Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.CE/2956/2012

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge Mark

 

Decision:   The appeal is allowed.  I set aside the decision of the First-tier Tribunal dated 3 July 2012 and the decision of the decision maker dated 31 January 2012, and I substitute my own decision that the claimant was entitled to the Severe Disability Premium on the basis that he was normally living at the addresses in Nottingham supplied by him between 12 September 2011 and June 2012.  I remit to the Secretary of State the question of the amount of that entitlement and the date when entitlement ceased because the claimant ceased normally to live alone.

 

REASONS FOR DECISION

 

1.     This is a supported appeal.  The claimant has been in receipt of ESA since February 2011.  He was a student at Nottingham University but suffered mental health problems and returned home to Cheshire to live with his parents during the academic year 2010-2011.  Although still unwell, he returned to university in September 2012, living in him own separately rented room in halls of residence. 

 

2.     The decision maker rejected his claim for Severe Disability Premium on the ground that his permanent address was his home address in Cheshire as, the decision maker found, he spent at least 20 weeks a year there full time and at weekends and was not registered with a dentist at his term time address.  He had a bedroom available for him at the family home.

 

3.     The evidence before the tribunal was that the claimant had rented a room in Nottingham initially for 324 days from 12 September 2011 to 31 July 2012, but had had to leave it in February 2012 and rented a different room from a different landlord for the period from 10 February to 16 June 2012.

 

4.     The evidence of his mother was that the claimant rarely came home to Cheshire during the period in question.  He had a GP in Nottingham and also used the mental health services there.  She provided the name and address of a registered psychiatric nurse in Nottingham whom he saw.  The claimant himself stated that he had been residing in Nottingham since 12 September 2011 and was returning to the family home on 16 June 2012.  He confirmed the information about the psychiatric nurse whom he saw.  He very rarely went back to the family home in this period and did not spend all his holidays there, nor did he spend at least 20 weeks there.  All the clothes he needed were in Nottingham.  The family home was being used as his postal address for this appeal as his mother was acting for him and he was trying to manage his stress levels.

 

5.     The appeal was heard as a paper hearing at the claimant’s request.  The tribunal dismissed the appeal.  The statement of reasons recites the findings of the decision maker, and continued at paragraphs 6:

 

“The Tribunal considered the matter after reading all of the documentation within the Schedule and concluded that his permanent address would be that of his parents … It is not an uncommon situation for students to live in Halls of Residence during term time and thereafter to return to live with their parents both before the commencement of the course and upon its termination and in the meantime returning for Christmas and Easter vacations and occasional weekends.  Although [the claimant] stated that he had started a week early that was his choice and was not a requirement and did not take away the fact that he had accommodation available [in the family home].”

 

6.     The tribunal went on to conclude that the claimant had two addresses one of which, the family home, was permanent, and was used for his correspondence in relation to this claim and in relation to his earlier claim for DLA.  The other address, in Nottingham, was a temporary address.

 

7.     The problem with these reasons is that they do not address the test for severe disability premium set out in paragraph 6 of Schedule 4 to the Employment and Support Allowance Regulations 2008.  The relevant part of this test is that “the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing”.  The question therefore for the tribunal was whether the claimant was normally residing with his parents (or they with him) during the period for which he was claiming the premium.  The question which the tribunal asked itself as to the claimant’s permanent residence was the wrong one.  So too, it was wrong to focus on the supposed norm of a student going home at weekends and for vacations.  The question was what this student did and where he was living in the period in question.  It was also wrong to disregard the fact that the claimant went up to university a week early on the basis that it was his choice,  It is indeed the claimant’s choice where he lives and if he chooses to start to live in Nottingham a week before term begins, that does not mean that he is to be treated as living somewhere else.

 

8.     “Resides with” is to be given its ordinary meaning, that the claimant and some other person are living in the same residence or dwelling (Chief Adjudication Officer v Bate, R(IS) 12/96).  The question of normal residence is a practical one to be determined in the light of common sense (CIS/14850/1996). Of course, if the absence from the permanent home is a short one, for example, because the claimant is on holiday or is undergoing treatment away from home for say a month, as a matter of common sense he still would reside at his permanent residence.  But if he has to go for 9 months to another place and live there, then as a matter of common sense he is not residing during that period at his permanent address.  Nor is he residing there because, for convenience, it is used as a postal address for benefit claims being pursued on his behalf by his mother.

 

9.     As the decision of the tribunal was in error of law, I set it aside.  Given that the decision was reached at a paper hearing, I am in as good a position as the tribunal to reach a decision on the matter and I consider it appropriate to substitute my own decision.

 

10. I accept the evidence of the claimant and his mother that he rarely came home during the period in question and did not spend all his holidays there.  I consider that as a matter of common sense, from the time he went up to Nottingham in September 2011 he was not normally living with his parents in that, all being well, he intended to go on living by himself in Nottingham until the end of the academic year, only occasionally returning home.  The 20 weeks posited by the decision maker included about 13 weeks in the long vacation which, except to the limited extent that the claimant was in Nottingham at the end of the 2011 long vacation and the start of the 2012 long vacation, is not part of the time covered by this decision.  It also presupposed that he would be at home most of the other vacations and some weekends to an extent not justified by the evidence.

 

11. The representative of the Secretary of State accepts that I should conclude that for the period the claimant was living in Nottingham he was entitled to an award of severe disability premium.  I agree and I so conclude.  That period, for the avoidance of doubt, would include any short periods when he was not there, for example because he was spending Christmas or Easter at the family home, as this would not affect whom he was normally living with in this period.  There appears to be some uncertainty in the evidence whether the claimant would return to the family home to live on 9 June or 16 June.  It will be for the Secretary of State to determine when that in fact occurred.

 

 

(signed) Michael Mark

Judge of the Upper Tribunal

 

4 April 2013