Burton v New Forest District Council

On 2 November 2001, Mr. Stephen Frank Burton (the appellant) made an application under section 130 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act) for housing benefit in relation to his occupation of a property at 12, Carvers Lane, Ringwood in Hampshire (12, Carvers Lane). The application was addressed to the Respondent to this appeal, the New Forest District Council (the district council).

On 20 February 2002, the district council decided that housing benefit was not payable to the appellant. The appellant challenged that decision by way of an appeal to a single member tribunal. On 11 October 2002 the tribunal allowed the appeal and determined that the appellant was entitled to an award of housing benefit. The tribunal, however, gave the district council permission to appeal to a Social Security and Child Support Commissioner, Ms Christine Fellner (the commissioner). On 29 October 2003, the commissioner allowed the district council’s appeal and restored the original decision of 20 February 2002.

However, on 21 January 2004 the commissioner, in her turn, gave the appellant permission to appeal on the ground that the case raised arguable points of law, and designated this court as the appropriate forum for the appeal.

Although the commissioner allowed the appeal from the tribunal and rejected the appellant’s claim on a number of grounds, that which is central to this appeal is her decision that the appellant was the owner of 12, Carvers Lane within the definition of that term contained in regulation 2(1)(a) of the Housing Benefit (General) Regulations 1987, as amended (the regulations) and thus disqualified from receiving housing benefit by virtue of regulation 10(2)(c).

For the appellant, Mr. Graham Platford accepted in argument before us that if, on the facts presented to her, the commissioner’s ruling on this point was correct, then the appeal must fail. I propose, accordingly, to address this point first. There has, we were told, been a subsequent application by the appellant for housing benefit based on different facts, but this was not before us, and I say no more about it.

Pursuant to section 130 of the 1992 Act: -

The relevant provisions for current purposes are contained in three of the regulations: (1) the interpretation regulation, regulation 2(1); (2) regulation 7, which is headed “Circumstances in which a person is to be treated as not liable to make payments in respect of a dwelling”; and (3) regulation 10(2) headed “Rent”.

In regulation 2(1) the word “owner” is defined as follows: -

Regulation 7, where relevant, reads: -

in a case to which the preceding sub-paragraphs do not apply, the appropriate authority is satisfied that the liability was created to take advantage of the housing benefit scheme established under Part VII of (the 1992 Act).

The relevant part of regulation 10(2) provides as follows:

The facts are highly unusual, and unlikely, I think, to be replicated in anything other than a tiny minority of housing benefit cases. The appellant is severely disabled. He suffers from cerebral palsy, and does not have the use of any of his four limbs. He qualified as a barrister in 1972, although he did not practice. He spent some nine years working in the legal department of ICI, and then transferred to being a solicitor. In 1985 he set up as a sole practitioner in London. In July 1997 he went into partnership with another solicitor. This venture was not successful. There is ongoing litigation between the appellant and his former partner, and the appellant’s case is that the destruction of the practice by his former partner has led to the appellant ceasing to have any earned income, the depletion of his savings, and the need to apply for both income support and housing benefit. For the purposes of this appeal, I work on the basis that the appellant qualifies for housing benefit within the criteria laid down by section 130(1)(c)(i) of the 1992 Act.

The appellant also requires full time care. In 1978 he started an organisation called Support and Housing Assistance for Disabled People (SHAD) a registered charity designed to offer facilities for severely disabled people like himself. SHAD recruits volunteers, usually from abroad, who spend up to 12 months as live-in carers for disabled people. The volunteer carers are paid pocket money of £60 per week, and whilst on duty share food and other facilities provided by the disabled person.

The appellant’s evidence to the tribunal was that the substance of his care was provided by SHAD volunteers. The appellant received money from the social services department of Hampshire County Council and the Independent Living Fund for the care that he required, and the appellant paid money to SHAD for the services provided.

In 1988, the appellant formed a relationship with a partner, and in 1989 they purchased a property in Ringwood in Hampshire. The appellant has two children by his partner, both boys (G and T). Following the acquisition of the Ringwood property, the appellant, whose practice was based in London, stayed in his practice premises on the nights he was in London. Unfortunately, the appellant’s relationship with his partner terminated in the Summer of 1997.

By the date of his application for housing benefit in November 2001, the appellant had separated from his partner, and was living at 12, Carvers Lane. The acquisition and consequential ownership of 12 Carvers Lane are at the heart of this appeal. It is right to say that we do not have a number of the relevant documents. We do not, for example, have the transfer from vendor to purchaser, nor do we have a copy of the mortgage deed entered into between the appellant and the Cheltenham and Gloucester Building Society (the building society). We do not have the office copy entries at the Land Registry. It is, however, accepted by the appellant: (1) that on acquisition from the vendor (one Hart), the property was conveyed into his sole name; (2) that he was the sole mortgagor of the property to the building society; and (3) that until 8 April 2002 (that is, until after the current application for housing benefit was made) his name appeared on the title at the Land Registry as sole proprietor with title absolute.

The principal document upon which the appellant relies is a deed dated 17 January 1997, made between the appellant and his mother, Beryl Kathleen Nay (Beryl Nay) and expressed to be “supplemental to a transfer of even date herewith and made between the same parties hereto” (the deed). The phrase “made between the same parties hereto” is inaccurate (see paragraph 21 below). The deed records that Beryl Nay contributed to the purchase of 12, Carvers Lane in the sum of £7809.57 and that the appellant had paid the balance of the purchase price by way of mortgage to the building society. It creates a trust called “The Nay Housing Care Trust (the Nay trust) ” and declares the appellant and Beryl Nay joint tenants in common and trustees for sale of 12 Carvers Lane which they hold as trustees of the Nay trust, the purposes of which are expressed to be as follows:-

The trustees are given the usual powers to sell and to re-invest the proceeds of sale for purposes permitted by the deed. The deed provides specifically in clause 14 that: -

By clause 5(2) the remaindermen under the deed are the appellant’s two children G and T. There is a professional charging clause permitting the appellant to be paid “all usual and reasonable professional and other charges for business” transacted in connection with the Nay trust, and by clause 16 the appellant alone is given the power “to remove any of the trustees for the time being and / or appoint new or additional trustees”. The deed also binds Beryl Nay jointly and severally as a borrower to the mortgage.

Speaking for myself, I am quite prepared to take the deed at face value. For the purpose of this appeal, therefore, I accept that the appellant has no beneficial interest in 12, Carvers Lane and that the effect of the deed on its execution was that he held the legal estate of 12 Carvers Lane on trust for the Nay trust and as a trustee of the Nay trust.

I am also prepared to accept that the subsequent letting of 12 Carvers Lane to third parties prior to the appellant’s occupation of the property was not inconsistent with the terms of the Nay trust, and that there was nothing inconsistent with the terms of the Nay trust in the manner in which mortgage payments were made. What happened was that the tenants paid their rent to the Nay Trust, and the Nay trust paid the building society through the Nay trust’s bank account. The fact that the appellant operated that account as a client account through his practice seems to me neither here nor there. Whilst the appellant remained personally liable to the building society under the mortgage, I work on the basis that is was entirely proper for the Nay trust to let 12 Carvers Lane to tenants and to apply the rents received to the mortgage payments.

On 20 October 2001, following his separation from his partner and after he had taken up occupation of 12 Carvers Lane, the appellant and his mother entered into a further deed, described as a “Memorandum of Trust” (the memorandum) whereby the appellant retired as a trustee of the Nay trust, and his aunt, Mary Nay, replaced him as trustee. Hampshire social services department was identified as the relevant social services department under clause 4 of the deed, and a specific reference was inserted to declare that the trust fund of the Nay trust was to be held upon trust “so that all income thereof after paying the mortgage instalments shall be paid and applied for the trust purposes”. Clauses 6 and 7 of the Memorandum provide: -

The appellant’s evidence to the tribunal was, accordingly, that on 2 November 2001, when he made his application for housing benefit, he was a tenant of the Nay trust, and contractually liable under the tenancy agreement to pay rent to the trust on a commercial basis. It was not, however, until 4 April 2002 that the legal estate in the freehold of 12 Carvers Lane was transferred for no consideration by the appellant to the trustees of the Nay trust. That transfer was then registered at the Land Registry on 8 April 2002.

Once again, for the purposes of this appeal, I take the memorandum at face value. It is, however, important to keep in mind the dates set out in the preceding paragraphs. Notwithstanding the execution of the memorandum on 20 October 2001, the appellant remained on the title at the Land Registry as absolute owner, and the Register was not amended until 8 April 2002, some six months after the execution of the memorandum, and a not materially different length of time after the appellant had made his application for housing benefit.

The decision letter of the district council advanced five reasons for refusing the appellant’s application for housing benefit. On the critical question of ownership, the letter stated: -

The appellant was represented before the Tribunal by Mr. Platford, who also appeared for him before the commissioner. The district council was not represented before the tribunal, although it had made written submissions. On the ownership point, the Tribunal reasoned as follows: -

The commissioner took a different view. She accepted the district council’s argument that, as registered proprietor, the appellant was, under section 20(1) of the Land Registration Act 1925 (LRA 1925) entitled, in the words of regulation 2(1) “to dispose of the fee simple” of 12 Carvers Lane “whether or not with the consent of other joint owners”, and that any agreement between the claimant and the trustees was irrelevant to that express power to dispose. In her view, LRA 1925 section 20(1) envisaged a registered proprietor selling in breach of trust, and that any breach of trust fell to be dealt with by other means. The register was the public face of property ownership. In the instant case, it had not been rectified until 8 April 2002: the rectification did not act retrospectively, and accordingly, at the date the appellant made his application for housing benefit on 2 November 2001 he was the owner of 12 Carvers Lane within regulation 2(1).

Before us, Mr. Platford sought to escape from the words of regulation 2(1) by submitting that although the appellant was “able” to dispose of the fee simple as registered owner pursuant to section 20(1) of LRA 1925, he was not “entitled” to do so within regulation 2(1)(a), since any such disposal to a third party would have been in breach of trust. Mr. Platford cited the dictionary definition of “entitle”, which he took from the 10^th edition of the Concise Oxford Dictionary as meaning, “give a right to”. He said that the appellant had no right, as a trustee, to dispose of the fee simple of 12 Carvers Lane.

Secondly, Mr. Platford argued that the fee simple was an “estate of inheritance”. The appellant, he argued, held the freehold as trustee. A fee simple was something, which could be bequeathed by will. As a trustee, the appellant had no interest in the property of which he could dispose by will.

Thirdly, Mr. Platford sought to persuade us that his definition of “owner” within regulation 2(1)(a) gained support from the amendments to the regulations now contained in regulations 7(1A) and 7(1B). Most of regulation 7(1)(e), he submitted, would be unnecessary if the term “owner” was limited to registered owner. In particular, he argued that “payments by an owner” in regulation 10(2)(c) must mean “payments by a beneficial owner as beneficial owner”.

Mr. Platford sought to make these submissions good in a number of ways. He began with an example in which the tenant of premises let at a market rent was in receipt of housing benefit when the landlord died, having appointed the tenant as his executor and trustee. The tenant would thereby become the legal owner. Regulation 10(2)(c) could not, Mr. Platford submitted, have been intended to disqualify a tenant from receiving housing benefit in these circumstances. That, however, would be the effect, he argued, of the commissioner’s construction of “payments by an owner” in regulation 10(2)(c).

Mr. Platford sought to buttress this argument by submitting that even if the definition of ownership in regulation 2(1) gave the appellant an ability to dispose of the fee simple in the property, by giving, him an ability to give a good receipt for the purchase money for the fee simple as trustee, he was not entitled to dispose of the property save in the circumstances identified within the trust deed. Whilst the consent of other joint owners was not required for a disposal of the fee simple, regulation 2(1) said nothing about the consent of joint beneficiaries or co-trustees. Mr. Platford relied on the Housing Benefit and Council Tax Circular HB/CTB A30/95I, which states that: -

Mr. Platford further submitted that regulation 7 (the relevant terms of which are set out in paragraph 9 of this judgment) clearly distinguished between legal and beneficial ownership and that, in its amended form, it supported his argument. The regulation identified cases in which a person who was making payments in respect of a dwelling was nonetheless to be treated as not being liable to make those payments and was thus excluded from qualifying from housing benefit. One of those circumstances (regulation 7(1)(e)) was where the payee’s liability was to a trust of which the applicant for housing benefit was either a trustee or a beneficiary of the trust to which he was making payments. However, this provision was expressed to be subject to regulation 7(1B) which removed the exclusion from housing benefit in a case where the applicant satisfied the appropriate authority that his liability was not intended to be a means of taking advantage of the housing benefit scheme.

Mr. Platford argued that if an applicant’s liability for rent was to a trust of which he was a trustee, he had an entitlement to the fee simple and should thus be registered as an owner of the property in question. In that case, on the commissioner’s construction of ownership, the applicant would be an owner as defined in regulation 2(1) and regulation 7(1)(e) was unnecessary. It was, however, clear that the purpose of the amendment and the insertion of regulation 7(1)(B) was to prevent abuse and to disqualify claimants who would otherwise qualify. Thus, regulation 7 should be construed as recognising the distinction between beneficial and legal ownership, and so construed it became a useful plug of loopholes and an aid to ensuring that benefit was only paid where it was merited.

The kernel of Mr. Platford’s submission, however, was that “owner” in regulation 2(1) had to be construed as beneficial owner, and that “entitled to dispose of the fee simple” meant having both the right and the power to dispose of the free simple. Accordingly, “payments by an owner” in regulation 10(2)(c) meant “payments by a beneficial owner”.

Despite their skilful presentation, I find myself unpersuaded by any of Mr. Platford’s arguments. In particular, I am unable to accept the dichotomy he attempts to create between the appellant’s entitlement to dispose of a fee simple and his ability to do so. The simple fact of the matter is that section 20(1) of the Land Registration Act 1925 (the provision in force at the date of the application for housing benefit in this case) enabled the person holding the fee simple to convey the ownership of property to a third party, who then took free of any trust relating to the property and binding on the person who was disposing of the property. The relevant words in section 20(1) of the Land Registration Act 1925 (LRA 1925) are: -

It seems to me to follow inexorably from the wording of LRA 1925, section 20(1) that if the appellant had at any point prior to 8 April 2002 conveyed the fee simple of 12 Carvers Lane to a third party, that third party would have become the owner of the property, free of any interest held by the Nay trust. The appellant, of course, would have remained bound to deal with the proceeds of sale in accordance with the terms of the Nay trust. No doubt if the appellant had failed to obtain his mother’s agreement to a sale prior to 28 October 2001 (the date of the memorandum), or if he had disposed of the fee simple after that date and before the rectification of the Register on 8 April 2002 he would have been in breach of trust. But that would not, in my judgment, have affected the validity of his disposal of the property.

In these circumstances, it seems to me quite impossible to construe the term “owner” in regulation 2(1) as meaning, exclusively, a beneficial owner. The position in law, in my judgment, is that, on the facts as I have outlined them, and because his name remained on the title at the Land Registry as sole owner with title absolute, the appellant was, as a matter of law, entitled to dispose of the fee simple at any point up until the date the Register was rectified. On 2 November 2001, accordingly, when he made his application for housing benefit he was, in my judgment, the “owner” of 12 Carvers Lane within the meaning of that term in regulation 2(1) and the payments he was making to the Nay trust were, accordingly, “payments by an owner” within regulation 10(2)(c). That is the short and simple answer to the case.

With all respect to the tribunal, it seems to me, as Holman J pointed out during the course of argument, that whilst the single member identified the definition of owner contained in regulation 2(1) he did not address or analyse its terms. In particular, he did not examine the meaning or effect of the phrase “entitled to dispose of the fee simple”: he contented himself with the observation that registration as legal owner does not mean that the person registered is the beneficial owner of the property. As a general proposition that is no doubt true, but it does not address the question raised by the definition contained within regulation 2(1).

As to Mr. Platford’s arguments under Regulation 7, Mr. Lucie, for the District Council was able to deflate the example set out in paragraph 30 of this judgment by pointing out that if a tenant was appointed an executor of his landlord’s estate in circumstances which would render him an owner within regulation 2(1) and thus deprive him of housing benefit, it would be likely that such a tenant would decline the role, as would, of course, be his right. Mr. Lucie submitted that examples based on extreme factual situations were unlikely to be of assistance in construing the regulations.

As to the other arguments under regulation 7, it by no means follows, in my judgment, that where an applicant for housing benefit is making payments of rent to a trust of which he is a trustee or beneficiary, that applicant would be an “owner” within regulation 1(2): see, on this point, the R v Sheffield Housing Benefits Review Board ex parte Smith (1995) 28 HLR 36 (the Sheffield Housing case) discussed below. Regulation 7(1)(e) seems to me clearly designed to cover the situation where a trustee is not entitled to dispose of the fee simple of a property, and is thus not an owner, but is making payments to the trust for his occupation of the property. In these circumstances, if he is to receive housing benefit, he will need to satisfy the relevant authority under regulation 7(1B) that the liability he has incurred was not intended to be a means of taking advantage of the housing benefit scheme.

Although there is no authority directly on the point, the proposition that the construction of “owner” within regulation 1(2) as not restricted to beneficial ownership is supported by the authorities. We were referred to three. In the first in time, the Sheffield Housing case, Blackburne J, sitting in the Administrative Court dismissed three applications for judicial review of refusals to award housing benefit to members of an organisation called the Jesus Fellowship Community Church which required its members to live together in “community houses” and to participate fully in sharing all living expenses. In each of the three cases, housing benefit was refused for a different reason.

In the first case (Smith) the Housing Benefit Review Board held that each applicant was an owner of the property in which they lived within regulation 2(1) because although none of them was a trustee or a person in whom the fee simple was vested, each was entitled to reside in the property and was a beneficiary of the trust. They were also entitled to participate in surpluses if the trust was wound up and accordingly, in the board’s view had the right to dispose of the dwelling in which they lived. Prior to the hearing, however, it was discovered that the interest of the trust in the relevant dwelling was leasehold, and in these circumstances, it was conceded that the applicants could not be owners within regulation 2(1).

In the other two cases (Harrison and Bodden) the board decided that the applicants’ agreement to pay the elders of the church (with whom they lived) was “other than on a commercial basis” and thus fell foul of what was then regulation 7(1)(a)(ii) (now regulation 7(1)(a)).

In these circumstances, the appropriate course in the light of the changed circumstances in Smith was for the applicants to apply to the housing department of the city council for a review. Thus the judge’s observations in Smith are, as he himself makes clear, plainly obiter. They are, I think, nonetheless, helpful, and in my judgment do not assist the appellant. The judge said: -

In Charles Fairbank v Lambeth Magistrates Court [2002] EWHC 785 (Admin) Mr. Fairbank had been convicted of making a false statement when applying for housing benefit. The statement related to a house in Yorkshire, his ownership of which Mr. Fairbank did not disclose. The house was registered in his name, but he held it as trustee for his elderly father. The district judge found that Mr. Fairbank was the owner of the property within regulation 2(1), and had accordingly committed a criminal offence in failing to disclose the fact. Mr. Fairbank appealed. His conviction was upheld by the Divisional Court of the Queen’s Bench Division.

Giving the leading judgment, Kennedy LJ identified a number of bases upon which the conviction could properly be upheld. Amongst them was the following: -

The third case was a decision of another commissioner, Mr. John Mesher dated 18 July 2003 (CH/1278/2002). The claimant for housing benefit and her husband lived in a house, which had belonged to her mother. Her mother died intestate, and the claimant and one of her two sisters (Mrs. C) took out letters of administration. Having failed to sell the house to a third party, it was agreed between the sisters that the house would be sold to the third sister, Mrs. B. The claimant and Mrs. C duly transferred the property to Mrs. B, who became the legal and beneficial owner. The claimant and her husband then occupied the property as the tenants of Mrs. B. The claimant’s claim for housing benefit was made less than five years after the transfer of the property to Mrs. B.

In deciding whether or not the claimant was caught by the five year rule contained in regulation 7(1)(h), the tribunal had considered that it was the claimant’s beneficial ownership of the property which was relevant. The tribunal took the view that the fact that she was a joint administrator of her mother’s estate and one of the persons who owned the property in that capacity until the sale to Mrs. B was irrelevant. The commissioner disapproved that approach. After discussing both the Sheffield Housing case and Fairbank v Lambeth Magistrates’ Court the commissioner came to the conclusion that, on any view, immediately prior to the transfer of the property to Mrs. B the claimant had a one third share of the legal and beneficial ownership of the property under a joint tenancy, sufficient to bring her within the definition of owner in regulation 2(1).

On the particular facts of this case, I am quite satisfied that the fact that the appellant appeared on the Register on 2 November 2001 as registered owner with title absolute entitled him to dispose of the fee simple, irrespective of the status (or lack of it) conferred upon him by the deed and the memorandum. It follows that, in my judgment, he was the owner of the property within regulation 2(1) at the material time, and that this appeal must, accordingly, be dismissed.

In these circumstances, I do not think it necessary to address the second substantive argument addressed to us by Mr. Platford, which was that, despite his personal liability under the mortgage, the appellant had a genuine liability to the trustees of the Nay trust for the rent he was liable to pay, and that accordingly, he was not caught by section 130(2)(b) of the 1992 Act. I think it only fair to the appellant, however, to say that if and in so far as the commissioner allowed the district council’s appeal from the tribunal on the basis that the arrangements into which the appellant had entered were “devices” or in some way improper, I do not think it was open to her to do so. Of course an appellate body asked to resolve a point of law may overturn findings of fact made by a tribunal charged with finding the facts if the tribunal’s findings are perverse, or if there is no rational basis upon which the tribunal could have made its findings. In the instant case, the commissioner on several occasions reminded herself quite properly that her jurisdiction related only to errors of law. She had not heard any evidence. This did not, however, stop her from describing the Nay trust as set up in 1997 as “a device of some sort” and, for example, from speculating as to what the building society may or may not have been told about the arrangements. In my judgment, as I have said several time during the course of this judgment, the appellant is entitled in this appeal to be judged on the basis that the arrangements he made were both lawful and proper.

It may appear that the outcome of this appeal is harsh on the appellant. He is severely disabled and in receipt of state benefits. He would appear, on the facts, to be a worthy candidate for housing benefit. The function of this court, however, is limited to a construction of the Act of 1992 and regulations, and the question whether or not the appellant was, at the material time and as a matter of law, the owner of 12 Carvers Lane within regulation 2(1). I am in no doubt that he was, and on this basis I would dismiss the appeal.

I agree that this appeal must be dismissed. In order to succeed the appellant has to show that he is not caught as an “owner” by the provisions of regulation 10(2) of the Housing Benefit (General) Regulations 1987. It is clear that “owner” in regulation 10 has the meaning assigned to it in the interpretation regulation, regulation 2(1) of the same regulations. It is defined as meaning “…the person who otherwise than as a mortgagee in possession, is for the time being entitled to dispose of the fee simple, whether or not with the consent of other joint owners”. In my judgment the crucial phrase in that definition is “…for the time being entitled to dispose of the fee simple…”. At the time he made the application for housing benefit the appellant was the registered title-holder of 12 Carvers Lane. As Wall LJ points out the provisions of section 20(1) of the Land Registration Act 1925 enables the registered title-holder to convey the ownership of a property to a third party free from all incumbrances other than any appearing on the register. There is no escape from the fact that at the date on which the appellant applied for housing benefit he was the registered title-holder and was entitled to dispose of the fee simple of 12 Carvers Lane. The fact that he would have been acting as a trustee, whether in breach or not in breach of trust, is for these purposes irrelevant. In my judgment it must follow that, in view of the definition of “owner” in regulation 2(1) in combination with section 20(1) of the Land Registration Act 1925, the appellant was disqualified by regulation 10(2) from receiving housing benefit.

I see no reason to justify the definition of “owner” as meaning a person entitled to dispose of the beneficial ownership of the property. I reject Mr Platford’s submissions on this point. In my judgment there is an obvious reason for the restricted meaning of “owner” in regulation 2(1). Those who have to administer the housing benefit scheme would have an additional burden placed upon them if before deciding whether a person was eligible they had to make enquiries as to what lay behind the title to registered property. By virtue of, what in my view is the correct construction of regulation 2(1), they simply have to examine the register and go no further.

The second principal argument of the appellant concerned the commissioner’s finding that the setting up of the Nay Housing Care Trust was some sort of device. Mr Platford submitted that the tribunal having found that this arrangement was proper and lawful the commissioner was not entitled to reverse that finding of fact. Strictly, as Wall LJ points out, it is unnecessary for us to decide this point. For my part, the commissioner’s finding that the Trust was some sort of device seems to me suspiciously like a finding of fact. She points out that her jurisdiction is only to correct errors of law. But she goes on to say that in respect of findings of fact she can interfere if the Tribunal’s findings are unsupported by evidence, or it ignored relevant evidence, or took into account wholly irrelevant matters. That, no doubt, is an accurate statement of her powers as the appellate body. However, in finding that the setting up of the Trust was some sort of device, the commissioner never spelt out why she regarded the finding by the Tribunal as perverse or irrational. I agree with Wall LJ that the appellant in this appeal is entitled to be judged on the basis that the arrangements he made were both lawful and proper.

For these reasons and the reasons given by Wall LJ in my opinion this appeal should be dismissed.

I agree that this appeal should be dismissed for the reasons given by Wall LJ and Gage LJ.