I think “occupied as his home” is one of those conceptes where the words “fact and degree” will be the crux of the argument.
For what its worth, the “overnight stay” that the DWP guidance suggests is probably lifted from an old Suplementary benefit decision R(SB)7/86. The Tribunal of Commissioners held at paragraph 5
“5. It is well established under the general law that a person may properly be said to OCCUPYa dwelling house etc without actually physically residing therein. But the word “occupied” is only part of the definition of “the home” in regulation 2(l). That definition also requires that the accommodation must be “normal/y occupied. . . as [the claimant’s] home”. Those additional elements of the definition were considered by the learned Commissioner in the decision on Commissioner’s Files: CSB 292/1983 and CSB 399/1983 (unreported) where at paragraph 7 the learned Commissioner stated:—
“I was not referred . . . to any authorities on the meaning of
‘occupied . . . as their home’, but I have since the hearing read one or
two cases under the Rent Acts, in which the question whether a person
is occupying premises at his home (not by way of interpretation of the
provisions of any enactment) has been considered. In Herbert v. Byrne
[1964 11 W.L.R. 519] a person who had acquired the end of a long lease
went and slept in the premises at night for about a month while continuing
in other respects to live with his family in other premises. It was
his intention to move the whole family into the new premises when
ready. The question as viewed by the Court was whether at the end of
the 4 week period the person concerned was occupying the new
premises as his home. It was held that he was. I think that the view was
taken that he satisfied the ‘as his home’ part of the matter by reason
of the fact that he intended shortly to make it his home, but that it was
only on account of his sleeping there that he satisfied the ‘occupying’
part of the matter. At all events the Court seemingly approved the
earlier decision in Elliott v, Camus referred to in 66 T.L.R. (Part 2) at
page 375, where it concerned a clergyman who, when about to retire,
acquired a lease and put some furniture into the premises in order that
they might be ready when he wanted to move into them as his home,
and he was not regarded as occupying the premises by putting [in] the
furniture. If I apply these 2 decisions I should hold that the new
premises acquired by the claimant [and a friend] to be their home was
their home in the ordinary meaning of the term before they moved in,
but they were not then occupying them as their home in the terms of
the definition above cited. ”
We approve the learned Commissioner’s ruling on that point and indeed similar rulings by Commissioners on Commissioner’s Files: CSB 84/85 and CSB 380/85.”
