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

Court of Appeal

Social security – Housing benefit – Entitlement – Deemed occupation of dwelling as home – Trial period in residential care accommodation – Intention to return to dwelling – Whether entitlement to benefit ceasing on first day of benefit week after decision to remain in residential accommodation – Housing Benefit (General) Regulations 1987, regs 5(7B), 5(7C)

The interested party was a tenant of a property and was entitled to housing benefit as a person liable to make payments in respect of that dwelling for the purposes of s 130(1) of the Social Security Contributions and Benefits Act 1992. He was in frail health and entered residential care accommodation for the purposes of determining whether it would be suitable for his needs. He decided that it was and the local authority was informed that the landlord had been given four weeks notice to terminate the tenancy. The authority terminated the interested party's entitlement to housing benefit as from the date of his decision that the residential accommodation was suitable for his needs and sought to recover the overpayment that had been made. The interested party died, and his appointee appealed against that decision. The appeal tribunal ruled that he had been entitled to receive housing benefit until the expiration of the notice given to the landlord. The authority appealed to the Social Security Appeal Commissioner, who held that the entitlement to housing benefit ceased from the first day of the benefit week after the change in circumstances, namely the decision of the interested party that the residential accommodation was suitable. The Secretary of State appealed to the Court of Appeal.

Appeal allowed. On the true construction of the regulations, a claimant for housing benefit who entered residential care accommodation on a trial basis with the intention of returning to his home should that accommodation not meet his needs was, while that home was not let or sub-let, entitled to housing benefit for a period of up to 13 weeks, regardless of whether or not during that period he took the decision to remain in the residential accommodation.

M. Demetriou for Appellant
Philip Coppel for Respondent

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