as the dwelling, but which– 
(i) accords with the size criteria for the occupiers; 
(ii) is in a reasonable state of repair; and 
(iii) corresponds in other respects, in the rent officer’s opinion, as closely as is reasonably practicable to the dwelling.

     	Schedule 2 – Size Criteria

1. One bedroom or room suitable for living in shall be allowed for each of the following categories of occupier (and each occupier shall come within only the first category for which he is eligible)–
(a) a married couple or an unmarried couple (within the meaning of Part VII of the Social Security Contributions and Benefits Act 1992(19)); 
(b) a person who is not a child; 
(c) two children of the same sex; 
(d) two children who are less than ten years old; 
(e) a child. 
2.  The number of rooms (excluding any allowed under paragraph 1) suitable for living in allowed are–
(a) if there are less than four occupiers, one; 
(b) if there are more than three and less than seven occupiers, two; and 
(c) in any other case, three.

15.	‘Occupier’ is not helpfully defined in The Rent Officers (Housing Benefit Functions) Order 1997.  Article 2(1) merely states that an occupier is: 

2(1) ‘a person (whether or not identified by name) who is stated, in the application for the determination, to occupy the dwelling as his home.  

This would make the claimant and her husband, who were the only two people named in the application, the occupiers.

16.	Regulations 7(1) and 7(2) of the Housing Benefit Regulations 2006 are of some indirect help:

7(1) …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 or his family; or
(b)	[not relevant]

	7(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….

17.	In this appeal, the claimant’s family is the couple comprising the claimant and her husband:  section 137(1) [‘family] of the Social Security Contributions and Benefits Act 1992.  If another person was normally living with the couple, he could also be treated as an occupier; but in the couple’s circumstances, the person would be a non-dependent.  A non-dependent’s deduction would then be made from their rent allowance:  regulation 3, regulation 74 Housing Benefit Regulations 2006.  There is an exception to this under regulation 3(2)(f) if a person is living with the claimant in order to care for her and is engaged by a charitable/voluntary organisation which makes a charge to the claimant or her partner for those services, but these are not the circumstances in which the claimant’s parents – or indeed, anyone else - stays with the couple.  The First-tier tribunal did not consider the parents’ status in the dwelling but found that they came during the day when the claimant’s husband was out, or would stay overnight if he was out late or away.  This could only have led to a finding that they were not occupiers, had the tribunal considered the matter. 
18	  I took oral evidence on this issue not least because, if the parents were occupiers, a non-dependent’s deduction would have been applicable, and an overpayment could have occurred.  The claimant and her husband have never asserted that her parents lived with them.  The claimant’s father told me that he and his wife owned and lived in their house and paid council tax for it as a couple.  It was clear to me that they normally resided there and were only visitors to their daughter’s home, albeit visitors with a caring role.
19	On this basis, I have come to the conclusion that the Authority was correct in its information to the Rent Officer that the only occupiers of the dwelling were the claimant and her husband.  Accordingly, the accommodation to which they were entitled was one bedroom and one other room suitable for living.  
20.	The Authority’s appeal is therefore allowed and their decision confirmed.

 [Signed]
S M Lane
Judge of the Upper Tribunal (AAC)
11 March 2010