ZA v London Borough of Barnet
[2024] UKUT 222 (AAC)
London Borough of Hammersmith & Fulham v FJ
14 August 2023
[2023] UKUT 203 (AAC)
Upper Tribunal
A woman claimed housing benefit, but the council disagreed. A first court said she was right, but a higher court found mistakes in the first court's decision. The higher court sent the case back to a different lower court to decide again.
Key Facts
- •FJ (Respondent), 85, lives with her son MG in a privately owned property.
- •Initially, the property was tenanted by MG alone; FJ was a non-dependent.
- •MG's Housing Benefit (HB) reduced when he started working.
- •FJ claimed HB in her name, providing backdated and new tenancy agreements naming both herself and MG as tenants.
- •The Council terminated FJ's HB citing regulation 9(1)(g) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006.
- •FJ appealed to the First-tier Tribunal (FtT), arguing she'd always been a tenant and contributed to rent.
- •The FtT allowed FJ's appeal, finding regulation 9(3) applied.
- •The Council appealed to the Upper Tribunal (UT) arguing inconsistencies in the FtT's reasoning and challenging its application of legal precedents.
Legal Principles
Regulation 9(1)(g) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006; a person liable for dwelling payments is treated as not liable if, before liability, they were a non-dependent of someone residing in the dwelling.
Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006
Regulation 9(3) provides an exception to 9(1)(g) if the liability wasn't intended to take advantage of the housing benefit scheme.
Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006
A lease requires a contract granting exclusive possession for a fixed period, usually in return for payment. This can be express or implied.
Bruton v London & Quadrant Housing Trust [2002] 1 A.C. 406; Aldridge Leasehold Law
Tribunals must make adequate findings of fact and give reasons for their decisions.
Benmax v Austin Motor Co Ltd [1955] AC 370; Re B (Appeal: Lack of Reasons) [2003] FLR 1035
'Taking advantage' in the context of regulation 9 means something akin to 'abuse' or 'taking improper advantage'. Simply 'making the most of opportunities presented' is insufficient.
CH/39/2007; MP v Sutton London Borough Council (HB) [2021] UKUT 193 (AAC)
Tribunals must consider only circumstances at the time of the original decision.
Section 12(8)(b) of the Social Security Act 1998
Outcomes
The UT allowed the Council's appeal.
The FtT's decision contained errors of law due to inconsistent findings, inadequate exploration of whether FJ was always a tenant, and flawed application of legal precedent regarding 'taking advantage' of the HB scheme.
The FtT's decision was set aside.
Material errors of law in the FtT's reasoning necessitated a rehearing.
The case was remitted to a different FtT for a rehearing.
The UT couldn't remake the decision due to insufficient findings of fact on key issues.