Law Report: Adult child was 'non-dependant': Regina v Derbyshire Dales District Council, ex parte Cooper. Regina v Chesterfield Borough Council, ex parte Fullwood. Queen's Bench Division (Mr Justice Henry), 29 July 1992

The adult child of a housing benefit claimant, who lived with the claimant but who was not jointly responsible for renting the accommodation, did not 'jointly occupy the claimant's dwelling' within the meaning of regulation 3(2)(d) of the Housing Benefit (General) Regulations 1987 (SI 1971) so as to except him from the definition of 'non-dependant' in regulation 3(1).

Mr Justice Henry dismissed applications by two housing claimants, Gerald Cooper and Arthur Leslie Fullwood, for judicial review of decisions by two local authority housing benefit review boards, that the claimants' adult sons were 'non-dependants' within the meaning of the 1987 Regulations. As a result, the claimants' housing benefit was reduced by the appropriate 'non- dependant deduction' under regulation 63.

Robin Allen (Phillips, Mansfield) for Cooper; Lord Campbell of Alloway QC and Nan Alban-Lloyd (Elliott Mather Smith, Chesterfield) for Fullwood; Richard Drabble (Sharpe Pritchard, for Eddowes Waldron & Cash, Derby) for Derbyshire Dales; John Howell (Sharpe Pritchard, for Town Clerk and Chief Executive) for Chesterfield and (Treasury Solicitor) for the DSS.

MR JUSTICE HENRY said that by regulation 3(1) 'non-dependent' meant 'any person, except someone to whom paragraph (2) applies, who normally resides with a claimant'.

Under paragraph (4) 'a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area . . .'

So as a general rule, any person who shared living accommodation with a claimant would be a non- dependant, unless they fell into one of the exceptions in paragraph (2).

It was agreed that an adult son did not constitute a 'member of the claimant' family' under paragraph (2)(a) because he was not a child for whom the claimant was responsible. But it was said he fell within paragraph 2(d), which 'subject to paragraph (3)' applied to 'a person who jointly occupies the claimant's dwelling'.

Paragraph (3) took out of the 'joint occupation' category any normal resident who was 'a boarder or a person to whom sub- paragraphs (a) to (c) of regulation 7' (an anti-avoidance provision) applied.

An adult son was therefore to be treated no differently from any other close relative, who did not come within the regulation 3(2) exceptions, and was a 'non-dependant', unless he fell within sub-paragraph (d).

The essential problem was the distinction between someone who 'normally resides with the claimant' (generally speaking a non- dependant) and someone who 'jointly occupies the claimant's dwelling'.

The meaning of 'joint occupation' when used legally depended on its context. But here it was plainly used in a landlord and tenant context: two persons who jointly held as tenants under a joint tenancy, with joint liability for the rent.

Thus if adult children were joint tenants, they were covered by the paragraph 2(d) exception, provided they were not disqualified by the anti-avoidance provisions of regulation 7. But if they were not joint tenants, they they were 'non-dependants' and were expected, like any other person for whose housing the claimant was not responsible, to make a contribution towards their accommodation costs.