[2008] UKUT 34 (AAC)

IN THE UPPER TRIBUNAL	Appeal No.  CPC/3379/2008
(ADMINISTRATIVE APPEALS CHAMBER)

Before JUDGE ROWLAND

Attendances:

For the Appellant:	Mr Andrew Millar of Leicester City Council Welfare Rights Service

For the Respondent	Mr Huw James, solicitor, as agent for the Solicitor to the Department for Work and Pensions and the Department of Health

Decision:  The claimant’s appeal is dismissed.

REASONS FOR DECISION

1.	One cannot but have considerable sympathy for the claimant and her family.  The claimant is entitled to state pension credit and, following a stroke, attendance allowance.  She had been living in her own accommodation, where she had lived with her husband before his death.  Her entitlement to state pension credit was recalculated on the basis that an additional amount in respect of severe disability should be included in her minimum guarantee.  In 2006, at the age of 80, the claimant suffered another stroke, which left her bed-bound and unable to return to her home.  Faced with the alternative of her going into residential care upon her discharge from hospital, her son took her into his home on 14 August 2006, giving her the bedroom of a daughter who was away at university.  Following assessment of the claimant’s needs, Leicester City Council decided she should have 21 hours of care per week and that two care workers were required because she needs lifting.  Therefore, three times a day (not four times as recorded by the tribunal), seven days a week, two carers from the Social Services Department come in and attend to her needs.  They have a key to the house.  The claimant’s son and daughter-in-law are out at work during much of the day during the week, although her son is at home in the mornings.  They prepare meals for the claimant in the morning and evening.  They also do the claimant’s laundry.  They spend time with her.  The claimant pays her son £30 per week, which appears to be at her insistence; it is not a condition of her occupation of her room.

2.	On 14 March 2007, the Pensions Service discovered from the local authority that the claimant was no longer living at her former home.  In the light of that information, the Secretary of State decided on 22 March 2007 that the claimant was no longer entitled to have her state pension credit calculated on the basis that an additional amount in respect of severe disability was included in her minimum guarantee and the award of state pension credit was accordingly superseded with effect from 14 August 2006.  The claimant appealed but her appeal was dismissed and she now appeals against the tribunal’s decision with the leave of a salaried tribunal chairman.

3.	By virtue of the terms of regulation 6(4) of, and paragraph 1 of Schedule 1 to, the State Pensions Credit Regulations 2002 (S.I. 2002/1792), the issue in this case is whether the claimant “is normally residing with” her son and daughter-in-law.  Paragraph 3(1) of Schedule 1 provides –

“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.”

4.	Mr Millar’s argument on behalf of the claimant, presented with considerable eloquence and skill, is that the claimant cannot be regarded as residing with her son and daughter-in-law because she does not “share any accommodation” with them.  He submits that the tribunal erred in taking the view that the claimant “can have access to any part of the home if she was able to do so”.  In his submission it is material that she does not in fact make use of any room other than her bedroom, which her son does not use, and that, if she were not so disabled, she would be occupying her own home and not living with her son and daughter-in-law.

5.	Four Social Security Commissioners’ decisions were discussed during the hearing.  Mr Millar relied upon CSIS/185/1995.  In that case the claimant and her ex-husband lived in the same premises, the claimant having use of one bedroom and the living room, from which her ex-husband was barred, and he having use of another bedroom.  They did not eat together and the adjudication officer conceded that they were not living together as husband and wife.  It appears that the claimant used the kitchen but her ex-husband did not in practice do so, although his daughter cooked meals for him there.  Mr Commissioner Walker QC held that, in those circumstances he and the claimant did not share the kitchen, although the Commissioner held that there was a question as to whether they shared his bedroom because the claimant kept some clothes there and might have had access to it.

6.	Mr James relied on CIS/2532/2003, CSIS/652/2003 and CPC/1446/2008.  In the first of those cases, no reference was made to CSIS/185/1995 but, in both the other cases, the Commissioners declined to follow CSIS/185/1995 and preferred CIS/2532/2003.

7.	The facts in CIS/2532/2003 were similar to the facts in the present case, save that the house was owned by the claimant and her husband and their children had come to live in it when they had retreated to an extension they had had built on to it.  The claimant was confined to the extension by her disabilities.  There were no kitchen facilities in the extension but her husband made some use of the main kitchen in the house and the children prepared meals there for the claimant.  Mr Commissioner Jacobs held that that was an adequate basis for finding that she shared the kitchen with her children and was residing with them, even though he also said that “the claimant and her husband had undoubtedly set up a separate household from their children”.

8.	In CSIS/652/2003, the claimant and his wife lived in a seven-room house.  Their son had exclusive use of a bedroom and a living room and generally used a different bathroom.  The tribunal found that he shared the kitchen with his parents and sometimes ate meals with them and socialised with them in the lounge.  Mrs Commissioner Parker preferred the approach of Mr Commissioner Jacobs to that of Mr Commissioner Walker but considered that the tribunal would have been right to find that he shared the kitchen even if his mother had cooked all his meals for him there and he had never visited it.  She said –

“19.	In the present case, the family home remains as it has been for years, 15 B Street.  The son and his parents are not estranged.  They lead a life very similar to families everywhere.  Each of them lives his or her life connected with the same dwelling.  They share that dwelling, whether or not the kitchen is taken into account, in a way which is not done by residents in a group of bed sitting rooms, however friendly those residents are.  From the facts accepted by the tribunal and as apparent from the evidence, this is a normal domestic set-up where parents and an adult child, who remain a happy family unit, live within the same premises; on any ordinary use of language, they are inevitably described as normally residing with each other because they share the house as their same residence when one looks at the living arrangements as a whole.”

9.	CPC/1446/2008 was more like CIS/2532/2003.  The disabled claimant lived in an annexe to a house owned by her son and daughter-in-law.  However, although the annexe consisted of a lounge, a bedroom and a bathroom, there was no kitchen and the claimant used the kitchen in the main part of the house when she wished to heat things up in the microwave.  Mr Deputy Commissioner Wikeley adopted Mr Commissioner Jacobs’ reasoning and held that the tribunal had been entitled to find that there was shared use of the kitchen and that it did not matter whether or not the claimant had any contact with her daughter-in-law.

10.	In my judgment, Mr Millar is right to emphasise the word “only” in paragraph 3(1), which arguably was overlooked in both CSIS/185/1995 and CIS/2532/2003.   As Mr Deputy Commissioner Wikeley said in CPC/1446/2008, paragraph 3(1) provides “a necessary but not sufficient condition for finding that two or more persons are normally residing with each other”.  I am also prepared to accept Mr Millar’s submission that a person does not necessarily share a kitchen merely because meals are prepared for him or her there.  However, I do not accept his submission that “share” in this context means “use”.  In my judgment, that word takes its flavour from its role in deciding whether two or more persons are normally residing with each other.

11.	In all three of the decisions upon which Mr James relied, the Commissioners cited Lord Slynn of Hadley in Chief Adjudication Officer v Bate [1996] 1 W.L.R. 814 (also reported as R(IS) 12/96) for his observations on the meaning of “resides with” in the equivalent income support legislation, but I agree with Mr Millar that it is necessary to look at the whole of what he said and not just the two sentences relied upon by the Commissioners.  At the time material to the decision in Bate, regulation 3(4) of the Income Support (General) Regulations 1987 (S.I. 1987/1967) was in the same terms as the first part of paragraph 3(1) of Schedule 1 to the 2002 Regulations, i.e., up to the words “communal area”.  Lord Slynn said –

“The scheme of the legislation as I see it is that if a claimant has to make arrangements to enable him to deal with his disability (not just to be housed) then the premium is payable, but if someone is living with him and able to look after him (or who may be assumed to be likely to look after him) than the premium is not payable.

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.  There is no need to read into the phrase ‘resides with a claimant’ the qualification that the household has to be that of the claimant or that the dwelling must be one in which the claimant has the legal interest and that the other person is there in a subordinate position (it is not his household) or without any legal interest before that person can reside with the claimant.  Glidewell J suggested that for a husband and wife the normal phrase would be that they ‘live together;’ that is no doubt right but the act of living together means that he lives (or resides) with her and she lives (resides) with him.

The phrase ‘resides with a claimant’ thus includes the situation where the household in a broad sense is that of the claimant (as contemplated in paragraph 13(3)(c) and (4) of Schedule 2 to the Regulations of 1987 [equivalent to paragraph 2(3) and (4) of Schedule 1 to the 2002 Regulations]) and also where it is that of the other person.  Who has the ownership or the tenancy, for the purpose of deciding whether a person resides with a claimant, is irrelevant.  Regulation 3(4) gives some indication of the nature of ‘residing with;’ it imposes the qualification that a person resides with another only if they share ‘any’ accommodation except, e.g., a bathroom.  It does not limit to the situation where the other person shares ‘the claimant’s’ sitting-room.”

12.	The concept of household is therefore important, as it also is when considering whether a husband and wife are members of a couple (see section 17(1) of the State Pension Credit Act 2002) or whether two unmarried people are living together as husband and wife (see R(G) 3/81).  It seems to me that the reference to sharing accommodation in paragraph 3(1) of Schedule 1 to the 2002 Regulations is intended to make it clear that people are only to be regarded as residing with each other if they are sharing accommodation in a way that is consistent with living in the same household.  Paragraph 3(1) is not intended significantly to limit the concept of residing together but rather, as Lord Slynn said, to indicate what it means.  

13.	Mrs Commissioner Parker’s observations in CSIS/652/2003 are also important.  Where members of a family (in the non-technical sense of that word) are living in the same household on a non-commercial basis, they can usually be regarded as sharing the whole of the dwelling.  The fact that adults and older children respect each other’s privacy and do not in fact make use of each other’s bedrooms is immaterial.  In this light, it is clear that “share” does not mean “use with another person” as Mr Millar submitted, but means “have the use of with another person” in the sense of “have a shared right to use”.  All the members of the household are sharing the accommodation within the dwelling and “residing with” each other.  This approach is entirely consistent with the purpose of the legislation as explained by Lord Slynn, there being no logical reason why it should make any difference to what extent a claimant makes use of all the rooms occupied by the household when the focus is on whether there is anyone else in the household who may be assumed to be available to provide attention or supervision for the claimant.

14.	Of course, it is not invariably the case that members of the same family living in the same building are living in the same household.  They may deliberately constitute themselves into different households, either because they are estranged or because they wish to establish their independence to that extent, perhaps because they have previously been used to living in different premises altogether.  In those circumstances, a person resides only with the members of the family who are members of the same household and the fact that that household may share, say, a kitchen with other family members living in a different household does not mean that they also reside with those other family members.

15.	However, where a claimant in receipt of attendance allowance lives in the same building as other members of his or her family, it seems to me that it will be unlikely that they are living in separate households because the purpose of living in the same building will usually have been precisely so that the claimant can receive the attention or supervision that entitlement to attendance allowance implies is needed from those other members of the family, at least to some extent.  There will, of course, be exceptions, but often the degree of independence there will be will not be significantly greater than one would usually expect where adults are living together in a household other than as husband and wife.  

16.	Thus, the key question where a single person seeks to have an additional amount in respect of severe disability included in his or her minimum guarantee when living in the same building as other people is whether he or she lives in the same household as those other people.  They are only to be treated as living in the same household if they have a shared right to use accommodation other than a bathroom, a lavatory or a communal area.  Actual use of accommodation is evidence of a right to use it but is neither necessary nor conclusive.  The members of a household have shared use of the accommodation it has the right to occupy.  The way accommodation is actually used may also be relevant when considering whether people are residing together.  In particular, the fact that one member of a family frequently cooks for another member may be powerful evidence that they live in the same household.

17.	On that approach, the conclusion in CSIS/185/1995 can be defended on the basis that the claimant’s and her ex-husband’s respective use of the kitchen was relevant to the question whether they lived in the same household and the conclusion that they did not reside with each other is justifiable on the basis that they did not live in the same household.  On the other hand, it is arguable that CIS/2532/2003 was wrongly decided because the Commissioner took the view that the claimant and her husband had established a separate household from their children but still decided that they normally resided with the children, although it seems to me to be at least doubtful on the evidence mentioned in the Commissioner’s decision that there really were separate households.  CSIS/652/2003 and CPC/1446/2008 appear to be cases where there were plainly common households and the fact that the mother of one claimant might have cooked for him and the son of the other claimant cooked for her were merely indications of that fact in each case.  Thus, I am respectfully inclined to agree with the ultimate decision reached in all four cases although I would not agree with all of the reasoning in any of them.

18.	The upshot is that, while I agree with Mr Millar that looking at the whole of Lord Slynn’s reasoning calls into question some of the reasoning of the Commissioners upon whose decisions Mr James relies, the effect is not to support Mr Millar’s main submission.  Mr Millar drew my attention to Secretary of State for Work and Pensions [2003] EWCA Civ 1111 (reported as R(JSA) 9/03) but applying a household test is consistent with that decision, where the claimant’s household occupied two houses.

19.	I do not accept Mr Millar’s submission that it is material that the claimant in the present case cannot easily call for assistance and her son does not watch over her continually.  He and his family are still no doubt able to provide more than adequate care when they are at home and those concerned are surely right that the risks involved in her being by herself for some periods of the day are outweighed by the advantages of being with her family rather than in residential care.  The rationale for the legislation identified by Lord Slynn is not undermined because the claimant’s son and family are out for part of the day.  They are still able to provide care for the rest of the time.

20.	Mr Millar also argued that it would be unfair to construe the legislation to the claimant’s disadvantage because the claimant and her family are bearing the cost of care without any adequate recompense, notwithstanding the saving to the public purse involved because the claimant is not in residential care.  However, as Lord Slynn makes clear, the legislation expects members of a claimant’s household to provide help.  It is arguable that the more rational focus of discontent might be the fact that carer’s allowance is not payable to those who are gainfully employed, however much care they also provide, although the explanation is presumably that carer’s allowance exists for those whose availability for employment is severely limited by their caring responsibilities.  There are no doubt arguments that can be made as to why the legislation should provide more financial support for carers, whether directly or through additional benefits paid to the people for whom they care, but those are matters for Parliament and cannot assist me in interpreting the legislation currently in force, the rationale for which is clear even if not uncontroversial.

21.	In the present case, the tribunal found that “were it not for her disability, [the claimant] would have had full access to all of the residence; just as equally, [her son] has full access to [the claimant’s] room”.  It is clear that the claimant’s son had taken the claimant into his household and she therefore had shared use of the whole house.  She was residing with him and his family and, as this was not a short-term arrangement, was “normally residing with” him and so no longer entitled to have her state pension credit calculated on the basis that an additional amount in respect of severe disability was to be included in her minimum guarantee.  Accordingly, I dismiss this appeal.

MARK ROWLAND
10 December 2008