[2008] UKSSCSC CIS_488_2008 (15 May 2008) 

CIS/488/2008

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	   For the reasons given below, this appeal, which is brought by the secretary of state with the leave of a tribunal chairman, is allowed.  I set aside the decision of the tribunal and I remit the case to a new tribunal to determine in accordance with the directions given below.

2.	   There is a paucity of evidence in this case, but it appears that the claimant is the tenant of a flat which she rents from a local authority.  The lease is not in evidence but it appears to have been accepted that the sum of £6449.80 was due from the claimant to the local authority by way of service charge under her lease.  The claimant, who is in receipt of income support, has sought to recover that sum as housing costs.  The decision maker submitted to the tribunal that the works in respect of which the service charge was payable all came within the definition of “repairs and improvements” in paragraph 16(2) of the Third Schedule to the Income Support (General) Regulations 1987 (“the Third Schedule”) and were therefore specifically excluded by paragraph 17(2)(c) of that Schedule.

3.	   Paragraph 17(1) of the Third Schedule provides as follows:

“(1)	Subject to the deductions specified in sub-paragraph (2)……, there shall be met under this paragraph the amounts, calculated on a weekly basis, in respect of the following housing costs –

		(a)	Payments by way of rent or ground rent relating to a long tenancy and, in Scotland, payments by way of a feu duty;
		(b)	Service charges;
		(c)	Payments by way of rent charge within the meaning of section (1) of the Rent Charges Act 1977; 
		(d)	Payments under a co-ownership scheme; 
		(e)	Payments under or relating to a tenancy or licence of a crown tenant;
		(f)	Where the dwelling occupied as the home is a tent, payments in respect of the tent and the site on which it stands.

		(2)	…… the deductions to be made from the weekly amounts to be met under this paragraph are –
……………………
b)	Where the costs are inclusive of ineligible service charges within the meaning of paragraph 1 of Schedule 1 to the Housing Benefit (General) Regulations 1987 (ineligible service charges) the amount attributable to those ineligible service charges or where that amount is not separated from or separately identified within the housing costs to be met under this paragraph, such part of the payments made in respect of those housing costs which are fairly attributable to the provision of those ineligible services having regard to the costs of comparable services; 
c)	Any amount for repairs and improvements, and for this purpose the expression “repairs and improvements” has the same meaning it has in paragraph 16(2).  

4.	  Paragraph 16 of the Third Schedule is headed “Loans for repairs and improvements to the dwelling occupied as the home.  Regulation 2 of the Regulations defines “dwelling occupied as the home” as “The dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately, in particular, in Scotland, any croft land on which the dwelling is situated”.

5.	  Paragraph 16 provides as follows:

(1)	A loan qualifies under this paragraph where the loan was taken out, with or without security, for the purpose of –

a)	Carrying out repairs and improvements to the dwelling occupied as a home;
b)	Paying any service charge imposed to meet the costs of repairs and improvements to the dwelling occupied as the home;
c)	Paying off another loan to the extent that the other loan would have qualified under head (a) or (b) of this sub-paragraph had the loan been paid off, 

	and the loan was used for that purpose, or is used for that purpose within 6 months of the date of receipt of such further period as may be reasonable in the particular circumstances of the case.

	(2)	In sub-paragraph (1) “repairs and improvements” means any of the following measures undertaken with a view to maintaining the fitness of the dwelling for human habitation or, where the dwelling forms part of a building, any part of the building containing that dwelling –

a)	Provision of a fixed bath, shower, wash basin, sink or lavatory and necessary associated plumbing, including the provision of hot water not connected to a central heating system;
b)	Repairs to existing heating systems;
c)	Damp proof measures;
d)	Provision of ventilation and natural lighting;
e)	Provision of drainage facilities;
f)	Provision of facilities for preparing and cooking food;
g)	Provision of insulation of the dwelling occupied as a home;
h)	Provision of electric lighting and sockets
i)	Provision of storage facilities for fuel or refuse;
j)	Repairs of unsafe structural defects;
k)	Adapting a dwelling for the special needs of a disabled person; or
l)	Provision of separate sleeping accommodation for children of different 
m)	sexes aged 10 or over who are part of the same family as the claimant.

	(3)	Where a loan is applied only in part for the purposes specified in paragraph (1), only that portion of the loan which is applied for that purpose shall qualify under this paragraph.”

6.	   The appeal was dealt with by the tribunal as a paper hearing at the suggestion of the claimant’s representative.  The evidence as to the work done was limited to a schedule supplied by the local authority as part of its claim for the service charge contribution to be made by the claimant.  It includes a very limited amount of repointing, work to both a sloping and a flat roof, replacement of cladding, fascia and soffits, gas surveys, work to windows and the replacement of windows and doors.  There is also what is described as access equipment – presumably scaffolding and the like.  The first item of extra works indicates that at least in relation to those extra works, six blocks of flats were concerned.

7.	   While it may be that the purpose of the work was to maintain the fitness of the building for human habitation, it is only the specific measures listed that are included under paragraph 16(2).  It is plain that most of the work cannot come within any of the measures listed.  There has been no attempt by the decision maker to point to any particular items as requiring further investigation, and there was no presenting officer at the tribunal hearing to present the secretary of state’s case, or question the claimant.

8.	   Although, on this appeal, the secretary of state has sought to contend that the charges fell within paragraph 17(2)(b) of the Third Schedule, no such contention was made before the tribunal.  That sub-paragraph provides for the deduction from housing costs of ineligible service charges within paragraph 1 of Schedule 1 to the Housing Benefits Regulations 2006.  Those are service charges for such items as food, laundry, leisure facilities, transport and other personal matters and to charges in respect of any services not otherwise specified “which are not connected with the provision of adequate accommodation”.  Bearing in mind that the case of the secretary of state before the tribunal was that the work constituted repairs and improvements undertaken with a view to maintaining the fitness of the building for human habitation, it is difficult to see how, at the same time, he could contend that the work as a whole was not connected with the provision of adequate accommodation, and indeed it is apparent that the work as a whole on its face was concerned with the provision of such accommodation.

9.	  Under section 12(8)(a) of the Social Security Act 1998, the tribunal need not consider any issue that is not raised by the appeal, and while this does not entitle it to ignore an issue that it should be obvious required consideration, I am unable to find any error of law on its part in not addressing an issue for which there was no obvious factual basis before it and which was inconsistent with the case in fact advanced by the secretary of state.  

10.	The principal point made on this appeal by the secretary of state on the basis of paragraph 17(2)(b) is that it is not clear in what sense the replacement of the existing timber cladding by rock profile cladding is connected with the adequacy of the accommodation.  It appears to me that if the cladding of a building is nearing the end of its life, it is part of the maintenance of the building to replace it with other suitable cladding, and that the provision of such cladding is “connected with the provision of adequate accommodation”.  It might be another matter if inexpensive cladding was replaced with new expensive cladding, but there is no evidence of this and no allegation either before the tribunal or before me that that was the case.  It also seems unlikely that a local authority would incur such an unnecessary expense in relation to its property, and if it did, then the secretary of state would be in a better position to adduce evidence as to suitability and expense that a claimant on income support.   I can therefore see no reason why the tribunal should have felt it necessary to consider the question, when the point had never been raised by the secretary of state.

11.	In relation to the application of paragraph 16(2) of the Third Schedule, the secretary of state first makes the point that freeholders taking out home improvement loans can only receive interest in respect of the repairs and improvements specified in that paragraph and there is no help for freeholders with any other improvements of a capital nature.  As is pointed out in reply by the claimant’s representative, however, paragraph 17 is concerned with service charges.  These are imposed by the terms of the claimant’s lease, the claimant has limited control over what the landlord does, and the claimant can lose his or her home if the service charges are not paid.  Further, the terms of paragraph 17 are clear that all service charges are to be treated as housing costs unless they fall within one of the specified exceptions.

12.	The second issue in relation to paragraph 16(2) is that it is said that there are no findings as to whether any of the work was carried out to repair unsafe defects.  It is observed that the schedule of work indicates problems with the roof, tiling and brickwork which might well be unsafe, and that something had prompted a large scale operation, but there was no indication what that might be.

13.	It is normal for blocks of flats to have a periodic overhaul.  That is not in itself indicative of there being anything unsafe at the flats.  The main purpose of such overhauls, typically every 5 to 7 years, is to prevent there being anything unsafe by taking appropriate remedial action.  So far from indicating problems with the roof, tiling and brickwork, the trivial amounts allowed in the specification for those items indicates that they must have overall been in good condition. Indeed, the local authority describes the work to the roof and the brickwork as minor at p.20 of the file.  With regard to the provision of roof insulation, there was nothing to suggest that this was to maintain the fitness of the dwelling for human habitation, rather than, as the representative of the claimant put it in written submissions to the tribunal, desirable work in the interests of energy efficiency.

14.	There is, however, one area which gives me cause for concern.  The replacement of the cladding, windows and doors may have involved, at least in part, repairs of unsafe structural defects, although it may also have simply involved the replacement of items that may in the future have become unsafe, or that simply no longer operated to a satisfactory standard and where repair was regarded as uneconomic.  Further, even if there was involved the repair of unsafe structural defects, there is also the question which of such repairs was undertaken with a view to maintaining the fitness of the building or the relevant part of it for human habitation.

15.	 It appears to me that this is an area which the tribunal ought to have sought to investigate in relation to the operation of paragraph 16(2) of the Third Schedule.  As was pointed out in R(IS) 2/07, paragraph 30, the judgments of the House of Lords in Kerr v Department for Social Development, reported as R(SF) 1/04, does not authorise the award of benefit in default of proper investigation by the secretary of state.  At the same time, the scope for investigation may be limited, and the tribunal can do no more than is reasonable in all the circumstances.  I note that in paragraph 20 of R(IS) 2/07, the Commissioner cited the decision of the Court of Appeal in R v Stoke-on-Trent City Council v ex parte Highgate Projects (1997), 29 HLR 271 at 278 for the proposition that it is for the claimant to establish that a service charge is not ineligible by virtue of paragraph 1 of Schedule 1 to the Housing Benefit General Regulations.  However, both of those cases were concerned with cases of ineligible service charges where the landlord or the management company was effectively running the tenant’s claim, and was in a far better position than anybody else to provide the necessary evidence.

16.	In a case where the service charge is imposed by a council which is both landlord and deciding eligibility for housing benefit, it appears to me that different considerations would apply.

17.	In Kerr, Baroness Hale considered the nature of the process as between the DWP and the claimant in a judgment with which the other members of the House of Lords agreed.  Having reviewed the claims process, she continued at paragraphs 62 and 63:

“62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced. 

63. If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself.” 

18.	That approach appears to me to be the appropriate approach by the tribunal in seeking to ascertain the relevant facts.  In the present case, it appears to me that there are some questions which could properly be asked of the claimant, who could reasonably be expected to know something, although by no means everything, about the appearance of the block in which she lived and about any problems either with cladding or with windows and doors.  On the other hand, there is likely to be other information which may be more readily ascertainable from the local authority, and it may be that the secretary of state is in as good a position as, or a better position than, the claimant to seek such information.  I do not consider that there is anything in R v Stoke-on-Trent ex parte Highgate Projects which is in any way inconsistent with the approach of the House of Lords in Kerr.  The concept of the legal burden of proof and the natural person to look to for information, the evidential burden, coincided in the Stoke-on-Trent case, but, as Baroness Hale pointed out, it is rarely necessary to resort to the concept of the legal burden of proof.  

19.	Just as in Kerr, the department was not permitted to use its own failure to ask the right questions to defeat a claim (see R 1/04 (SF), para.65)), so too, the secretary of state cannot rely on his decision maker’s failure to ask the right questions to defeat the claimant’s claim in the present case.  Nevertheless, on an appeal to the tribunal, the claimant must attend and answer such questions as he or she may be expected to answer.

20.	In the end, I have concluded that the tribunal ought not to have dealt with this case as a paper hearing, but ought to have made its own enquiries, so far as the claimant could assist, into the nature of the problems with the structure and state of repair of the building, so as to determine whether the work included the repair of any unsafe structural defects undertaken with a view to maintaining the fitness of the dwelling or the building or any part of the building for human habitation.  The claimant lived in the block and was in a position where she could be expected to have some information as to the state of the cladding and the need to replace doors and windows, even if that information was relatively limited.

21.	Bearing in mind that the local authority was not taking any part in the adjudication process, and that the secretary of state was in as good a position as the claimant to make additional enquiries of the local authority, in my judgment the tribunal would be entitled to come to a conclusion on the balance of probabilities on the basis of the evidence of the claimant and such documentation as was available from the local authority, and to infer from the silence of the secretary of state that there was no further evidence to adduce on the issues.

22.	On the limited ground that the tribunal ought not to have dealt with this case as a paper hearing, but ought to have questioned the claimant to obtain such relevant information as she was reasonably able to give, I allow this appeal and make the order set out in paragraph 1 above. 

	(signed on the original)	Michael Mark
		Deputy Commissioner
		15 May 2008