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[2007] UKSSCSC CSH_499_2006 (09 March 2007)

THE SOCIAL SECURITY COMMISSIONERS

Commissioner's Case No: CSH/499/2006

SOCIAL SECURITY ACT 1998

APPEAL FROM THE APPEAL TRIBUNAL UPON A QUESTION OF LAW

COMMISSIONER: D J MAY QC

Oral Hearing

Appellant: Garry Millar Respondent: Secretary of State

Tribunal: Dundee Tribunal Case No: U/05/089/2006/00160

DECISION OF SOCIAL SECURITY COMMISSIONER

1. My decision is that the decision of the tribunal given at Dundee on 3 May 2006 is not erroneous on a point of law. The appeal fails. I dismiss it.
2. This appeal came before me for an oral hearing on 6 March 2007. The claimant was represented by Mr Kinghorn, Solicitor, of the Dundee North Law Centre. The first respondent, Dundee City Council, was represented Mr Barrie, the Team Leader of Legal Services Department. The Secretary of State, who is the second respondent, was represented by Mr Brown, Solicitor, of the Office of the Solicitor to the Advocate General.
3. The claimant has appealed to the Commissioner against the decision of the tribunal which dismissed an appeal by the claimant who had unsuccessfully sought backdating of housing benefit for the period from 24 April 2005 until 31 July 2005.
4. The circumstances in this case are that the claimant had an award of housing benefit. He was detained in Perth prison on remand from 7 March 2005 until 15 May 2005. On 16 May 2005 he was sentenced to a period of 9 months imprisonment backdated to 14 March 2005. He was released from prison on 29 July 2005. His award of housing benefit was terminated on 24 April 2005, though it was accepted that he was not liable to make any repayment for an overpayment of housing benefit for the period from 25 April 2005 to 15 May 2005. The claimant made a new claim for housing benefit on 3 August 2005. His claim did not seek to have the date of the claim backdated. However, on 16 August 2005 his representatives sought to have his application backdated to 24 April 2005. That request for backdating was successful for the period 1 August 2005 until 2 August 2005 based on nil income but was otherwise not successful. It should be noted that the claimant did not seek to appeal against the decision to terminate his original award on 24 April 2005. I understood from those appearing before me that it was accepted that there was no question of backdating before 16 May 2005. A surprising feature of the appeal was that the first respondent appears to have accepted that the claimant had established a good cause for his failure to make a claim timeously in respect of the periods sought by the backdating under and in terms of regulation 72(15) of the Housing Benefit (General) Regulations 1987. None of the parties before me was able to demonstrate that there was any bar to a claimant who is in prison from making a claim for housing benefit. Indeed, the Secretary of State produced a report by the Social Exclusion Unit of the Office of the Deputy Prime Minister headed "Reducing Re-Offending by Ex Prisoners", which deals in paragraph 13.7 with the making of claims for housing benefit by prisoners. The first respondent proceeded upon the basis that the claimant had established good cause throughout the period from 16 May 2005 and determined and adjudicated the claim upon the basis that he was not entitled to the benefit by virtue of the operation of regulation 5(8) of the Housing Benefit (General) Regulations 1987. The acceptance by the first respondent of good cause was not an issue before the tribunal and the parties before me did not make it an issue.
5. Entitlement to housing benefit is provided for by s.130 of the Social Security Contributions and Benefits Act 1992 and is that a person is entitled to housing benefit if he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home. Regulation 5 of the Housing Benefit (General) Regulations 1987 makes provision for circumstances in which a claimant is or is not to be treated as occupying a dwelling as his home. For the purposes of the original awarding decision which was terminated on 24 April 2005, the claimant had the advantage, by virtue of regulation 5(8C) of being treated as occupying the dwelling house he normally occupied as his home during the period of absence from the date upon which he was remanded in custody until the termination of his housing benefit, which appears to have been for other reasons. This was because paragraph 5(8B) of the regulations applied to him.
6. In relation to the period for which the claimant sought backdating, he was a convicted prisoner from 16 May 2005 until his release on 29 July 2005. Accordingly, regulation 5(8B) did not apply to him during this period.
7. For the purposes of being treated as occupying his dwelling as his home while he was temporarily absent therefrom by virtue of his imprisonment, the claimant would have to rely upon falling within the provisions of regulation 5(8). That provides:

"5(8) Subject to paragraph (8C), a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 13 weeks beginning from the first day of that absence from the home only if-

(a) he intends to return to occupy the dwelling as his home; and

(b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and

(c) the period of absence is unlikely to exceed 13 weeks."

8. For the purposes of the claimant's claim for backdating, the crucial phrase is:

"a period not exceeding 13 weeks beginning from the first date of that absence from the home".

As a matter of fact, the claimant had been absent from his home from 7 March 2005, which was the date of his remand. If the crucial phrase is applied literally, then, as a matter of law, by virtue of the period of absence from 7 March to 29 July 2005, the claimant could not be treated as occupying his dwelling as a home whereas, if the relevant period of absence was 16 May 2005 until 29 July 2005, he would be.

9. Mr Kinghorn accepted that, before the claimant could fall within the treating provisions, it was necessary for him to argue that the phrase in the regulation should not be applied literally. He also submitted that regulation 5(8) is subject to paragraph 8(C). That provision provides:

"(8C) A person to whom paragraph (8B) applies shall be treated as occupying the dwelling he normally occupies as his home during any period of absence not exceeding 52 weeks beginning from the first day of that absence."

As I understood his argument, the fact that for the purposes of the previous awarding decision, the claimant had treated the dwelling he normally occupies as his home by virtue of satisfying the conditions in regulation 5(8B) whilst on remand, meant that for the purposes of the current claim, he required to be so treated for the period 7 March to 15 May 2005.

10. I do not accept his argument. In respect of the previous award which was terminated on 24 April 2005, the claimant was able to obtain the advantage of falling within the provisions of regulation 5(8B) by virtue of being on remand. However, for the purposes of the new claim which has been made, the calculation of temporary absence is dependent upon the application of regulation 5(8). For the purposes of that paragraph of the regulations, "the first day of that absence from the home" is, as a matter of fact, 7 March 2005. That was the manner in which the tribunal applied the regulation and, in my view, they were correct to do so. In paragraph 15 of CH/4546/2002, the Commissioner found support in the authority referred to therein that the effect of a deeming provision does not necessarily apply indiscriminately in all other related provisions. I consider that this is a correct statement of the law. The fact that the claimant was treated as occupying the dwelling he normally occupies as his home for the purposes of the application of regulation 5(8B), in respect of the award which terminated on 24 April, does not prevent the independent and literal application of regulation 5(8) for the purpose of determining "the first date of absence from the home" for the new claim.
11. The appeal fails.

(signed)

D J MAY QC

Commissioner

Date: 9 March 2007