Housing Benefit and Council Tax Benefit– Non-dependent deduction – Regulation 3(1) and 74(7)(a) – meaning of normal home
The appellant was in receipt of housing benefit (HB) and council tax benefit (CTB) from Bournemouth Borough Council. The appellant’s mother, a resident of Germany lived with her for various periods of time. Bournemouth Borough Council decided that the appellant’s mother was actually living with the appellant, working in the United Kingdom and claiming working tax credit from the address in Bournemouth and she should properly have been included as a non-dependant on the appellant’s benefit claim. The First-tier Tribunal (F-tT) dismissed the appellant’s appeal on 29 January 2016 and ruled as a matter of law that a person can be resident in more than one place at the same time. The appellant appealed to the Upper Tribunal (UT), the issue before the UT was the proper construction of regulations 3(1) and 74(7)(a) of the Housing Benefit Regulations 2006; what is meant by the expression “normally resides with” and the inter-relationship between the statutory definition of “non-dependant” and the exemption from a non-dependant deduction where the person concerned has their “normal home” elsewhere.
Held, allowing the appeal, that;
an adult may well reside in more than one place but he or she can only have one ‘normal’ home or residence. The F-tT accordingly erred in law as it proceeded on the assumption that a person cannot only reside in more than one place at the same time but can also normally reside in both places at the same time (paragraph 32);
the test for a non-dependant under regulation 3(1) is whether the person concerned “normally lives with the claimant” that involves a three-stage test. First, does the person reside in the same dwelling as the claimant? Second, does the person normally reside there? Third, does the person normally reside with the claimant? (paragraph 34);
a HB claimant under the 2006 Regulations can only qualify for benefit in respect of one property. There is no reason why a non-dependant should be in any different position, i.e. that he or she should only have one place where they normally reside /have their normal home;
regulation 74(7)(a) is otiose (paragraph 56).
The Judge re-made the original decision, directing Bournemouth Borough Council to recalculate the appellant’s entitlement to housing benefit and council tax benefit.