Please can anyone suggest any arguments or caselaw? Client has lived for 11 years with a man to whom she has always paid rent. She is now also his carer. She won an IS cohabitation appeal in '98: decision notice describes her as a 'paying lodger'. BUT her landlord has been claiming 2nd Adult Rebate on his C Tax and one of the reasons for refusal of her benefit is that he has stated on his CTB claim forms that she is not paying rent on a commercial basis. How should she go about appealing?

Some of the best decisions re commerciality I know are R(IS)11/98 and CH1097/2004.

The burden of proof is on the council to show that the rent is not paid on a commercial basis, but in view of the statement from the lanldord that the rent is not paid on a commercial basis, I think it would be useful to get a statement from him explaining what he meant when he stated that on his CTB form....he might simply have meant that he had not entered into a formal contract.

You might also find CIB1442/1996 useful in that the Commissioner said at para 15:
". I do not think that in all cases the tribunal should regard the scope of their enquiries as circumscribed by the boxes claimants may or may not have ticked at an earlier stage on the long and very complicated forms they are now required to fill out. "

There's a summary of CH/1097/2004 in the briefcase area of rightsnet, together with a link to the full decision.

There is a massive difference between HB & CTB in these cases....

CTB (2AR) may be quite legitimately refused as per S. 131 (6) (a) of the SSCBA '92 The condition being; "no other resident of the dwelling is liable to pay rent to the person concerned in respect of the dwelling", (or if there is they are excluded from eligibility from 2AR)...

Otherwise it would appear that the HB section are relying in HB regs 6 & 7, but with out knowing the sub sections of reg 7 (eg 7 (1) (a) etc), it is almost impossible to answer the question without posting a million lines of post as a reply...

However, as an introduction see Commissioners decisions R(H) 1/03 & R(H)3/03 (both of which are available from www.osscsc.gov.uk , and I am sure that are discussed in the discussion forums and have commentary available elsewhere on rightsnet)...