IN THE UPPER TRIBUNAL Case
No. CPC/1728/2011
ADMINISTRATIVE APPEALS
CHAMBER
Before Judge Mark
Decision: The appeal is allowed. I set aside the decision of
the tribunal and I substitute my own decision setting aside the decision of the
decision maker dated 23 April 2010 that there had been an overpayment of state pension
credit of £372.93 of which £276.69 was recoverable from the claimant and
substituting my own decision that there has been no overpayment of state
pension credit.
REASONS FOR DECISION
- This appeal is brought
with the permission of an Upper Tribunal Judge and is supported by the
Secretary of State, who asks me to set aside the decision of the tribunal
and remit the matter for rehearing on the basis that further facts need to
be found to enable a decision to be arrived at.
- The appeal to the tribunal
was expressed to be from a decision dated 22 April 2010 that there was a
recoverable overpayment of pension credit from 25 August 2009 to 29 March
2010 because the claimant failed to disclose the material fact that a
lodger had been living with her. In fact the overpayment decision relates
only to alleged overpayments to 1 February 2010, because disclosure was
then made, although payments were not reduced for some time afterwards.
- It is plain that the
claimant was in receipt of state pension credit during that period on the
basis of an earlier decision awarding that credit. For it to become an
overpayment, there is first needed a decision superseding or revising the
original award for the period of the alleged overpayment. In the present
case there is no evidence of such a decision on the file. Instead it is
asserted in the submission to the tribunal that there was a decision dated
23 March 2010 that the claimant’s state pension credit fell to be
superseded with effect from 23 March 2010. That did not affect her
entitlement prior to that date.
- This is not a matter to
which attention has previously been drawn. Further, although the appeal
against the overpayment decision is on grounds which would affect the
correctness of the decision of 23 March, no appeal appears to have been
brought against that decision.
- The basis of the appeal
has at all times been that the person living with the claimant is not a
lodger for the purposes of the State Pension Credit Regulations 2002, but
a non-dependant. The tribunal found that JH, the person who had moved in
to live in the claimant’s flat, was a former boyfriend of her
granddaughter who had become homeless. The claimant was in receipt of
housing and council tax benefit and the terms on which he had moved in
were that he would have to re-imburse her for whatever was the
non-dependant deduction for housing benefit purposes. The tribunal
further found that this was not £50 per week, the figure which formed the
basis of the overpayment decision, but £42.80 until 17 May 2010, when it
had reduced to £25.65.
- While the tribunal
concluded that JH was a lodger and that his presence and the terms on
which he was there should have been disclosed to the pension credit
office, it set aside the overpayment decision and directed the
recalculation of the overpayment on the basis of the reduced payments. It
also expressed the hope in its statement of reasons dated 15 April 2011
that the claimant’s entitlement would be recalculated for the period from 30
March 2010 on the basis of those findings. I do not know whether there
has been any revision or supersession of the decision of 23 March 2010 on
that basis.
- The tribunal concluded
that the payments which were received by the claimant were to be classed
as her income and taken into account under regulation 15(5)(e) of the
State Pension Credit Regulations 2002, because they were “payments due
from any person in respect of board and lodging accommodation provided by the
claimant.” Permission to appeal to the Upper Tribunal was granted
because the tribunal overlooked the definition of board and lodging
accommodation in paragraph 1(2) of those Regulations, which defines the
expression as meaning “accommodation provided to a person or, if he is a
member of a family, to him or any other member of his family, for a charge
which is inclusive of –
(i)
the provision of that
accommodation, and
(ii)
at least some cooked or prepared
meals which are both cooked or prepared (by a person other than the person to
whom the accommodation is provided or a member of his family) and are consumed
in that accommodation or associated premises,
but
not accommodation provided by a close relative of his or of his partner, or
other than on a commercial basis”.
- The Secretary of State on
this appeal accepts that the tribunal failed to deal with this and submits
that the evidence available does not indicate the terms under which JH
paid money to the claimant in return for being allowed to stay at her
address, and that the matter should be remitted to a new tribunal for
appropriate findings to be made.
- The Secretary of State
submits that there are three possibilities. The first is that the
arrangements amounted to the provision of board and lodging within the
definition. I am satisfied that the tribunal’s finding that JH was only
to compensate the claimant for her loss of benefit and nothing else, so
that she was not out of pocket in that respect, together with the finding
that he was an acquaintance who had become homeless, precludes such a
finding, as it is plain that the arrangement was not on a commercial
basis. Indeed she would still seem to be out of pocket in respect of
electricity and other services used by him at the flat.
- Secondly, the Secretary of
State submits that the claimant may be found to have become a sub-tenant
of the claimant, when the sums paid would have to be taken into account
under regulation 15(5)(i) of the 2002 Regulations. It is pointed out that
in paragraph 5 of the Secretary of State’s submissions to the tribunal it
is stated that the weekly income was included in the claimant’s pension
credit assessment as income from a sub-tenant. That does appear to have
been the basis of the assessment as appears from the disregard of £20 per
week at, for example, p.28 of the file, where, had the occupation been on
a board and lodging basis, the disregard would have been greater under
paragraph 8(1)(b) of Schedule 4 to the 2002 Regulations.
- The third possibility is
that JH was simply a non-dependant, in which case the Secretary of State
accepts that any payments received from him would not count as income for
state pension credit purposes, and the claimant’s appeal from the decision
of the decision maker should succeed.
- The question whether an
occupier is a licensee or a tenant has been considered in many cases.
Generally, a lodger who has no separate apartment is only a licensee
(Halsbury’s Laws of England, 4th ed., 2006 re-issue, vol.27(1)
para.16). In Street v Mountford, [1985] AC 809, at p.818, Lord
Templeman quoted with approval the words of Blackburn J in Allan v Liverpool Overseers (1874), LR 9QB 180 at 191-2):
“A lodger in a house, although he has the exclusive use of
rooms in the house, in the sense that nobody else is to be there, and though
his goods are stowed there, yet he is not in exclusive possession in that
sense, because the landlord is there for the purpose of being able, as
landlords commonly do in the case of lodgings, to have his own servants look
after the house and the furniture, and has retained to himself the occupation,
though he has agreed to give exclusive enjoyment of the occupation to the
lodger.”
- “Lodger” in this context
is not limited by the definition of “board and lodging accommodation” in
the 2002 Regulations.
- Further, there are many
examples in the reported cases of family arrangements and acts of
friendship or generosity not being treated as giving rise to a tenancy
even where exclusive occupation is given to the person alleged to be a
tenant (see examples in Halsbury’s Laws of England, 4th ed.,
2006 re-issue, vol.27(1) at paras 8-16).
- There is no finding by the
tribunal as to whether JH was given exclusive occupation of a bedroom, or
indeed anything in the record of proceedings as to the terms other than
monetary on which the claimant permitted part of her flat to be used.
There is, however, a finding by the tribunal that the claimant needed to
disclose that the payment was for board and lodgings, and no facts were
put forward by the Secretary of State to support the contention that there
was a sub-letting. I would also expect any such sub-letting to be
contrary to the terms of the claimant’s lease from the local authority.
- The amount of the
overpayment of which recovery is sought is relatively small, and the
question whether the occupation was by way of licence or tenancy is
dependent on the special facts of this case. I do not consider that it is
appropriate to remit the case to a new tribunal, and consider that I
should substitute my own decision. Indeed, given the apparent absence of
any relevant supersession of the previous award covering the period of the
alleged overpayment, this appeal must succeed in any event and the
overpayment decision must be set aside.
- I am satisfied that on the
evidence before me, on the balance of probabilities JH became a lodger and
had no exclusive right of occupation of any part of her flat. Further, I
consider that even if the terms of occupation were such that the claimant
retained nothing of her own in the room other than furniture, and he was
given exclusive occupation, that was by way of an act of generosity on the
part of the claimant with no benefit to herself, and was one of those
special cases where no tenancy would have arisen as a result.
- Accordingly, although the
claimant ought to have reported the change of circumstances sooner than she
did, JH was simply a non-dependant and his presence and the payments made
by him, such as they were, did not affect the claimant’s entitlement. It
follows that the supersession decision ought to be revised if still
possible, and if that has not already happened, or, if it cannot now be
revised, it ought to be superseded. That is not something that I can
direct on this appeal, but I can and do set aside the overpayment
decision.
(signed
on the original) Michael Mark
Judge of the Upper Tribunal
29 March 2012
