Secretary of State for Work & Pensions v Selby District Council & Anor

Under the Housing Benefit General Regulations 1987, the intention to return home required by regulation 5(7B)(b) is assessed when the claimant enters residential accommodation. The condition in regulation 5(7B)(c), concerning letting or subletting, continues throughout the stay. Once regulation 5(7B) applies, regulation 5(7C) deems the claimant to occupy the former home for up to 13 weeks. That deeming continues even after the claimant decides not to return and gives notice to end the tenancy. Regulations 5(8B) and 5(8C), which require an intention to return throughout the absence, do not justify importing that requirement into regulation 5(7B) and (7C).

Mr Frederick Bowman received housing benefit for his home in Tadcaster. He entered residential care on 22 July 2003 to assess whether it suited his needs, intending to return home if it did not. On 19 August he decided to remain in care and gave notice ending his tenancy on 3 September. The council terminated his housing benefit from 19 August and recovered an alleged overpayment.

The appeal tribunal held that benefit remained payable until the tenancy expired. On 14 January 2005, the Social Security Commissioner held that the supersession took effect from 25 August, the first day of the following benefit week, so there was no overpayment. The Secretary of State appealed. The central issue was whether regulations 5(7B) and 5(7C) preserved entitlement after the claimant formed an intention not to return home.

1. Appeal allowed. The court declared that Mr Bowman remained entitled to housing benefit during his lifetime and, had he lived, would have been entitled to it until the notice to quit expired on 3 September 2003.
2. Section 130(1) of the Social Security Contribution and Benefits Act 1992 required liability to make payments in respect of a dwelling occupied as the claimant’s home. The regulations supplied the relevant rules for determining whether the dwelling was to be treated as the claimant’s home.
3. Regulation 5(7B) had to be considered before regulation 5(7C), since it prescribed the conditions for the deeming provision to operate. Regulation 5(7B)(a) was satisfied because the residential accommodation was entered for the purpose of assessing its suitability. The intention to return required by regulation 5(7B)(b) had to exist when the claimant entered the accommodation. Regulation 5(7B)(c), concerning the dwelling not being let or sublet, applied throughout the period in residential care.
4. Regulation 5(7C) was a deeming provision. It treated the claimant as occupying the former home for up to 13 weeks from entry into residential accommodation, subject to the overall 52-week limit. The deeming therefore continued despite a later decision not to return, more precisely until the right to exclusive possession ended by operation of the notice to quit.
5. Regulations 5(8B) and 5(8C) supported that construction by using different language. Under those provisions the intention to return continued throughout the temporary absence. That condition could not be inserted into regulations 5(7B) and 5(7C), which were differently expressed.

• Court of Appeal (Civil Division) — In [2006] EWCA Civ 271, allowed the Secretary of State’s appeal and made a declaration preserving entitlement to housing benefit until expiry of the notice to quit.
• Social Security Commissioner — On 14 January 2005, Mr Charles Turnbull held that the supersession took effect from 25 August 2003, so the benefit paid to that date was not an overpayment.
• Appeal tribunal — Held that housing benefit remained payable until the tenancy expired on 3 September 2003.