Reply To: Contrived ?


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The facts in Beltekian –v- Westminster City Council and Secretary of State for Work and Pensions [2004] EWCA Civ 1784, 8th December 2004, unreported, (CA) related to a refusal of housing benefit in February 2000 under regulation 7(1) of the Housing Benefit (General) Regulations 1987 (the ‘contrived tenancy’ rules). This decision was then upheld on review and on further review, on 21st September 2001, by a Housing Benefit Review Board. Mr Beltekian then sought to challenge this Review Board’s decision in a number of ways, which ultimately led to him appealing to the Court of Appeal

Contrived tenancy rules – inter-relationship of tests in regulation 7(1)

The claimant in CH/1586/2004 had transferred his ownership of his home, which had also been used by him as a Post Office, to his son when the Post Office business failed and he was therefore no longer able to meet his mortgage payments on the property. Seemingly the local authority had decided that the tenancy agreement fell under regulation 7(1)(h) and therefore the claimant was not entitled to housing benefit. This was the only matter that was argued before the appeal tribunal.

The appeal tribunal allowed the appeal on the basis that the exception to regulation7(1)(h) applied, namely that he could not continue to occupy the property without relinquishing ownership.

Allowing the local authority’s appeal, Commissioner Levenson ruled that in deciding whether the claimant was under a ‘practical compulsion’ (see CH/3853/2001) to sell the property consideration needs to be given both to the reasonableness of the sale and surrounding matters which could have acted to remove the need to relinquish ownership (e.g. finding a new or alternative employment or sub-letting part of the property).

Further, where a local authority or an appeal tribunal has decided that none of the provisions in 7(1)(a) to 7(1)(k) applies the authority or tribunal is under a duty to consider 7(1)(l). This duty arises because of the structure of regulation 7(1) and because “the very fact that regulation 7(1) was raised at all put 7(1)(l) into issue”.

Comment: Arguably the Commissioner’s conclusion on this second point is wrong There is nothing in the language of regulation 7(1) which compels the decision maker to consider 7(1)(l) in every case where none of the sub-paragraphs which proceed it apply. If the opening words in 7(1)(l) “in a case to which the preceding paragraphs do not apply” were said to create the duty, then a local authority would have to show that it had considered and rejected sub-paragraphs (a) to (k) before it could rely on regulation 7(1)(l).