GN v Sevenoaks Borough Council (HB)

For housing-benefit purposes, whether a claimant previously owned a dwelling must be determined by the statutory definition of owner. A person is not an owner if, at the relevant time, he is not entitled lawfully to dispose of the fee simple.

Accordingly, a restraint order which prohibited the claimant from dealing with or disposing of the property meant that he ceased to be an owner from the date of that order. The five-year rule in regulation 9(1)(h) of the Housing Benefit Regulations 2006 did not therefore preclude benefit for a later tenancy of the former home.

The claimant had owned a house until it was transferred in 2010 by an enforcement receiver appointed to enforce a confiscation order. A High Court restraint order made in 2001 had prohibited him from dealing with or disposing of his assets, including the house.

After release from prison, the claimant became the tenant of his son, who had acquired the house, and claimed housing benefit in late 2012 and early 2013. The local authority refused the claim under regulation 9(1)(h) of the Housing Benefit Regulations 2006. The First-tier Tribunal upheld that decision, treating the claimant as the registered legal owner until the 2010 transfer.

The issue was whether he had been an owner within the preceding five years, having regard to the definition of owner in regulation 2(1).

1. Appeal allowed. The First-tier Tribunal erred in law by deciding the regulation 9(1)(h) issue without addressing the statutory definition of owner in regulation 2(1) of the Housing Benefit Regulations 2006.

2. That definition made an owner the person who, for the time being, was entitled to dispose of the fee simple. The Tribunal adopted the approach in R v The Housing Benefit Review Board for Sedgemoor District Council ex parte Weaden, 18 HLR 355 QBD: where the instrument supplies its own definition, the decision-maker must construe and apply that definition rather than import a different property-law conception of ownership.

3. From the restraint order of 8 January 2001, the claimant could not lawfully dispose of or deal with the fee simple. It was immaterial that a different factual position might have led to removal of the Land Registry inhibition. The subsequent receivership confirmed that the receiver, rather than the claimant, had the necessary power to realise and transfer the property.

4. The claimant had therefore not owned the dwelling, within the regulatory definition, during the five years before his housing-benefit claims. He could not be treated as not liable for rent under regulation 9(1)(h). Under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal set aside the First-tier Tribunal decision, substituted that conclusion, and referred the claim to the local authority for a fresh decision, including calculation and payment of any arrears.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the claimant’s appeal in [2016] UKUT 271 (AAC), set aside the First-tier Tribunal decision and substituted a decision that regulation 9 did not require the claimant to be treated as not liable.

• First-tier Tribunal (Social Entitlement Chamber): On 13 February 2014, upheld the local authority’s refusal of housing benefit on the basis that the claimant had remained the registered legal owner until 24 March 2010.

• First-tier Tribunal: A judge refused permission to appeal on 28 November 2014. The Upper Tribunal granted permission on 9 March 2015.