(RH_4_04) [2004] UKSSCSC CH_880_2003 (11 February 2004)

R(H) 4/04
(Secretary of State for Work and Pensions v. Robinson and City of Sunderland [2004] EWCA Civ 342)
CA (Ward and Dyson LJJ and Sir Christopher Staughton)	CH/880/2003
11.2.04
Housing benefit – new tenancy – conditions of entitlement first satisfied in second week of tenancy – whether benefit to be paid from second or third week of tenancy
The claimant was a single person with no children and in receipt of income-based jobseeker’s allowance. She took up a new tenancy on 11 March 2002 and claimed housing benefit on and became liable for rent from that date. She did not move into her new home until 20 March 2002 because she was awaiting a loan from the social fund for essential furniture. The local authority awarded benefit from 25 March 2002, being the Monday after she had moved, but refused to backdate the award to the commencement of the tenancy. The tribunal allowed her appeal, holding that she could be treated as occupying her new home from 11 March under regulation 5(6)(c )(ii) of the Housing Benefit (General) Regulations 1987. The local authority appealed to the Commissioner, who allowed the appeal on the ground that regulation 5(6)(c )(ii) could not apply because the claimant’s applicable amount did not include a premium listed in that provision. The Commissioner substituted his own decision that the claimant was entitled to benefit from 18 March, holding that regulation 65(2) of those regulations applied notwithstanding that the claim for benefit had been made in the week preceding that in which the conditions of entitlement were first met. The Secretary of State appealed to the Court of Appeal.
Held, allowing the appeal, that:
1.	the claim was to be treated as having been made on 20 March, that being the date on which the claimant first satisfied the conditions of entitlement to benefit (paragraph 18);
2.	the claimant did not fall within the exception provided by regulation 65(2) of the regulations to the general rule provided by regulation 65(1), because that exception only applies to new tenancies where the conditions of entitlement are met in the same benefit week in which liability to pay rent first arises and in the claimant’s case, that liability had first arisen in the benefit week preceding that in which those conditions were satisfied (paragraphs 20-21);
3.	applying the general rule in regulation 65(1), that a person who makes a claim and is otherwise entitled to benefit, is entitled to benefit from the benefit week following the date on which is claim is made or treated as made,  benefit was payable from the 25 March (paragraph 19).

DECISION OF THE COURT OF APPEAL
Miss J. Anderson (instructed by The Office of the Solicitor, Department for Work and Pensions) appeared on behalf of the Appellant.
The respondents did not appear and were not represented.  

Judgment

LORD JUSTICE WARD:

1.	In March 2002 Michelle Robinson was an 18 year old young lady with no children.  She was at the time in receipt of income-based jobseeker's allowance, and she was changing her home.  On 11 March, a Monday, she became the tenant of a
property at 128 Trafalgar Road, Washington. On that day, she became liable to pay the rent for that property.
2.	She was, unfortunately, suffering some financial hardship and had applied for a social fund (or a crisis loan) to enable her to purchase the necessary furniture – not least the bed on which she had to sleep – which would enable her to move into occupation of her new flat.  Sadly, the cheque for that loan was sent to the wrong address, and poor Miss Robinson had to wait for some number of days before she was able to furnish her new flat.  It was thus only on 20 March, a Wednesday, that she moved into occupation of her new home.
3.	Being short of money, she appropriately applied for housing benefit. That application was made on the same day as she got her tenancy, 11 March.  Eventually, after appeals here and appeals there, she was paid her housing benefit from the week commencing 18 March.  She is happy with that situation now.  The local authority, the City of Sunderland, have accepted that position, but the Secretary of State for Work and Pensions is anxious about the way in which the various decisions have been taken and appeals to this court.
4.	Perhaps it would be sensible to set out the statutory background before embarking on an analysis of the decisions which bring us to this court.  Section 130(1) of the Social Security Contributions and Benefits Act 1992 provides as follows: 
“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; 
(b)	there is an appropriate maximum housing benefit in his case; and 
(c)	either–
(i)	he has no income or his income does not exceed the applicable amount; or
(ii)	his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection 3(b) below provides is made.”
5.	The Regulations are made under the Housing Benefit (General) Regulations 1987.  Regulation 2 defines a housing benefit week as a period of seven consecutive days beginning on a Monday.  Regulation 5(1) sets out the circumstances in which a person is or is not to be treated as occupying a dwelling house as his home.  Regulation 5(1) provides: 
“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 …	
…	

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.	Regulation 5(6) is also marginally relevant; that provides: 
“Where a person–
 (a	has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in; and
 (b)	had claimed housing benefit before moving in and either no decision has yet been made on that claim or it has been refused but a further claim has been made or treated as made within 4 weeks of the date on which the claimant moved into the new dwelling occupied as the home; and
 (c)	the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and–
(i) that delay was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family; or 
(ii) the move was delayed pending the outcome of an application under Part III of the Act for a social fund payment to meet a need arising out of the move or in connection with setting up the home in the dwelling and either a member of the claimant's family is aged 5 or under or the claimant's applicable amount includes a premium under paragraph 9, 10, 11, 13 or 14 of Schedule 2; or
(iii) the claimant became liable to make payments in respect of the dwelling while he was a patient or in residential accommodation ...”	
…	

7.	More relevant for present purposes, indeed crucial to them, is regulation 65, which deals with the date on which entitlement is to commence.  That provides: 
“(1) Subject to regulation 72(12) to (14 (renewal claims) and paragraphs (2) and 3, a person who makes a claim and is otherwise entitled to housing benefit shall be entitled to that benefit from the benefit week following the date on which his claim is or is treated as made.  
 (2) Where a claimant is otherwise entitled to housing benefit and becomes liable, for the first time, to make payments in respect of the dwelling which he occupies as his home in the benefit week in which his claim is or is treated as made, he shall be so entitled from that benefit week.”   
8.	I should mention, perhaps only in passing, regulation 72(11), which reads: 
“Where the claimant is not entitled to housing benefit in the benefit week immediately following the date of his claim but the relevant authority is of the opinion that unless there is a change of circumstances he will be entitled to housing benefit for a period beginning not later than the thirteenth benefit week following the date on which the claim is made, the relevant authority may treat the claim as made on a date in the benefit week immediately preceding the first benefit week of that period of entitlement and award benefit accordingly.”  
I need not read paragraphs (12) to (14) of regulation 72 (which are exceptions to regulation 65(1)) because they do not apply.
9.	Now to the processing of Miss Robinson’s claim.  The housing benefit officer (or whoever the decision-maker was) was of the view that Miss Robinson was entitled to benefit from 25 March, that is to say the Monday in the week following her taking occupation of her flat.  Miss Robinson was upset by that decision and asked for it to be reconsidered.  Upon reconsideration, the decision was confirmed.  She appealed to the appeal tribunal, which conducted a paper appeal on 19 December and decided that her appeal was to succeed.  The basis of that decision was:
“The Tribunal is satisfied that Regulation 5(6)(c) of the Housing Benefit (General) Regulations 1987 applies in this case.  The Appellant had planned to move into her new property on 11 March 2002, but was prevented from doing so by lack of funds caused by the crisis loan being sent to the wrong address.  She therefore remained responsible for rent in respect of her existing accommodation together with the rent in respect of the new property as the tenancy commenced on 11 March 2002.  The regulation above provides that he or she shall be treated as occupying the dwelling as his or her home for any period not exceeding 4 weeks immediately prior to the date on which he or she moved into the dwelling and in respect of which he or she was liable to make payments.  This applies in this case and the appeal succeeds.”  
10.	The local authority were dissatisfied with that result and it appealed to the Social Security Commissioners.  The appeal was decided by Mr Commissioner Levenson on 15 April 2003.  He said:
“6.  The tribunal, no doubt impressed by the apparent unfairness of the situation, allowed itself to overlook the provisions of regulation 5(6)(c)(ii).  However, that has formed the basis of the local authority's appeal to the Commissioner.  In this case, the claimant had no children and her applicable amount for her means tested benefit did not include one of the schedule premiums (which relate to pensioners and to those with disabilities). For that reason I set aside the decision of the tribunal as having been made in error of law.”  
It is no longer disputed by anyone that the appeal tribunal were indeed wrong.  They simply overlooked the fact that this young lady had no children and she did not fall within regulation 5(6)(c) at all.  
11.	The Commissioner went on then to give his decision.  He said: 
“7. Although the claimant moved in on Wednesday 20th March 2002, the local authority decided that entitlement to benefit did not commence until Monday 25th March 2002.  This is because for the purposes of housing benefit, a benefit week begins on Monday (regulation 2(1)) and entitlement to benefit on a new claim begins on the first day of the benefit week following the week in which the claim was made (regulation 65(1)).  However, regulation 65(2) provides that …” 
He concluded: 
“8.  In the present case, the claimant was “otherwise” entitled to housing benefit as from 20 March 2002.  Liability to pay rent began on Monday 11 March 2002, which was the same day on which the claim was made.  She was not “otherwise” entitled during the benefit week beginning 11 March 2002 but she was so entitled during the benefit week beginning 18 March 2002.  It cannot be the case that if she had made her claim on 18 March 2002 she would have been entitled to benefit from that date, but because she made her claim on 11 March 2002 she is not entitled until 25 March 2002.”  
12.	The Secretary of State, being unhappy with that reasoning, applied for permission to appeal, which was eventually granted by Potter LJ.  The point is apparently one of considerable importance in the day-to-day administration of housing benefit.  So this court is entertaining the appeal even though it may be academic in this sense, namely that the local authority have exercised a power which apparently derives from regulation 72(11) to pay Miss Robinson from 18 March, which satisfies her and leaves them, if not happy, at least unable to do very much about it.  But the Secretary of State remains distinctly unhappy with the reasoning of the Commissioner.  
13.	Miss Anderson, for whose concise arguments we are indebted, submits that he was wrong.  She submits that regulation 65(2) is an exception to regulation 65(1).  The ordinary rule is that a person's entitlement to a payment of housing benefit on a new claim begins on the Monday of the benefit week following the week in which the claim was made.  Regulation 65(2) is, she submits, restricted in its application to cases where the claimant first becomes liable for payments in respect of a dwelling that is occupied as his home in the same week as the claimant is eligible for benefit.  Regulation 65(2), therefore, represents an important part of the statutory scheme and an important exception to the general rule.  Regulation 65(2) applies to new obligations rather than pre-existing obligations which could, in theory, run back many years, hence the concern of the Secretary of State that if the Commissioner's reasoning is applied it could add substantially to the financial burden on the State. 
14.	Taking the facts of this case, and looking at the first week, commencing Monday 11 March, Miss Robinson's position was that she was liable to make payments in respect of the dwelling because she had that day taken a weekly tenancy and had become liable to pay the first week's rent which was then due.  She was not, however, occupying the dwelling as her home, as that has to be understood applying regulation 5, because she was still occupying her former abode as her home.  Consequently, in week 1 she would not be able to satisfy the eligibility conditions provided by section 131(a).  She was liable to make payments in respect of the dwelling house, but she did not occupy the dwelling as her home.  
15.	In week 2, commencing Monday 18 March, she did satisfy the eligibility requirement of section 131(a) because during that week she moved into her new flat on Wednesday, and henceforth occupied it as her home.  So she is entitled to housing benefit from that time.  The crucial question is from what date the benefit is to be paid.  That, of course, brings regulation 65 into play.  I must examine that.
16.	I accept the first submission of Miss Anderson that regulation 65(1) sets out a general rule to which regulation 65(2) is the exception.  That conclusion must follow from the fact that regulation 65(1) is made subject to paragraph (2).  What then is the general rule?  The language is not entirely clear: a person who makes a claim and is otherwise entitled to housing benefit, shall be entitled to that benefit from the benefit week following the date on which his claim is made or is treated as made.  In the words, “the date on which his claim is or is treated as made”, there are obvious alternative dates, and the question is: which one?  On one view of it, the date on which this claim is made is 11 March and, on that view, the benefit would be payable from 18 March.  On the other hand if the claim is treated as made on the date on which she became eligible for housing benefit, that is to say the day she moved in, Wednesday 20 March, then the benefit would be paid from the following Monday 25 March. 
17.	There is no other guidance as to which of those two alternatives one has to choose.  There is no help as to what the words “treated as made” might mean.  But I am persuaded by Miss Anderson that the words “treated as made” are the applicable words on the week in which the claim is made, Monday 11 March.  She was not eligible and her claim would on that basis ordinarily be dismissed.  But it would cause administrative havoc if every applicant for housing benefit were to be required to fill in a separate claim for the next week and the next week and so on.  There is obvious good sense in treating a claim as extant and still available to abide the time when all the conditions for payment are satisfied.  
18.	I conclude, therefore, that one cannot read the date on which the claim is made as the prevailing date, but must take the date of 20 March as the date on which the claim is to be treated as being made, because that was the first time on which all of the eligibility conditions are satisfied.  That is the only way to give purpose and efficacy to regulation 65(1).
19.	It follows, therefore, that I accept the submission that, upon a proper construction of regulation 65(1), the benefit becomes payable from the benefit week following the date on which she moved into occupation; that means her claim is to be paid from Monday 25 March.
20.	The Commissioner applied regulation 65(2), but the simple point made by the Secretary of State, as showing his error, is that the first time that Miss Robinson became liable to pay her rent was not in that week of 18 to 25 March but in the preceding week from the time she took her tenancy.  Consequently, on the facts, regulation 65(2) simply does not operate.  I remind myself of what it says: 
“Where a claimant is otherwise entitled to housing benefits and becomes liable, for the first time, to make payments in respect of the dwelling which he occupies as his home in the benefit week in which his claim is or is treated as made, he shall be so entitled from that benefit week.” (My emphasis)
The error of fact is to fail to note that the first time she was liable to pay rent was on 11 March.
21.	It follows, in my judgment, that the Secretary of State is correct in his construction of regulation 65(2).  It does apply and only apply to the case where there is coincidence of entitlement to benefit and liability to pay rent; in other words it applies to a new tenancy.  If, for example, Miss Robinson, taking her new tenancy on 11 March had been able to move in on 11 March, or even to move in the course of the next seven days, she would have been able then to obtain what she really wanted, that is to say housing benefit from the commencement of her new tenancy.  Regulation 65(2) gives new tenants coming into a new property and occupying a new property their entitlement to housing benefit from the very beginning of their occupation.  Miss Robinson did not satisfy regulation 65(2) and, therefore, the Secretary of State's appeal must succeed.  
22.	The appeal will, therefore, be allowed.  Formally, the benefit becomes payable from 25 March, but Miss Robinson has already received all she is going to get and there will be the satisfaction to the Secretary of State of having his appeal allowed but no order for costs will be made on this appeal. 

LORD JUSTICE DYSON:

23.	This appeal raises a very short point of construction of regulation 65(2) of the Housing Benefit (General) Regulations 1987.  Regulation 65(1) provides the general rule for the determination of the benefit week from which housing benefit is payable.  If a claimant is otherwise entitled to housing benefit, he is entitled to that benefit from the benefit week following the date on which his claim is, or is treated as, made.  
24.	This general rule is subject to exceptions, one of which is contained in regulation 65(2).  It is the meaning and scope of that exception which lies at the heart of this appeal.  Regulation 65(2) provides: 
“Where a claimant is otherwise entitled to housing benefit and becomes liable, for the first time, to make payments in respect of the dwelling which he occupies as his home in the benefit week in which his claim is or is treated as made, he shall be so entitled from that benefit week.” 
25.	It follows that regulation 65(2) does not apply if a claimant becomes liable for the first time to make payments in respect of a dwelling house in a benefit week before he is otherwise entitled to housing benefit.  In order to come within the regulation 65(2) exception, the liability to make payments on the property for the first time must coincide with the benefit week in which the claimant is otherwise entitled to housing benefit.  
26.	On the facts of this case, it is clear that there was no such coincidence.  Miss Robinson was not entitled to housing benefit during a benefit week in which she became liable for the first time to make payments in respect of the dwelling.  
27.	In my judgment, the Commissioner misunderstood regulation 65(2).  If he had applied it correctly, on the facts of this case, he would have held that benefit was payable from 25 March 2002.  
28.	For these reasons, which are, in effect, the same as those given by my Lord, Ward LJ, I too would allow the appeal.

SIR CHRISTOPHER STAUGHTON
29.	If Miss Robinson had moved in on 11 March and had been liable to pay rent for the week then beginning, and had not been liable to pay rent in any previous week for that property, she would have received benefit from 11 March.  That she has not achieved.  
30.	The Commissioner awarded benefit from Monday 18 March, although she had not moved in until Wednesday 20 March.  She does not appeal from that decision, nor does the Council of the City of Sunderland.  But the Secretary of State is made of sterner stuff.  Miss Anderson, on his or her behalf, claims that benefit should only have been paid from Monday 25 March.  
31.	Ward LJ and Dyson LJ have explained that the Secretary of State is right.  They have done so with crystal clarity.  If I try to improve on their reasoning, it would be a case of: 
“Nature and Nature’s laws lay hid in night: God said, Let Newton be!  And all was light.  It did not last: the devil howling ‘Ho! Let Einstein be!’ restored the status quo.” (Alexander Pope and Sir John Collings Squire)
I agree that the appeal should be allowed. 
(ORDER: Appeal allowed.  No order as to costs.)