Hello...

I have a question on whether a person can be classed as an owner of a property...

The person claiming benefit pays approx half the property’s purchase price, (other half being paid by the benefit claimant’s son), joint ownership not registered on land reg. Only Son registered as sole owner. Benefit claimant is charged rent for the first year, (but it was never paid), and claim for HB made but LA treated as a claim for CTB only, and CTB paid.

On review, benefit claimant again states rental; being charged, and provides tenancy agreement. Landlord states non-payment of rent will result in eviction of the tenant. The LA decides that tenancy contrived, non-commercial etc. However, on revision, LA also decide that claimant is an owner as has beneficial (equitable) interest in property, and/or a constructive trust has been created and also decide the benefit claimant is not entitled on HB reg 10 (12) (c) grounds as he is an owner.

However, S 1.3 of the LPA 1925 states that non-registered property is an equitable interest, but that law does not apply in Scotland, and I can not find an equlivant in statute (or case law), to confirm that an equitable interest in recognised in Scotland. I know nothing of constructive trusts, in Scotland and do not even know if Scottish law actually applies.

I am aware of R(SB) 1/90 which confirms that the social security system is to be interpreted and applied uniformly throughout the UK regardless of the national jurisdiction in which that law is being considered, (e.g. English v Scottish law). However, I have a case involving a HB claimant where the claimant is said to be the former owner of a property and therefore nil ent to HB (REG 7 (1) (h)).

However, the definition of owner in HB reg 2 is different in England than in Scotland, because apparently (and this was news to me), the LPA does not apply north of the border. In addition, it is possible (it is as yet an unknown), that the benefit claimant might have transferred his interest via a constructive trust, which would also nil him (HB reg 7 (1) (e)).

So my question is this... How can a person, on questions arising from the same regulations (HB reg 7), be treated differently both north and south of the border, given R(SB) 1/90 on identically worded provisions in the legislation, because the defination of an owner, is different, (or is it???) and because some trust law is (apparently) different in Scotland (or is it???), even though the regs are identical?

And if the above is correct, how can that reconcile with R(SB) 1/90??? Please help!!!

I think you may have overstated the signifance of R(SB)1/90. As I read it the Tribunal's observations were made in particular in the context of what the significance of decisions of Northern Ireland decisions had in English cases.

The defintion of an "owner" in Scotland is:

"...the proprietor under udal tenureor the proprietor of the dominion utile on the tenant’s or the lessee’s interest in a long tenancy, a kindly tenancy, a lease registered or registerable under the Registration of leases (Scotland) Act 1957(c) or the Land Registration (Scotland) Act 1979(d) or a tenant-at-will as defined in section 20(8) of that Act of 1979;"

The definition is by no means identical to the English defintion which is:

"the person who, otherwise than as a mortgagee in possession, is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners."

Even where the wording of the Regulation is identical both North and South of the border, the same primary facts may not always give rise to the same secondary facts because the general law may be different. For an illustration, have a look at the approach taken by another Tribunal of Commissioners in R(IS)17/94. In that case the result was not dissimilar to that under Enlgish law in CIS/195/1991, but it was fortuitous and the analyses took different routes

Have the LA actually used the phrase "constructive trust"? If so then it should be pointed out to them that a constructive trust is a remedy used by the courts which is very similar to proprietary estoppel. It is not the mere enacting of arrangements between parties.

This will apply when a party to a joint venture suffers a detriment after a reliance on the other party's action when that other party has acted unconscionably. In such circumstance a court imposes a constructive trust to restore the injured party to a position where s/he was prior to embarking on the joint venture.

I am not aware of the position being any different in Scotland, as it is a common law principle applicable to any country whose legal development has a common law basis (i.e. commonwealth countries such as Australia, Canada etc).