[2024] UKUT 261 (AAC)

Although the Universal Credit scheme has now been on the statute book for more than a decade, there appears to be no Upper Tribunal case law directly in point on the proper interpretation of paragraph 9(2) of Schedule 4 and in particular on the test to be applied for determining if a “person normally lives in the accommodation with the renter”. There is a simple but good reason for this. The notion of a non-dependant has been part of the legislative architecture of various means-tested benefit schemes for a much longer period. Although the precise wording may have changed from time to time, the underlying concept remains the same – the test turns in part on whether a person “normally lives” or “normally resides” with the claimant.

For example, in the housing benefit scheme a non-dependant is defined as “any person … who normally resides with a claimant or with whom a claimant normally resides” (originally regulation 3(1) of the Housing Benefit (General) Regulations 1987 (SI 1987/1971)). In CH/4004/2004 Commissioner Levenson held that “the extra word (‘normally’) must mean something [and] … is a question of fact and degree” (at paragraph 13). On the facts of that case – in which the claimant’s cousin had been ‘sofa-surfing’ with the claimant, as he was temporarily homeless – the Commissioner ruled that no reasonable tribunal could have found that the cousin was “normally” residing with the claimant. There is certainly no suggestion that the period of time involved was decisive. Rather, a holistic assessment as what was “normally” the position was required.

A relevant authority rather closer on its underlying facts is Stroud DC v JG(HB) [2009] UKUT 67 (AAC), reported as R(H) 8/09. The claimant was the tenant of a three-roomed dwelling and was in receipt of housing benefit. She notified the local authority that her son had become a full-time student in another town. The council took the view that she was entitled to benefit only on the basis that she occupied her home on her own and that she was therefore entitled only to accommodation with two rooms. It referred the case to the rent officer, who determined her maximum rent on that basis. The FTT decided on the facts that the son was normally resident with the claimant and was a non-dependant, but that under regulations 3(1) and 74(7) of the Housing Benefit Regulations 2006 (SI 2006/213) no non-dependant deduction was to be made in respect of him, as he was a full-time student. The claimant herself was therefore entitled to housing benefit based on accommodation containing three rooms. The council appealed to the Upper Tribunal, where Judge Williams allowed the appeal but substituted a decision to the same effect.

The FTT had erred in law in that case as it had failed to consider regulation 7 of the Housing Benefit Regulations 2006, which was intended to answer the question of which home a person occupies as a dwelling for the purposes of housing benefit (see R v Swale Borough Council HBRB [2000] 1 FLR 246). Further, on a correct analysis of regulation 7, a full-time student was to be treated as occupying the dwelling he normally occupied as his home during any period of absence not exceeding 52 weeks. On the facts found by the FTT, the claimant’s son normally occupied as his home the claimant’s dwelling and as a non-dependant. However, as a full-time student, no non-dependant deduction was applicable, and the reference to the rent officer and resulting decisions were accordingly set aside.

Notably, for present purposes, the FTT in Stroud DC v JG (HB) [2009] UKUT 67 (AAC) had directed itself as follows as to the proper test to be applied: “In deciding the question whether L [the claimant’s son] is normally resident with the Appellant, and therefore a non-dependant, the tribunal has to take account of all the material circumstances. It is a matter of fact and degree. It is not merely a mathematical exercise as to where he spends most time.” That approach, of course, was entirely consistent with that taken in CH/4004/2004. Moreover, Upper Tribunal Judge Williams confirmed that was the correct approach (at paragraph 26) and indeed adopted the FTT’s findings of fact, having applied that test (at paragraph 29).

A similar question arose in SK v South Hams DC (HB) [2010] UKUT 129 (AAC), [2010] AACR 40. Upper Tribunal Judge Mesher helpfully posed the question (and summarised the answer) as follows in the opening paragraph of his decision:

Most of Judge Mesher’s careful and extended analysis concerns the proper application of statutory provisions in the housing benefit scheme which are not directly relevant to the issues raised by the present Universal Credit appeal. He concluded that the FTT had erred in law “by failing to ask itself whether Jacob [the claimant’s son] was required to be treated as occupying the claimant’s dwelling as his home from 22 September 2008 under regulation 7(13) or (16) and (17), but instead asking itself which one dwelling he was normally occupying” (at paragraph 38). As to that latter question, Judge Mesher opined as follows: