Terms & Conditions

[Anonymous]

Does a non-dependant deduction apply where the non-dep is in the Army in Iraq ?

He return to his mothers address when back in England.

Thanks. Aidan Gilleece ( Liverpool City Council )

[peterdelamothe]

No deduction applies imo. The Army barracks counts as the “normal home” even on short periods of leave. There is a charge for accommodation incidentally –
see http://www.army.mod.uk/servingsoldier/condofserv/mm/index.html
for Army conditions.

[Mark]

I don’t want to completely disagree with Peter, but caselaw isn’t entirely on his side. There’s a well known Council Tax case (Doncaster BC v Stark & Stark). It held that Mr Stark was still to be treated as having his “sole or main residence” in the home he was away from even though he was serving in the RAF in Germany and the Gulf. This is what it said:

“24. On analysis it is clear that the Tribunal had no regard to the following factors which were identified by Mr Justice Hutchison in the Bradford case as relevant to the issue to be decided here:

(1) Corporal Stark’s security of tenure at the Mexborough house;
(2) the fact that he spent his time there when off duty;
(3) the fact that if he was not employed by the Royal Air Force he would return to that house; and
(4) the fact that the house was his marital home.

25. All these factors, in my judgment, were factors to be taken into account by the Tribunal. Had the Tribunal taken them into account I am satisfied that, in the light of its other findings of fact, it could not properly have allowed Corporal Stark’s appeal but would have been bound to conclude that his sole or main residence was at Mexborough. “

The decision can be found here:

http://www2.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/1997/977.html

Now I accept of course that the facts in this case aren’t the same – but they are similar. And I know too that “sole or main residence” isn’t the same as the HB test of normally occupancy. But if you decide to make a deduction and this ends up in an appeal I’m pretty sure this is a case you would cite.

[gerryg]

I don’t think that the Stark case really has much relevance to the subject of non-dependents.

As Mark quite rightly says the concept of “normally resides with” and “main residence” do not sit directly side by side.

Also in Stark it was husband and wife who were not estranged and, other than Corporal Stark working away from home, their relationship had nothing else unusual about it.

The original post is about a non-dependent. He (or she) does not have security of tenure at the property as they are not a joint tenant or owner. If they were you would be looking at apportioning the rent.

[Mark]

I do agree with that – it was pretty obvious that of the 4 tests in Stark only 2 seem to be satisfied in this case. But since it’s a case involving military personnel abroad it is of interest. Just to be clear though, I would choose the “normally lives elsewhere” option and make no deduction.

[peterdelamothe]

Got to say I do not think that CT case law is of much relevance here.

I would suggest that “although he resides with the claimant, it appears to the appropriate authority that his normal home is elsewhere” is a further tough hurdle to take a deduction. For instance:

a) does the non-dep have to pay for lodgings elsewhere. The answer is yes.

b) does the non-dep have a CHOICE to live at the address. The answer is no; he/she are subject to the Army regs.

Can anyone think of an example where someone is paying rent (or the equivalent) elsewhere, is out of the UK but a deduction is made?

It is therefore perfectly reasonable for the LA not to take a deduction since it would surely “appear” that the home might be elsewhere. That is surely more than sufficient. I would argue that this is the type of issue that a decisionmaker should not necessary have to have too strong an opinion on – it is sufficient for the alternative case to be strong enough.

If I am wrong, got to say it also demonstrates the non-dependant deduction scheme in all of its glory (gory?)- presumably the tenant could face evicton and homelesness whilst their children are facing extreme danger and possible dealth.

[Carol Meredith]

For what it is worth there is no way that I would apply a non-dep deduction in this case.

[Anonymous]

Me neither ❗

[simon]

I would query one thing on this and that is, is the non-dep regular army and in that case his “normal” home would be his barracks, but if he is in the TA and has just been called up then it could still be argued his “normal” home is his mothers? Unless there is some guidance I’ve missed on this, very possible.

[Author]

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