[2007] UKSSCSC CH_1289_2007 (03 July 2007)

CH/1289/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	This is an appeal by the Claimant, brought with my permission, against a decision of the Manchester Appeal Tribunal made on 21 November 2006. For the reasons set out below that decision was in my judgment erroneous in law. I allow the appeal, set aside the Tribunal’s decision and remit the matter for redetermination by a differently constituted appeal tribunal. 

Introduction
2.	I held an oral hearing of the appeal at which the Claimant was represented by Danny Key, a consultant employed by Support Solutions Ltd, a company which specialises in providing consultancy and training in housing and support, and Bury Metropolitan Borough Council (“the Council”) were represented by Joanne Giblin, their Appeals Team Leader, and by Claire Jenkins, their Benefits Manager. 

3.	The appeal concerns the amount of the Claimant’s entitlement to housing benefit. The issue before the Tribunal was whether the Claimant’s accommodation is “exempt accommodation” within the meaning of reg. 10(6) of the Housing Benefit (General) Amendment Regulations 1995. 

4.	The Claimant occupies a room in a building providing accommodation for the homeless which is owned and managed by Rehab98 Ltd. There are 19 rooms in that building, providing accommodation for a total of 27 licensees. There were also appeals to the Tribunal by a substantial number (and perhaps all) of the other occupants. However, by agreement between the parties it was directed that the Claimant’s appeal would be treated as a test case. A Direction was made which recorded that “it is envisaged that following the final determination of [the Claimant’s] appeal the other appeals will be withdrawn or will lapse following the revision of the decision under appeal.” 

5.	The Tribunal, again by agreement between the parties, determined the appeal without an oral hearing. 

The legislation 
6.	As from 2 January 1996 a new version of regulation 11 of the Housing Benefit (General) Regulations 1987 was enacted, under which the rent eligible for housing benefit is in effect limited to that determined by a rent officer in accordance with specified criteria. However, a saving provision was enacted (in reg. 10(1) of the Housing Benefit (General) Amendment Regulations 1995), as follows:

“………….the eligible rent of a person – 

(a) who …………………………………; or 

(b)  “who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation, 

shall be determined in accordance with regulations 10 and 11 of the [1987 Regulations] as in force on 1 January 1996 ………….”

7.	In effect, therefore, the “old” form of regulation 11 of the 1987 Regulations continues to apply in respect of “exempt accommodation”. 

8.	“Exempt accommodation” was defined in reg. 10(6) of the 1995 Regulations (again as subsequently amended) as including accommodation which is 

“provided by a non-metropolitan county council …… a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision.” 

9.	Under the consolidation of the housing benefit legislation which took effect from 6 March 2006, reg. 11 of 1987 Regulations has become reg. 13 of the Housing Benefit Regulations 2006. Provision for the continued application of “old” reg. 11 in cases of “exempt accommodation” is now in effect contained in the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. The definition of “exempt accommodation”, in the terms set out above, is now in para. 4(10) of Schedule 3 to those Regulations. However, at the dates relevant to this appeal the consolidating legislation had not come into force. 

10.	In cases where the old form of regulation 11 applies the effect, broadly, is that the local authority cannot restrict, by reference to a rent officer’s determination, the amount of rent eligible for housing benefit unless there is suitable accommodation available to the claimant and it is reasonable to expect the claimant to move to it. 

The facts
11.	Rehab98 Ltd is a registered charity which seeks to meet the needs of homeless people, particularly those with substance misuse issues, in Rochdale and Bury. It has two hostels, one (Walker House) in Rochdale and the other (Woolfield House) in Bury. The Claimant occupies a room in Woolfield House pursuant to a licence agreement. As I understand it he has in fact lived there since 1996, with the exception of 3 years when he was in prison. 

12.	Until 20 June 2005 Rehab98 Ltd was in receipt of funding designed to enable it to provide support to the occupants, in respect of both Walker House and Woolfield House, under “Supporting People” contracts with the local authorities. However, on 17 December 2004 the Council gave notice that this contract would be terminated in relation to Woolfield House with effect from 20 June 2005 because the Council was not satisfied that the relevant services were being provided to the requisite standard. 

13.	Until the notice terminating “Supporting People” funding was given the amount payable by the Claimant to Rehab98 Ltd by way of rent was (as I understand it) £70 per week (p.134). Housing benefit was paid at the rate of £56.65 per week, being that contractual rent less the sum of £13.35 per week, which was the amount attributable to the provision of meals. It appears, however, that the figure of £70 per week had been arrived at after an assessment by a rent officer – i.e. that the accommodation was not treated as “exempt accommodation” at that time (pp. 9 and 10). 

14.	However, the termination of the “Supporting People” funding resulted in Rehab98 Ltd needing to examine ways of reducing its expenses and increasing its revenue. Expenses were reduced by some of the employees who had provided support at Woolfield House being made redundant. As regards revenue, by letters to the occupants of Woolfield House dated 16 March 2005 (p.7) Rehab98 Ltd gave notice that with effect from 30 March 2005 the rent would increase to £201.26 per week. Of that, £118.91 was expressed to be “core rent” (including an element for “housing management”), £44.29 was expressed to be for “eligible service charges” and £25 for “ineligible service charges.” 

15.	In correspondence with the Council it was contended on behalf of Rehab98 Ltd that the accommodation provided to each of the occupants was “exempt accommodation” and therefore that the housing benefit payable to them could not be restricted by reference to the determination of a rent officer. As I understand it the practical effect of the contention was that housing benefit should be paid at the rate of £176.84 per week (i.e. the new contractual rent of £201.26 per week less the amount of the “ineligible service charges”). 

16.	However, on 17 September 2005 the Council decided, in respect of each applicant:

(a)	that in respect of the period 30 March 2005 to 3 July 2005 (i.e. down to the date when staff were made redundant as a result of the termination of Supporting People funding) the accommodation provided at Woolfield House would be treated as “exempt accommodation”, but the eligible rent would be restricted to £135 per week per occupant, being the amount payable in respect of Walker House in Rochdale, because that was “suitable alternative accommodation.” 

(b)	that in respect of the period from 4 July 2005 onwards the accommodation at Woolfield House would not be treated as “exempt accommodation” and the rent eligible for housing benefit would be restricted to the sum of £81.65 per week, being the rent officer’s determination of a “claim related rent” of £95, less £13.35 in respect of meals. 

17.	The Claimant and other occupants appealed against these decisions. As I understand it, however, (i) the part of the decision referred to in para. 16(a) above is not disputed and (ii) as to the period from 4 July 2005 onwards it is accepted on behalf of the Claimant that if his accommodation were found to be “exempt accommodation” the eligible rent would properly be restricted to the sum of £135 per week, by application of the reasoning in the part of the decision referred to in paragraph 16(a) above. What is therefore in practice at stake, as regards the period from 4 July 2005 onwards, is the difference between £81.65 and £135 per week. 

18.	The Tribunal, by the decision now under appeal to me, dismissed the Claimant’s appeal. It found that the Claimant’s accommodation was not “exempt accommodation”  because Rehab98 Ltd was not providing care, support or supervision to the Claimant. It concluded that “the amount provided is de minimis, if indeed anything is provided at all in the way of care, support and supervision.” In so stating the Tribunal would appear to have applied broadly the correct test: see my decision in CH/3811/2006, especially at para. 23. 

Analysis and conclusions
19.	The Tribunal summarised the reasons for that finding in 7 bullet points on p.359. Those must of course be read in the light of what is set out earlier in the Statement of Reasons, which amplifies some of the points. In my judgment the Tribunal’s decision was erroneous in law in the following respects. 

20.	First, the Tribunal said that “the charge made by Rehab98 for provision of the support services was minimal”. That was a reference back to the paragraph immediately before the bullet points, in which the Tribunal concluded, by reference to the breakdown of the rent, that at most £2.50 per week was charged in respect of support and supervision. However, the Tribunal did not indicate that it had noted, or say what it made of, the contention which had been made by Mr. Key (p.15) that Rehab98, as a charity, was subsidising the provision of support services. I note that the “housing benefit only” budget for Woolfield House annexed to the business plan showed a sum of £75,879 per annum in respect of support costs (p.47)

21.	Secondly, the Tribunal stated that “after most of the staff were made redundant, there were insufficient staff provided by Rehab98 to provide the Support Services to more than a minimal extent.” However, the Tribunal in my judgment erred in law in stating that as a bald conclusion, without examining in more detail the evidence which had been provided as to the time spent providing support by the three staff who remained (see especially p.50), and as to the fact that “volunteers” from Walker House also worked for a total of 4 hours per week at Woolfield House. The Council had calculated, based on that evidence, that the support which could be provided would amount to an average of 3 hours per week per occupant. It it not in my judgment obvious that support of that order is minimal for this purpose. The Tribunal did not go into this evidence at all. 

22.	Thirdly, the Tribunal stated that “some of the items on the list of Support Services were for the benefit of Rehab98 at least as much as for the benefit of the appellant.” That is no doubt so, but (a) it does not necessarily prevent such items from amounting to “support” and (b) in any event the Tribunal referred only to “some” of the items, without stating which it referred to and without stating why the other items (if provided) did not amount to the provision of “support”. 

23.	Fourthly, the Tribunal stated that “apart from accompanying the licensee to meetings (and there is nothing in the individual plans to suggest that that was actually done) there is nothing on the list of Support Services provided by Rehab 98 which is not done routinely by social landlords who do not purport to be providing care, support or supervision in exempt accommodation.” The list referred to is that at (for example) p.113. That includes items such as “help in managing finances”, “liaison with CPNs, community drugs team, probation and other statutory agencies”, “help in establishing social contacts”, “emotional support and advice.” None of those seem to me to be services which would routinely be provided by a social landlord who was not seeking to go beyond its housing management function. 

24.	Fifthly, the Tribunal stated that “the appellant lists support services which he says he receives, but there is only one specific, and very minor, actual example given.” However, the Tribunal did not sufficiently explain what it meant by this. I think that it was probably referring to the letter signed by the Claimant at p.224, where the Claimant set out details of categories of support with which he was provided, and stated that he was assisted to formulate that letter “as an example”. It is certainly the case (see further below) that the evidence in respect of the support provided to the Claimant seems to have been a standard form list  which was said to apply to all the occupants (see p. 190 onwards). However, if the Tribunal was purporting to find that that specific example was the only element of support which had ever been provided to him, I do not think that it sufficiently justified such a finding. 

25.	Sixthly, the Tribunal stated that the specimen licence agreement contains no obligation on Rehab98 Ltd to provide any care, support or supervision. However, I note that in the “General Terms” the licence agreement states, under the heading “support”: “Upon being accepted into the scheme subsequent to undertaking the prescribed risk assessment, the resident will receive support and supervision as per the requirements of their client records.” 
 
26.	The Tribunal’s decision must therefore be set aside. I have no doubt that, cumulatively, the above shortcomings render the Tribunal’s decision erroneous in law. 

27.	The representatives of the Council indicated to me at the hearing that there may be a general view, at any rate among local authorities, that if there are a number of occupants of a building, with separate tenancies or licences, that building will either be or not be “exempt accommodation” – i.e. that the same result will apply to all the occupants. However, that is not necessarily the case, for two reasons. First, the wording (set out in paragraph 6 above) of reg. 10(1) of the Housing Benefit (General) Amendment Regulations 1995 (now para. 4(1) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006) makes clear that it is the dwelling occupied by the claimant as his home which is exempt (or not exempt) accommodation. If a building contains two or more dwellings, the definition of “exempt accommodation” must be applied in relation to each dwelling, and not in relation to the building as a whole. Secondly, the definition of “exempt accommodation” turns on whether the landlord provides the claimant with care, support or supervision. A claimant’s accommodation will not be exempt if no (or only minimal) care, support or supervision is provided to him by the landlord, however much care, support or supervision may be provided to other tenants of the landlord.  

28.	That does not of course mean that it will always, or perhaps even usually, be necessary, in a case where a landlord has a number of tenants in a building (or even several buildings) to obtain and present evidence directed to the provision of care, support or supervision to each occupant individually. The landlord may be able to present evidence showing that the level of support provided is broadly similar in relation to all of them. Or there may be evidence of an assessment process whereby only applicants with at least a  particular level of need are accepted as tenants. 

29.	However, the evidence in the present case indicates that there may be considerable variety in the needs of occupants of Woolfield House. For example, there is evidence that occupants are not necessarily people with substance misuse problems. (I do not think that there is any evidence in the papers that the Claimant has any problems with substance misuse). Further, the (anonymised) sample of needs assessments and support plans drawn up by Rehab98 Ltd (pages 144 to 187) appear to evidence considerable differences as regards the level of support (if any) required. Thus, the needs assessment beginning at p.147 stated (under the heading “support needs”): “no support needed at the moment. Will ask if he needs any support.” Indeed, in his letter to the Council dated 10 November 2005 Mr. Key emphasised that “differing levels of support is now provided by the staff at Woolfield House. These differing needs are identified in the resident’s needs assessments and support plans which are undertaken with each individual.” There was not, I think, any evidence that only persons with at least some level of support need are admitted as occupants. 

30.	In the light of the points which I have made in paragraphs 27 to 29 above, I have considerable doubts whether, on the evidence which was before the Tribunal in the present case, it could properly have found that care, support or supervision was provided to the Claimant. Much of the evidence very arguably fails to demonstrate that, either because it relates to the desires and capacity of Rehab98 Ltd to provide support to occupants of Woolfield House generally, or because it consists of statements purportedly from the claimants individually as to the level of support provided to them but which (contrary to the evidence referred to in para. 29 above) are in identical or very similar terms, and so seem to be simply in a standard form which has been put before each claimant for signature, without reference to his or her particular position. 

31.	On my voicing my doubts about this to Mr. Key at the hearing he indicated that he would wish to consider presenting further evidence, and in particular evidence directed to the question as to the amount of support which the Claimant requires and which is provided to him. I therefore consider it appropriate to remit this matter to a new tribunal for redetermination. 

32.	A consequence of what I have said in paragraphs 27 to 29 above is that it is unlikely to be satisfactory to regard this case as a test case, the outcome of which will be treated as determining the other appeals. I think that it is desirable that, if further evidence is going to be presented, this should be done in relation to all the appeals. When that has been done the question whether one or a number of cases can be selected as test or specimen cases should be reconsidered. 

33.	I further think that it is likely to be helpful to the new tribunal for there to be an oral hearing at which the claimants (or those whose appeals are selected as lead cases) give evidence and can therefore be questioned as to the support which is actually provided to them. I am not saying that, in determining whether support is provided to a claimant, support which is available, but of which he rarely avails himself, must be disregarded. It is all a matter of fact and degree. 

34.	One further point which I made at the hearing is that the decision under appeal was made on 17 September 2005. There is evidence in the papers that, following that adverse decision, Rehab98 Ltd sought to increase the level of support provided at Woolfield House, or at any rate its capacity to provide support there. For example, a dedicated support/case worker was employed (p.302) (although I was informed at the hearing that that employment has since ceased), and the number of hours worked at Woolfield House by the staff from Walker House appear to have been increased (from 4 to 12 per week). The new tribunal cannot in this appeal, or the other appeals against the decisions made on 17 September 2005, take into account changes in circumstances after 17 September 2005 (athough it can of course take into account evidence coming into existence after 17 September 2005 as to what the position was up to that date). If it is desired that a tribunal decision be obtained which takes into account any increases in the level of support, it would seem necessary for new claims to be made, decisions made on them and appeals lodged. It would seem sensible for any such further appeals (or a selection of them) to be decided at the same time. 

35.	Clearly, Mr. Key will need to think further about what advice to give to the Rehab98 Ltd and the claimants. I would suggest that all the appeals currently on foot should be listed before a legally qualified panel member for a directions hearing as soon as practicable. 

	(signed on the original)	Charles Turnbull
		Commissioner
		3 July 2007