Appeal Service Decision

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    Laura Moore

    We refused a claim for HB under Reg 9 as not a commercial tenancy. The customer sold their property and gave £66,000 from the profit to his son, who used this towards buying another property which he is charging them rent to live in. The Land Registry docs showed that it had been agreed that the parents could live at the new address for the rest of their lives.
    The customer appealed and T.A.S. allowed their appeal. Their statement of reasons said that it was a commercial tenancy and their payment of £66,000 and the occupancy agreement on the deeds did not affect this.
    I have another similar case which I was waiting on T.A.S. to make a decision on. Now I have the decision I know they should be put in payment but I am not happy about this!
    Has anyone had any similar cases?
    When I prepared this for appeal I did consider treating it as taking advantage of the HB scheme but I didn’t think there was the evidence to support this.


    “For the rest of their lives” indicates the intention to create a tenancy for life.

    2258/2004 is worth a read as is 3586/2005 and a third one which I forget but someone else will no doubt remember.

    Essentially a tenancy for life takes effect as either a 90 or 99 year lease (Cannot remember which) As such it is a long tenancy and is excluded.

    Not sure about the commerciality/take advantage bits but…


    Are you saying that you have thought of some alternative reasons why the claim should have been rejected, you wish you had thought of them before the Tribunal, and what can you do about it now? Is that a fair summary?

    If so, your problem is that you can only appeal to the commissioners on the basis that the Tribunal went wrong in law. The Tribunal is not required to consider issues not raised in the appeal unless they are so obvious that no Tribunal in its right mind would have overlooked them.

    However, there has been a Commissioner’s decision that says if any part of Reg 9(1) is in issue in the appeal, such as commerciality, and the Tribunal decides that it is not relevant, the Tribunal is then obliged to go on to consider Reg 9(1)(l) even if the appeal did not raise it. The case is CH/1586/2004. That might get you leave to appeal to the Commissioner.


    Another Commissioners Decision about “long tenancies” is:


    Particularly paragraph 8


    Laura Moore

    Thank you.

    I’ve checked his tenancy agreement which states ‘this agreement shall continue during the lifetime of the occupier’. My case does look very similar to one of the cases you gave the Commissioner’s decisions for.
    I think there are reasonable grounds to apply Reg 12 (2) (a).

    I don’t think I left out anything relevant in the submission to T.A.S., I discussed the case with Dave Jones at the DWP beforehand who agreed it could be refused as non-commercial. He also suggested that as they had £66K of their money tied up the property, they could be considered to hold a ‘moral stake’ in the property. He felt that in the event of court action to evict, this would be taken into account. Obviously T.A.S. did not agree.

    Kevin D

    [b:ce0b8e9e49]CH/2743/2003[/b:ce0b8e9e49] has been somewhat clarified by subsequent CDs.

    For a LT to have any legal effect, it must be in a particular form. See:

    [b:ce0b8e9e49]CH/3586/2005 (paras 23-28 ) &

    CH/2743/2003 in itself is not enough.


    I had a very similar case which I won at appeal. We argued that by contributing money towards the purchase of the property, a resulting trust had been created which the tenant was a beneficiary of (see R(SB) 1/85). Therefore Reg 9(f) applied and the tribunal were not satisifed the the liability was not intended as a means of taking advtantage of the Housing Benefit.


    I agree with the last post. In my view clt has an equitable (if not legal) interest in the property, unless he can show that the money to his son was a “gift” and in no way related to subsequent house purchase. I wonder whether this tenancy is actually enforceable – just a thought.


    All of the last few posts are making perfectly good points … if Laura was about to go to Tribunal. Her problem is that the Tribunal has already made its decision and she now needs to persuade it or a Commissioner that there is at least a possibility it went wrong in law.

    The appeal was argued on commerciality and if none of the parties raised any other issues the Tribunal was not required to consider them, unless they were so obvious that it was a legal error for the Tribunal not to investigate those issues on its own initiative.

    The life tenancy matter could be one such issue, as could the Tribunal’s failure to look at Reg 9(1)(l) as CH/1586/2004 appears to require.

    If Laura is going to pursue this case, she needs to apply for leave to appeal to the Commissioners on the grounds that the Tribunal’s failure to look at these issues on its own initiative was an error of law, even though the Council also failed to raise them.

    Laura Moore

    I’ve looked at CH/3586/2005 – if I understand correctly, the issue was that the tenant changed the wording of the tenancy agreement from 6 months to read ‘for the rest of my life’. I can’t find CH/0883/2006 – if someone has a weblink to it and could post it here I would be grateful.

    My customer has a typed tenancy agreement provided and signed by their son, stating ‘this agreement shall continue for the lifetime of the occupier’. The CPAG guide states ‘long tenancy means a tenancy granted for a term of years certain exceeding twenty one years..’ Is it reasonable to assume that this equates to their lifetime?

    Having refused HB under one regulation (reg 9), can I make a new determination to refuse HB under a different regulation (reg 12), without it being necessary to involve a Commissioner decision?

    Kevin D


    If you’re happy to memo your e-mail addy to me via pm, I’ll be happy to mail you CH/0883/2006 (this CD will be on the site eventually).

    [quote:897125665a]Laura wrote:

    ‘this agreement shall continue for the lifetime of the occupier’. The CPAG guide states ‘long tenancy means a tenancy granted for a term of years certain exceeding twenty one years..’ Is it reasonable to assume that this equates to their lifetime?[/quote:897125665a]
    Trouble is, as will be seen from CH/0883/2006, the agreement MUST satisfy the requirement and the Land & Property Act in order to be of effect as a “life tenancy”.

    [quote:897125665a]Laura wrote:

    Having refused HB under one regulation (reg 9), can I make a new determination to refuse HB under a different regulation (reg 12), without it being necessary to involve a Commissioner decision?[/quote:897125665a]
    As Peter Barker noted, you have already been to Tribunal and your only course of action is to argue at Cmmrs, quoting the CD Peter cited, that the Tribunal was under a DUTY to consider other matters – particularly HBR 9(1)(l).

    Personally, I thought the finding in CH/1586/2004 was a bit surprising (re a Tribunal having to consider HBR 9(1)(l) as a matter of course). But, I’m not a lawyer and the Cmmr’s view was that the construction of HBR 9(1) was such that sub para “l”(L) MUST always be considered if any other part of HBR 9 is relied on.



    Laura, as I see it you cannot do that. If you look at paragraphs 3 and 4 of Schedule 7 to the 2000 Act, you will see that a decision can be revised by the Council that made it, whereas a superseding decision can be made on either a decision by the Council or a decision by a Tribunal or Commissioner. I read this to mean that you cannot revise a Tribunal decision, which is what you are seeking to do here.

    Nor can you make a fresh first-instance decision on the original claim – once you made your first decision, the claim ceased to exist and all that remains is the award resulting from the Tribunal decision. So any further changes at this stage would have to be by way of a supersession of the Tribunal’s decision or an appeal to the Commissioner on a point of law.

    You can supersede a Tribunal decision from the original date if it was based on a mistake about the facts, or it was ignorant of the facts. But that doesn’t seem to be the case here – no new information has come to light since the Tribunal made its decision. Your problem is that the facts of the case would, with hindsight, have supported a different reason for refusing HB from the one that you relied on at Tribunal. But it’s too late to change your mind now UNLESS you can show that the Tribunal ignored a Reg 9/Reg 12 issue that was so obvious it was legally wrong not to widen the terms of the appeal.

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