Client refused HB under HB (Gen) Regs 1987 Regs 7(1)(b) as LA consider he resides in the same dwelling as his parents. Definition of "dwelling" being that given in Social Security Contributions and Benfits Act 1992 S137(1)
Parents have large house and operated it as a commercial B&B son is schizophrenic. Extended garage and existing rooms above garage altered to provide totally self contained "granny flat" for son and wife. Lounge and kitchen downstairs 2 bedrooms and bathroom upstairs. Is seperately banded for CTax purposes and full CTB in payment. But LA consider that son and parents reside in the same "dwelling", so HB refused.
Ultilities are shared as is phone line. Son has own conents insurance but parents insure bricks and mortar as all one building.
Case is at Commisioner and Commissioner has granted LTA, just concerned in case in looking at defintion of "dwelling" we end up establishing "bad" precedent.
Need urgent repsone to LA submission for OSSC. Any ideas or comments appreciated.

Have a look at Uratemp Ventures v Collins(2001)(House of Lords) for a definition of dwelling which is about as authoratative as you can get.

As long as the agreement is commercial enough as not to be contrived, it would be extremely difficult to argue in the light of the above decision that any tenant in your client's situation could be said to share his dwelling with anyone, except, of course, his wife.

Dear Nevip,

Thanks for your info on this. The case is now back from Commissioners and was successful. I was half expecting the local authority to refuse to pay using the "contrived tenancy" arguement as they really do not believe that they are wrong. However the claimant has informed me today that all the arrears were paid yesterday.

Thanks again.

Dparr

Out of interest, have you any idea of under what terms planning permission for the granny annex was granted? (see my recent posting about the interraction between planning & benefit law)- just wondered if there were any similarites with your case (my case is driving me bonkers...)

Could you let me know what the ref no. for that decision was as i have a similar case at the moment.

Cheers
Steve.

My usual caution about relying on Uratemps....but, first, some info to (hopefully) help.....

If the accommodation is self-contained as described in this case, then the LA will simply lose upon Appeal - irrespective of Uratemps. The LAs understanding of the definition of "dwelling" given by s.137 appears to be somewhat lacking. Worse for the LA, they appear to have failed to consider HBR 3(4) - this makes it clear that, in your case, the LA have no basis for treating the clmt as residing with the L/L. The separate banding for CTAX purposes will also be helpful.

Any appeal should (and can) be kept very simple: The accommodation occupied by the claimant is self-contained. In any case, the clmt does not reside with the L/L as provided by HBR 3(4).

End of appeal.

If the LA try to shift ground by introducing other matters (e.g. non-commercial / contrived etc), simply maintain your grounds of appeal on the basis of the decision as made by the LA. Don't get involved in an exchange of correspondence with the LA - simply refer the LA to your appeal letter and reiterate that the grounds of appeal are as stated in the appeal.

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Right, Uratemps. By all means use it with your appeal - it won't harm your case based on what you have said. However, in my opinion (definitely a minority view on this issue), Uratemps has very little effect on the issue of "dwelling" for HB purposes. Sooner or later, Uratemps will be an issue that will be properly argued out at Commissioners.

In CH/3656/2004, Cmmr Fellner considered the suggestion of a "tenancy" for exclusive use of one room. The clmt lost - comfortably. However, it still doesn't quite cover all of the ground which Uratemps may (or may not) affect.

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Regards