Reply To: resident landlord/close relative

#162841
d-stainsby
Participant

In R(H)3/08, the then Mr Commissioner Howell QC held, allowing the appeal, that:

"1. the tribunal had misdefined the issue by conflating the meaning of “dwelling” with “residence” and assuming that for the purposes of section 6 of the Local Government Finance Act 1992 the two must always and necessarily be coterminous. Following Frost v Feltham [1981] 1 WLR 452, “sole or main residence” is a question of fact and degree and the correct approach is to weigh up the nature and extent of the relationship between the person concerned and each of the premises at issue (paragraphs 7, 14 and 15);

2. section 131 of the Social Security Contributions and Benefits Act 1992, as amended, states that the principal condition to qualify for council tax benefit is that the claimant is liable to pay council tax in respect of a dwelling of which he is a resident, the definitions of “dwelling” and “resident” for this purpose being those given in the Local Government Finance Act 1992 in connection with council tax liability. Therefore as the claimant was liable for council tax on both flats as a resident, he similarly qualified for council tax benefit on both as a resident (Stevens v East Hampshire DC and another [1994] RA 73 considered) (paragraphs 2, 9, 16 and 17)".

Similarly in R(H)4/05, the late Ms Commisioner Fellner held, allowing the appeal, that;

1           The test of entitlement to Council Tax Benefit under section 131(3) and (11) of the Social Security Contributions and Benefits Act and under section 6(5) of the Local Government and Finance Act 1992 is liability to pay council tax on a dwelling which is the claimant’s sole or main residence and there is nowhere in the council tax statutory provisions any reference to the claimant having to occupy the dwelling as his home as a condition of entitlement (paragraphs 26 and 27);

2.             section 137(2)(h) of the Social Security and Contributions Act, which empowers the making of regulations as to when a person can be treated as occupying or not occupying a dwelling as his home, does not extend to council tax benefit where the only prescribed test is different, and the tribunal had erred in law in concluding that it did (paragraph 27);

3.             in those circumstances, regulation 4C(3) of the Council Tax Benefit (General) Regulations is of no effect (paragraph 26)."

In Doncaster BC v Stark [1997] EWHC Admin 977 (5th November, 1997) , Mr Justice Potts held that Corporal and Mrs Stark must be held to be still resident at their property in Mexborough despite them living in RAF accommodation and having deductions in respect of Council Tax  from Cpl Stark's wages.

It does seem to me that in the case we are discussing here that the Council is simply following Stark

It is arguable that "resident" for CTAX purposes ( and consequently entitlement to CTB) may have a somewhat different meaning to that of  "resides"  or "normally resides" for the purposes of HB Regulation 3

 

 

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