CPC/1446/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

The decision of the Social Security Commissioner

1.	My decision is that the decision of the Nottingham appeal tribunal, held on 20 November 2007 under reference 045/07/02467, is not erroneous in point of law.  I must therefore dismiss the claimant’s appeal.

The appeal to the Commissioner

2.	This is an appeal to the Commissioner against the decision of the appeal tribunal brought by the claimant with the leave of the tribunal’s chairman. The Secretary of State does not support the appeal.

The central issue in this appeal

3.	The central issue for the tribunal was whether the claimant was entitled to have an allowance in respect of severe disability included for the purposes of calculating her entitlement to state pension credit.  In essence, the tribunal was asked to decide whether the claimant was “normally residing with” any non-dependant person aged 18 or more (or whether they were normally residing with her). Those words are to be found in paragraph 1(1)(a)(ii) of Schedule 1 to the State Pension Credit Regulations 2002 (S.I. 2002 No. 1792).  

4.	Those statutory words have been borrowed from regulation 3 of, and paragraph 13(2)(b)(iii) of Schedule 2 to, the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967).  The same language is also used in the housing benefit legislation.  The relevant case law from those jurisdictions is equally applicable in the context of state pension credit.

5.	In this case the Secretary of State decided that the claimant was residing with her son and daughter-in-law and the appeal tribunal confirmed that decision.

The facts in this case

6.	The underlying facts do not appear to be in dispute.  The claimant is a lady now aged 84 with a number of disabilities.  As she explained clearly in her letter of appeal, “After several bad falls I now live with my son and daughter-in-law.  Although I am living at my son’s home, I still take care of myself and cook for myself.  My son has had an annex built on the back of the house to give me private ground floor accommodation of lounge, bedroom and bathroom.  My son and his wife are out at work all day & often late into the evening.”  There is no separate mailing address for the annex.

7.	It appears that, once the need for an en suite was factored in, the space available meant that it was not feasible to have a kitchen in the annex or “granny flat”.  In fact it seems that the claimant’s disabilities mean that in any event she cannot safely cook.  Instead, she has a microwave in the kitchen of her son’s house, which she uses to heat food up.  There is a separate entrance to the granny flat, but this involves walking round the outside of the house.  Given her mobility problems, she therefore uses the main house entrance to access the annex.
8.	In all material respects, therefore, the arrangements in the present case are effectively the same as, or at least very similar to and indistinguishable from, those described in Commissioner’s decision CIS/2532/2003.  In that case Mr Commissioner Jacobs described the set-up as follows: “An extension was then built onto the side of the property. It consists of a bed-sitting room with en suite facilities, but no cooking or cold storage facilities. Entrance is either by way of the original front door and through a door off the hallway, or by way of a backdoor that leads onto the patio and then to a lane. In practice, the front door is always used.” 

The relevant law on “normally residing with”

9.	The question at issue is whether or not the claimant “normally resides with” any non-dependant.  This expression is not as such fully defined by the legislation.  However, paragraph 3(1) and (2) of Schedule 1 to the State Pension Credit Regulations 2002 state as follows:

“(1) For the purposes of paragraphs 1 and 2, a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area, but not if each person is separately liable to make payments in respect of his occupation of the dwelling to the landlord.
(2) In sub-paragraph (1), ‘communal area’ means any area (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.”

10.	The leading decision on the concept of “residing with” is Chief Adjudication Officer v Bate, reported as R(IS) 12/96, in which Lord Slynn stated:
	
	“I do not see any indication in the regulation that ‘resides with’ is to be given any meaning other than its ordinary meaning. It seems to me to mean no more than that the claimant and the other person live in the same residence or dwelling.”

11.	As Mr Commissioner Jacobs rightly observed in CIS/2532/2003 (at paragraph 13), “that places the emphasis on the property rather than on the relationship between the parties” (referring to South Northamptonshire District Council v Power [1987] 3 All E.R. 831 at 833).

12.	The further explanation contained in paragraph 3(1) and (2) of Schedule 1 to the State Pension Credit Regulations 2002 mirrors equivalent provisions for both income support (regulation 3(4) and (5) of the Income Support (General) Regulations 1987) and housing benefit (see now regulation 3(4) of the Housing Benefit Regulations 2006). 		

13.	As Mr Commissioner Jacobs explained in CIS/2532/2003 (at paragraph 14), “This provision ensures that persons who are in accommodation of multiple occupancy, like a block of bedsits, are not treated as non-dependants residing with other residents. It makes sharing accommodation essential as part of residing together but it is not alone sufficient.” 

	14.	In other words, paragraph 3(1) and its parallel provisions do not lay down a complete test of residence.  Rather, the test stated there is a necessary but not sufficient condition for finding that two or more persons are normally residing with each other (see also the decision of the Court of Appeal in R (Kadim) v Brent London Borough Council Housing Benefit Review Board [2001] Q.B. 955, not following Thamesdown Borough Council v Goonery (unreported, 13 February 1995)).

Other case law on shared use of a kitchen

15.	A kitchen plainly counts as “any accommodation except a bathroom, a lavatory or a communal area”.  This understanding echoes the old Rent Acts jurisprudence on the scope of shared living accommodation, for the purposes of which a kitchen was regarded as a living room, in the broad sense of a room in which one dwelled, rather than in the narrower sense of a room serving the purpose of a lounge (see cases such as Neale v Del Soto [1945] 1 KB 144, reviewed by Lord Millett in Uratemp Ventures Ltd v. Collins [2001] UKHL 43 at paragraphs 45-58).

16.	The nature in practice and the effect in legal terms of shared kitchen use have been discussed in at least three previous decisions of the Social Security Commissioners (CSIS/185/1995, CIS/2532/2003 – referred to above – and CSIS/652/2003).

17.	In CSIS/185/1995 the claimant lived in the same property as his ex-wife.  He had his own room and shared use of a bathroom and communal areas.  It seems that the claimant did not physically use the kitchen – rather his daughter, who lived elsewhere, would visit and prepare food for him in the kitchen.  On those facts the tribunal concluded that the claimant normally resided with his ex-wife.  Allowing his appeal, Mr Commissioner Walker took the view that “the mere use of the kitchen to prepare food for her father by the claimant’s daughter does not amount to his ‘sharing’ of that ‘accommodation’ any more than if the daughter had prepared his food in her own kitchen and brought it to the mother’s house he could be said to have been sharing his daughter’s kitchen” (at paragraph 5).

18.	In CIS/2532/2003, in which CSIS/185/1995 was not discussed, Mr Commissioner Jacobs took a different view.  In that case the claimant did not herself make use of the kitchen because of her disabilities.  However, some meals were prepared for her in the kitchen and she stored medication in the fridge.  Mr Commissioner Jacobs held that this was sufficient to justify a finding that the claimant had use of the kitchen, even if she did not personally visit it.

19.	Mrs Commissioner Parker reviewed the reasoning in both these decisions in CSIS/652/2003.  The learned Commissioner preferred the view of Mr Commissioner Jacobs in CIS/2532/2003, explaining that “it is irrelevant that a person does not visit a kitchen if he makes use of it; he then shares that kitchen with others who use it” (at paragraph 15).

20.	I respectfully agree with Mrs Commissioner Parker in CSIS/652/2003 that the view of Mr Commissioner Jacobs in CIS/2532/2003 is to be preferred to that advanced in CSIS/185/1995.  I say so for two main reasons.

21.	The first is as a straightforward matter of precedent.  The general approach is that where there are two conflicting decisions of equal status and the earlier decision was fully considered in the later decision, then the later decision should be followed unless the judge is convinced that the later decision is wrong e.g. because some binding authority had not been cited (see R(IS) 13/01 at paragraph 4).  On that basis the presumption is that CSIS/652/2003 (and by implication CIS/2532/2003) should be followed in preference to CSIS/185/1995. 

22.	The second factor is that in any event I respectfully disagree with the reasoning that Mr Commissioner Walker used in CSIS/185/1995 to justify his conclusion.  In my view it strayed too far from the underlying question which had to be addressed – that question was not whether or not the claimant was sharing his ex-wife’s kitchen, or indeed his daughter’s kitchen in a separate property elsewhere.  The question was whether he was normally residing with his ex-wife.  Put that way, the hypothetical situation involving the daughter’s kitchen answers itself.  In addition, I note in CSIS/185/1995 that the claimant was specifically prohibited from having use of the living room in his ex-wife’s house.  Yet there was no suggestion that he was barred from the kitchen.

The use of the kitchen in the present case

23.	The appeal tribunal in this case confirmed the facts as stated in the Secretary of State’s initial submission.  It found that the facts were not in dispute and that the claimant shared accommodation with non-dependants (being her son and daughter-in-law).  As a result, the severe disability addition was not applicable.

24.	The tribunal was entitled to make these findings on the facts before it.  It is true that in an ideal world the tribunal might have elaborated rather more by way of its primary findings of fact.  However, I am satisfied that the tribunal applied the correct legal test and reached a decision that it was entitled to do on the facts.  Its decision discloses no error of law.

25.	In reaching this decision I have of course considered the arguments advanced on the claimant’s behalf.  Her representative argues that the claimant does not share her son’s kitchen.  However, as I have sought to explain, the claimant has some shared use of the kitchen within the understanding of that expression in CIS/2532/2003 and CSIS/652/2003.

26.	It is also said that the claimant has no relationship with her daughter-in-law, who refuses to have contact with her.  But the test is not whether “they were living together as a family”.  The question is whether the claimant was normally residing with non-dependants, indicating a linkage with the same property.

27.	The tribunal was entitled to reach the decision it did.  This is also in accord with the plain meaning of the expression “normally resides with”.  Assume that the claimant’s son were asked “Where does you mother live?” or “Where does your mother reside?” His answer most probably would be “She can’t manage by herself any more; she lives [or resides] with me – we have had a granny annex built out the back of our house”.

Conclusion

28.	I must therefore dismiss the appeal.  My decision is as set out at paragraph 1 above.

	(signed on the original)	N J Wikeley
		Deputy Commissioner
		
		23 September 2008