Any thoughts on the following? Client’s son and wife, owner occupiers, rent out their own home to relatives and temporarily move in with client for one month before going to stay with friends in Turkey for three months with a view to settling there permanently. Within that one-month they go and stay with their daughter for ten days in another part of the country. Client loses sole occupancy discount for one month and gets hit with NDD. Has appealed.

I am seeking to argue that the mother’s house was not their sole or main residence. It has been put to me that if they were precluded from returning to their own home because of the tenancy they created then the mother’s house had to be the sole or main residency as their own home ceased to be so by virtue of the tenancy granted to another..

I’m not convinced by that. First, just because they might not have had immediate rights of occupation to their own home (with or without possession proceedings – and I’m yet to see the terms of the agreement) that does not necessarily mean that that home did not continue to be their sole or main residence. And, second, just because a person has no other sole or main residence it does not follow that a place he is staying at temporarily automatically becomes his sole or main residence by virtue of that fact. Any thoughts and case law (something is tugging at my memory) would be much appreciated.

And - residence is not to be confused with occupancy.

Thu 05-Mar-09 12:58 PM by stainsby

CSIS/100/1993, CIS/14850/1996, and CH/3935/2007 (where incidentally I represented), all aknowledge that a non dep is somemone who "normally resides" with the clainant, and that has at least connotations of permanence.

It is of course possible for a person with no address other then the claimants to be not "normally residing" anywhere

Thanks for that.

"It is of course possible for a person with no address other then the claimants to be not "normally residing" anywhere".

Thats the bit thats been tugging at the back of my mind. I'm sure I have read case law on this. Anyone know?

Thu 05-Mar-09 04:07 PM by stainsby

Paras 20- 21 of CH/3935/2007

".....Although there was nowhere for the daughter to live other than with her mother, that did not mean that she was normally living with her.

21. I can find nothing wrong in law with the tribunal’s analysis. Nor can I find anything wrong with it in fact. At that time, the daughter’s future was still uncertain. As far as the claimant and her daughter were concerned, the arrangement was temporary, provisional and, so far as the suitability of the accommodation was concerned, far from satisfactory. The daughter had no other accommodation, but that might change. If she were able to find employment or even to claim an appropriate package of benefits, she might be able to find her own accommodation. In view of the nature of the accommodation that mother and daughter were sharing, the local authority might have been able to find somewhere for the daughter to live. In short, it was too soon for it to be said that the daughter normally resided there. The tribunal was right in fact and law to revise the decision of 6 May by removing the non-dependant deduction. "

Although the Commissioner did not put it that way, the Tribunal did point out to the presenting officer at the time that he considered it perfectly feasible for a person not to be normally residing anywhere.

The Commissioner emphasised that the question of whther or note the person normally resides with a claimant is a question of fact, not law, and you cannot infer the facts of one case by direct comparison with another case that was before a Commissioner

I don't know about case law, but I'm having difficulty getting my head round what the LA are doing here.

The logic (is there any?) implies that if A - who lives alone & gets 25% discount & CTB - happens to let a homeless friend B doss down on his sofa for 2 or 3 weeks he loses his 25% & has an NDD. To me, this is ridiculous but perhaps the LA would argue that this reductio ad absurdam is not what they are doing?

Derek 1. That'll do for me. Thanks again.

Derek 2. Succinctly put! Strong arguments will be made. We're not letting this one slide.