IN THE
UPPER TRIBUNAL Case No.
CPC/2412/2013
ADMINISTRATIVE
APPEALS CHAMBER
Before Judge Mark
Decision: I set aside the decision of the
tribunal but substitute my own decision dismissing the appeal of the claimant
from the decision of a decision maker dated 17 February 2012 that, inter alia,
the claimant was not entitled to an additional amount of pension credit in
respect of housing costs until 22 December 2010.
REASONS FOR DECISION
- This appeal
is brought with the permission of the Tribunal Judge from a decision of
the First-tier Tribunal confirming a decision of the Secretary of State
made on 23 August 2011. Despite the fact that the submissions made to him
by both parties were on the basis that the decision being appealed was
that made on 23 August 2011, it is plain for the reasons given by Judge
Poynter in his Direction dated 13 December 2013 that (1) the decision
given on 23 August 2011 was a decision revising an earlier decision of 30
June 2011; (2) the revised decision of 30 June 2011 was successfully
appealed by the claimant to the tribunal, which had decided on 21 January
2012 that the claimant was entitled to state pension credit from 27 August
2008 and had directed the Secretary of State to re-assess the claimant’s
entitlement from that date.
- There
followed an award dated 17 February 2012 in which it was determined that
the claimant was not entitled to housing costs until 22 December 2010. It
was that appeal which was before the tribunal despite the fact that there
was no copy of the decision on the file. Judge Poynter was concerned that
if, as the tribunal found, the claimant did not normally occupy the
relevant property as his home, its capital value should have been taken
into account in assessing his entitlement to state pension credit. Now
that a copy of the decision has been provided, it can be seen that the
capital value was considered, but that it was decided that the amounts
secured by mortgage on the property exceeded its value so that it was in
negative equity and there was no capital value for state pension credit
purposes.
- The
tribunal was in error of law in failing, with assistance from the decision
maker, to identify the correct decision under appeal and its decision
purports to confirm the revising decision of 23 August 2011. I therefore
set it aside.
- It appears
to me that this is a case in which I can substitute my own decision for
that of the tribunal. The facts are not in dispute in any significant
way. The claimant and his wife had acquired the property, a flat in Bournemouth, in 2001 with the aid of a mortgage. They lived there, but by 2007 they were
having financial problems. They could not afford to pay council tax.
They had two daughters. One was a student and the other owned two
properties about (as it would appear from a Google Maps search) 2.4 and
3.6 miles from their own property. Between some point in 2007 (the
tribunal found that it was December 2007) and 22 December 2010 they were
living in one or other of the second daughter’s properties, and only returned
to live at their own property on 22 December 2010.
- The first
daughter, the student, continued to live at that property and she claimed
and obtained exemption from council tax on the basis that the property was
occupied by students only. It had been the objective of the claimant in
going to live elsewhere that exemption from council tax should be
obtained. As Judge Poynter explained in his Direction, that exemption
could only be obtained if the claimant and his wife were not resident at
the property. This meant that neither could have had their only or main
residence there.
- The
exemption from council tax continued to be sought and granted until the
claimant and his wife returned to the property on 22 December 2010. They
would pay visits to their property in the 3 years between December 2007
and December 2010, and their evidence was that they would return for
weekends for a change of scene and to enjoy the better living conditions
there. In addition there was a 3 months period in June, July and August
2009, when their daughter was ill and, for about 50% of that time, one or
other of them would stay overnight at the flat to care for her.
- The
claimant’s solicitors have referred me to the recent decision in R (on
the application of Walford) v Worcestershire County Council [2014] EWHC 234 (Admin) as to the meaning of “home” in the National Assistance
(Assessment of Resources) Regulations 1992. The context there was that a
lady had needed to be placed in a care home by a council and in assessing
her ability to pay the cost property owned by residents was to be
disregarded where it was occupied in whole or in part as their home by a
relative of the resident aged 60 or over. In paragraph 51 of his
decision, Supperstone J states
“In my judgment “home” should be construed as
“only or main home”. This interpretation, in my view, accords with the
statutory purpose of the legislation. Home is a place to which a person has a
degree of attachment both physical and emotional. The test as to whether a
person occupies premises as their home is both qualitative and quantitative”.
- This is not
a case of a person occupying two properties as a single home nor is it a
case of a student being away during term time nor was it a case where a
claimant stayed overnight each night at an elderly parent’s house to care
for them, as was the case in decisions cited to me in relation to
entitlement to housing benefit and income support. Nor does the 3 months
period when the daughter living in the property was ill assist. Further,
the overnight stays at the property occurred because the daughter was sick
and needed help at her home, not because it was the claimant’s home.
Similar observations apply to visits to the property to see their
daughter. Even the weekend breaks suggest no more than that the property
was regarded as a recourse which could be used to a limited extent so long
as it did not affect liability to council tax.
- It is
plain, and I so find, that the property was not their sole or main
residence between about December 2007 and 22 December 2010.
- The
question in respect of entitlement to pension credit in respect of
interest payments on the mortgage is whether the secured loan was taken
out to acquire an interest in the dwelling occupied as the home, or for
certain repairs and improvements to that dwelling, or to pay off another
loan taken out for one or more of those purposes (see para.11, Schedule II
to the State Pension Credit Regulations 2002 (“the Regulations”). I
summarise the effect of those paragraphs rather crudely because the real
question in this case is whether between June 2008 and December 2010 the
property was the dwelling occupied by the claimant as his home.
- “The
dwelling occupied as the home” is defined by regulation 1(2) of the
Regulations as meaning the dwelling normally occupied by the claimant as
his home. In CH/1786/2005, it was held, in the context of a housing
benefit claim, that there was a single question to be determined “of what
dwelling an individual is currently normally occupying as his or her
home”. Further “normally occupied” is a less demanding test than
“permanently occupied” (CH/1085/2002; and see MM V SSWP, [2012] UKUT 358 (AAC), where it is pointed out that “normally reside” is not
necessarily the quite the same as “normally occupy … as his home”). The
question for decision therefore is whether the claimant normally occupied
the property as his home during the relevant period.
- That,
however, is not the end of the matter, because paragraph 1(1) of Schedule
II to the Regulations provides that subject to the following provisions
of Schedule II, the housing costs applicable to a claimant are those
which he is liable to meet in respect of the dwelling occupied as the home
which he or his partner is treated as occupying and which qualify under
paragraphs 11 to 13 of the Schedule.
- Paragraph 4
of Schedule II sets out circumstances in which a person is to be treated
as occupying a dwelling as his home. Paragraph 4(1) sets out the general
rule, subject to exceptions later in that paragraph, that “a person shall
be treated as occupying as his home the dwelling normally occupied as his
home by himself or, if he has a partner, by himself and his partner, and
he shall not be treated as occupying any other dwelling as his home.”
- Paragraph 4
goes on to make provision for exceptions from this general rule to cover
cases where a person has had to leave their home temporarily for a limited
period, such as the need to repair the home or to go into hospital or he
intends to return to occupy the dwelling as his home and the period of
absence is unlikely to exceed 13 weeks. The provisions of paragraph 4 of
Schedule II are plainly designed to limit the circumstances in which a
person can claim that he is occupying a dwelling as his home for the
purposes of paragraphs 11 and 12 of that Schedule.
- It appears
to me that paragraph 4 of Schedule II to the Regulations makes it clear
that in general, for the purpose of entitlement to housing costs, a person
is only occupying the dwelling normally occupied by him as his home if he
is living there. It also appears to me that the claimant was not living
in the property between December 2007 and 22 December 2010. Although he
no doubt wanted to live there, financial constraints forced him to live
elsewhere. He was not therefore to be treated for the purpose of housing
costs as occupying the dwelling as his home during that period, and is
therefore precluded by paragraphs 1(1)(a) and 4(1) from obtaining any sum
in respect of housing costs before 22 December 2010.
- Even if I
were free from the constraints imposed by paragraphs 1 and 4 of Schedule it
appears to me that a person who chooses for financial reasons not to live
in his usual home for a period of 3 years cannot say that during that
period he normally occupies the property as his home. Even as at 1
September 2008, the date from which pension credits have been awarded, he
had lived away from the property for over 8 months and in my judgment
cannot be treated as normally occupying it as his home at a time when he
had elected not to live there indefinitely.
- The appeal
therefore fails except insofar as it is necessary to identify the correct
decision under appeal and to deal with the additional point raised by
Judge Poynter. The outcome for the claimant is the same. This is because
in my judgment the claimant was not normally occupying the property as his
home within the meaning of regulation 1(2) of the Regulations and because
even if he were otherwise to be regarded as so occupying it, paragraph 4 of
Schedule II to the Regulations would treat him as not so occupying it for
the purpose of ascertaining entitlement to pension credit in respect of
housing costs.
(signed
on the original) Michael Mark
Judge of
the Upper Tribunal
1 April
2014
