DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This appeal, brought with leave of a tribunal chairman, succeeds.  The decision of the Appeal Tribunal on 18 12 01 erred in concentrating on circumstances prevailing at the date of its hearing, rather than at the date of the decision appealed against, and I set its decision aside.  I remit the appeal to a different tribunal for rehearing in accordance with the indications given below.

2.	The case concerns the former regulation 61(3) of the Housing Benefit Regulations.  Until 2 7 01 a local authority might allow an extra amount of benefit above the regulation 11 permitted maximum as set by a rent officer, up to the limit of what would otherwise be the tenant’s “reckonable rent”, if he would otherwise suffer “exceptional hardship”.  From 2 7 01 such payments became discretionary housing payments and are no longer dealt with by the tribunal adjudication system.

3.	The appellant’s case is that because of his health problems, which render him incapable of work, and the support he derives from neighbours, he would suffer exceptional hardship if he had to move out of his accommodation.  On previous claims his rent of £65 a week had been covered, the rent officer having accepted this rent as not significantly high; but on the present claim (and, it seems, on the next one) the rent officer had decided that £45 was the appropriate amount.  The appellant fell into arrears and his landlord threatened possession proceedings.  His solicitors sought unsuccessfully to invoke regulation 61(3).  An appeal to the tribunal failed.

4.	For the avoidance of doubt, I make clear to both parties, who seem from their submissions to me not fully to appreciate the point, that any tribunal hearing is a rehearing from scratch; a tribunal is not exercising a judicial review function, and is entitled to reach a different conclusion from the initial decision maker on any point within its jurisdiction, if it sees fit.   In the present case, the rent officer’s determination that the rent for the premises should be limited to £45 was not within the tribunal’s jurisdiction (paragraph 6(2)(c) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000).  Nor was any question of “legitimate expectation” which might have been argued to arise as a result of the earlier more favourable determination.  I asked what had happened on the earlier claim out of curiosity, and a desire to learn how the nuts and bolts of the housing benefit system work.  I am not instantly familiar with the Court of Appeal decision to which Mr Copson refers; he will be free, if he thinks fit, to make any arguments based on it to the rehearing tribunal; but if the case proceeded to the Court of Appeal following a judicial review application it is unlikely to be relevant to what the tribunal will have to do.  It would be helpful if, before putting forward any such arguments at the rehearing, he submitted them to the Appeals Service and to Mr Mason (for the local authority) in advance.    

5.	As I said in granting leave to appeal, the tribunal’s handling of the exceptional hardship point by reference to what attention is reasonably required was not, it seems to me, of itself an error of law.  This is the main criterion for disability living allowance (except the “cooking a main meal” test), and it is one with which tribunals are familiar.  Although DLA is a different benefit, it is not an erroneous test to bear in mind; but it is not exclusively determinative.  If in the present case the rehearing tribunal were to conclude that the loss of his immediate support systems as a result of having to move out, itself the result of the cut in housing benefit, would be exceptionally hard for the appellant, this could be taken into account even if the circumstances did not justify a DLA award.  

6.	Both parties correctly say that it is the date of the decision under appeal that must be looked at; but later evidence may properly be taken into consideration if it is fairly referable to that date.  So the GP’s more recent letter can be brought into consideration if it is accepted as relating back to circumstances at that date, as can the witness’s evidence if it satisfies the same criterion.

7.	Both parties agree that the question of whether suitable alternative accommodation was available was relevant to exceptional hardship.  The considerations to be borne in mind are set out by the Master of the Rolls in R v East Devon DC HBRB, ex parte Gibson (1993) HLR 487 at 494.  He pointed out that local authorities and Review Boards (or tribunals) cannot be expected to act as accommodation agencies, identifying specific properties into which claimants can move.  He said “It is, in my judgment, quite sufficient if an active market is shown to exist in houses of the appropriate type in an appropriate place at the level to which rent is restricted.  There must, however, be evidence at least of that in a case falling within [the then equivalent, pre-January 1996, provision]; otherwise the recipient, if he had to move, would have nowhere to go.  It is, however, sufficient…to point to a range of properties…which is available without specific identification of particular dwelling-houses”.  

8.	This does suggest that the accommodation put forward as suitable should be at the level of the rent as restricted, and I was exercised by the fact that the alternatives shown in this case were all at rents higher than the rent of £45 a fixed by the rent officer.  Mr Mason for the local authority appears to argue that it may not be known what a rent officer would consider the proper maximum rent for such accommodation.  This may well be so, and  I am not sure that I quite understand the points made by the appellant’s solicitor in response.  However, this point, like most of those made by the solicitor at page 35 concerning rehousing in council as opposed to privately-rented accommodation seem to me to come rather close to the “accommodation agency” model criticised by the Master of the Rolls.  Subject to any further submissions that may be made to it, I recommend the tribunal not to concern itself overmuch with these minutiae.        

8.	Neither party has observed my direction to comment on whether the appellant can be expected to use his disability premium to fund, or help fund, the rent shortfall. In R on the application of Turner v Brent LBC HHRB, 6 3 01 it was held that an award of DLA care component could be used to fund a shortfall.  If this is the case with a benefit that at least nominally is awarded to pay for personal care, I see no reason why the disability premium should not be a factor to be taken into account, given that that premium is awarded as a rough and ready recognition that disability may give rise to extra costs.  I direct the rehearing tribunal so to take it into account, unless convinced by further submissions that it would be wrong to do so.  		

9.	The rehearing tribunal will consider and investigate the appeal afresh, as at the date of the decision appealed against, and decide whether the appellant should be awarded extra housing benefit under the then regulation 61(3) of the Housing Benefit (General) Regulations, having regard to the considerations I have set out above.  The test is “exceptional hardship”: this seems to me to require rather more than that it should be “reasonable”, or not be “unreasonable”, for the appellant to stay where he is, this being the terminology used by the representative in his submissions. Either party may make fresh submissions, and further evidence may be adduced if it is fairly referable to the date in question.

10.	If the tribunal concludes that the appellant would suffer exceptional hardship by being required to move, and does not hold that it would be reasonable for him to subsidise the difference between the rent officer-fixed rent and the contractual rent out of his disability premium, the question arises of how much of an increase should be paid.  This seems to be to be very much a matter for the authority rather than for the tribunal – “such greater amount as it considers appropriate in the particular circumstances of the case”, having regard to the matters in regulation 63(3A).  It involves, according to the CPAG Guide with commentary by Findlay and others, 14th edition, page 399, consideration not only of the figures in the particular case but of the very small percentage of total housing benefit expenditure which is (or presumably was during the relevant year) permitted to be spent on exceptional circumstance additions – for which no direct central government subsidy is or was payable.   I really do not see how the tribunal can deal with this.

				(signed on original)	Christine Fellner
								Commissioner

								26 July 2002