London Borough of Hammersmith & Fulham v FJ

A person’s occupation of premises with an existing tenant does not, without more, make that person a tenant. A tribunal deciding whether a tenancy existed must determine whether a contractually binding landlord-and-tenant relationship arose, whether by express or implied agreement, estoppel or statute.

Under regulation 9, the question whether a liability was intended to take advantage of the housing benefit scheme is fact specific. Taking advantage means something close to abuse or improper advantage. A claimant’s making use of available opportunities may be relevant, but does not displace that inquiry. An error in deciding whether the claimant was previously a tenant may infect the application of the statutory exception.

The claimant, an 85-year-old woman, lived with her son in privately rented accommodation. Her son had been the sole named tenant since 2010 and received housing benefit. After his circumstances changed, the claimant supplied a later tenancy agreement naming both of them and claimed housing benefit in her own right.

The local authority terminated that award under regulation 9(1)(g) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006. The First-tier Tribunal allowed the claimant’s appeal, holding that she had always been a tenant and that regulation 9(3) applied.

The authority appealed. The central issues were whether the First-tier Tribunal had adequately determined the claimant’s alleged tenancy from 2010 and whether it had correctly approached the regulation 9(3) exception.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the claimant’s appeal was remitted for a fresh oral hearing before a differently constituted First-tier Tribunal.

2. The First-tier Tribunal’s conclusion that the claimant had always been a tenant was inconsistent with its reliance on regulation 9(3). If she had always been liable to the landlord as tenant, she had not been a non-dependant before the relevant liability was created. Regulation 9(1)(g) would then not apply and regulation 9(3) would not arise. That inconsistency alone was not material because either route would have allowed the appeal.

3. However, the finding of an existing tenancy was materially flawed. A tenancy requires a contractually binding relationship between the particular landlord and tenant. Applying Bruton v London & Quadrant Housing Trust [2002] 1 A.C. 406, the tribunal had to determine whether such a relationship arose by written, oral or implied agreement, estoppel or statute. The claimant’s residence with her son, who had exclusive possession under his own tenancy, could instead have been a licence from him. The First-tier Tribunal neither asked the correct contractual questions nor made adequate findings and reasons, contrary to Benmax v Austin Motor Co Ltd [1955] AC 370 and Re B (Appeal: Lack of Reasons) [2003] FLR 1035.

4. The First-tier Tribunal correctly took from CH/39/2007 that taking advantage of the housing benefit scheme means something close to abuse or improper advantage. MP v Sutton London Borough Council (HB) [2021] UKUT 193 (AAC) did not redefine that approach. The assessment remains fact specific. Yet the First-tier Tribunal’s conclusion under regulation 9(3) was also flawed because it substantially relied on its erroneous finding that the claimant had always been a tenant.

5. The new tribunal must decide entitlement afresh on the facts and circumstances existing on 18 November 2020, pursuant to section 12(8)(b) of the Social Security Act 1998.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the local authority’s appeal, set aside the First-tier Tribunal decision for material errors of law, and remitted the claimant’s appeal for rehearing: [2023] UKUT 203 (AAC).
• First-tier Tribunal (Social Entitlement Chamber), East London: On 20 April 2022, allowed the claimant’s appeal against the local authority’s revised decision of 18 November 2020 and found her entitled to housing benefit. That decision was set aside.