R (Kadhim) v Brent London Borough Council Housing Benefit Review Board

Housing Benefit (General) Regulations 1987, regulation 3(4), makes the sharing of accommodation other than a bathroom, lavatory or communal area a necessary but not sufficient condition of residing with another person. Whether persons reside together remains a question of ordinary meaning on all the facts.

A proposition treated as necessary to an earlier decision does not bind a later court where it was merely assumed and was neither argued nor considered. That exception to precedent is narrow. It applies only in clear cases, with a later court proceeding cautiously and respecting the usual assumption that its predecessor addressed matters essential to its decision.

The appellant claimed housing benefit while living in the same house as his landlord, who was his brother. The Housing Benefit Review Board found that he shared the kitchen and living room with his brother. It treated that finding as conclusively establishing residence with the landlord under regulation 3(4) of the Housing Benefit (General) Regulations 1987.

On judicial review, Munby J held that the Board had given insufficient reasons and remitted the matter to a differently constituted Board. That part of his order was not challenged. He nevertheless considered himself bound by Borough of Thamesmead v Goonery to reject the appellant’s requested declaration that shared accommodation was necessary, but not sufficient, for residence.

The appeal concerned whether that earlier Court of Appeal decision bound the court, and the proper construction of regulation 3(4).

1. Appeal allowed. The court granted the requested declaration. Under regulation 3(4) of the Housing Benefit (General) Regulations 1987, sharing accommodation other than the specified excluded areas is necessary before a person can be found to reside with another. It does not itself make residence inevitable. The Board must decide the remitted case on that basis.

2. The ordinary meaning of residing with another remains the governing factual question. In practical terms, sharing a kitchen or living room will often strongly support a finding of residence. The regulation nevertheless only prevents such a finding where no accommodation beyond a bathroom, lavatory or communal area is shared. It does not substitute an automatic statutory definition for the ordinary meaning of residence.

3. The court held that Borough of Thamesmead v Goonery had treated regulation 3(4) as a complete test of residence. That assumption was a necessary step in its reasoning. However, the point had not been argued or considered in that case. It was therefore an assumed proposition without precedential force, rather than a binding reasoned decision on the issue.

4. The court affirmed that the exception for propositions assumed without argument must be applied with great care. It is confined to obvious cases in which the proposition was assumed rather than decided, normally because it was not expressly raised and no argument addressed it. That threshold was met on the available transcript of Borough of Thamesmead v Goonery.

5. The separate per incuriam exception did not apply. It is confined to decisions given in ignorance or forgetfulness of an inconsistent statutory provision or binding authority, producing demonstrable error. The earlier court had not overlooked the Regulations; it had assumed an incorrect construction of them.

The court ordered a detailed assessment of the appellant’s costs and an assessment under the Community Legal Services Regulations 2000.

• Court of Appeal (Civil Division): Allowed the appeal and granted the declaration that sharing relevant accommodation is necessary but not sufficient to establish residence under the Housing Benefit (General) Regulations 1987.
• High Court, Administrative Court: Munby J remitted the Board’s decision because its reasons were inadequate. He considered himself bound by Borough of Thamesmead v Goonery to refuse the requested declaration. The remittal order was not challenged.