Who are persons affected for housing benefit appeals?

The Court of Appeal has handed down a favourable ruling for local authorities responsible for administering housing benefit, writes Morris Hill.

In Wirral Borough Council v Salisbury Independent Living [2012] EWCA Civ 84 the Court of Appeal has determined that regulation 3 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (SI 2001 No. 1002) (“the Regulations”) exhaustively sets out those that are “persons affected” by a decision of a local authority with responsibility for administering housing benefit and only those persons can bring an appeal.

Facts

The appellant local authority appealed against a decision of the Upper Tribunal that the respondent, a not for profit landlord that claimed to provide “exempt accommodation”, was a “person affected” for the purposes of bringing an appeal in its own right against a determination of former tenants’ entitlement to housing benefit.

A number of the respondent’s tenants appealed to the First-tier Tribunal – Social Entitlement Chamber, against the level of awards of housing benefit. However, during the time between the housing benefit applications being made and the appeals being brought a number of tenants had left the landlord’s properties or died and the landlord sought to bring appeals in its own name. The First-tier Tribunal refused to allow the appeals to be brought.

On appeal the Upper Tribunal held that the landlord had a right of appeal independent of the tenants’ right. In doing so it relied upon what it considered to be an unfairness in not allowing the landlord to argue its case in what in reality was a dispute between it and the Council. The Upper Tribunal drew support from the decision of Social Security Commissioner Mesher, as he was, in case CH/3817/2004. In that case, albeit obiter, Mr Commissioner Mesher observed that paragraph 6(3) to Schedule 7 to the Child Support, Pensions and Social Security Act 2000 (“the Act”) provided a right of appeal and that this was not limited by regulation 3 of the Regulations, which simply provided for those that are to be treated as “persons affected”.

In giving judgment Hughes LJ, with whom Kay and Lewison LJJ agreed, dismissed this finding and held that the ordinary meaning of the legislation was that the Act, in providing a right of appeal to “persons affected”, anticipates that the term would be defined in the Regulations. In applying the proposition that when a legislative provision sets out who is within the meaning of an expression it ordinarily means no-one else is, the Regulations provide an exhaustive list of who can appeal against a local authority’s determination and in what circumstances.

Discussion

The judgement of the Court of Appeal will come of great relief to all local authorities tasked with administering housing benefit. If the decision of the Upper Tribunal had been upheld the impact on both local authorities and the Tribunal system would have been dramatic in terms of a considerable increase in the number of appeals brought. The Upper Tribunal’s decision had been taken by some as giving only landlords of ‘supported living’ accommodation the right of appeal. However, this was never clear and the respondent sought to argue its case before the Court of Appeal on the basis that all landlords have a right of appeal against the level of housing benefit awards. However, the Court of Appeal recognised the reality of reading the primary and secondary legislation together and that importantly housing benefit is a benefit for occupiers of properties, not for their landlords.

Morris Hill is an associate at Weightmans. He can be contacted on 0151 242 7990 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..