CH/0322/2010

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision(s) made by the First-tier Tribunal (Social Entitlement Chamber) sitting at Oxford on 15th May 2009 (reference 048/06/00593). I substitute my own decision to the effect that in respect of the relevant claim(s) for housing benefit the claimant is entitled to have his share of the costs of fuel for and cleaning of the common rooms of his accommodation included in his eligible rent. I refer to the relevant local authority questions relating to the calculation and payment of any arrears on this basis.

Hearing

2. I held an oral hearing of this appeal on 1st March 2011. The appellant/claimant did not attend in person but was represented by Mr Dan Kolinsky of counsel, instructed by the Child Poverty Action Group. The Secretary of State was represented by Mr Brian Mulrennan from the office of the Solicitor to the Department for Work and Pensions. The respondent local authority (referred to below as “the authority” or “the Council”) was represented by Mr Dean Underwood of counsel. I am grateful to them all for their assistance.

Background and Procedure 

3. This is one of a large series of related appeals involving claimants in a similar position and the same local authority. It is the first to be heard and decided by the Upper Tribunal at this stage and in that sense is being treated as the lead case, although I have not (yet) had any of those other cases referred to me for decision. I also understand that there are many other claimants who will be affected by this decision, both within the area of the respondent local authority and in other local authority areas.

4. The claimant is a man who was born on 26th April 1949. He has severe learning disabilities, is a tenant of a housing association property at “number 21” and is one of four tenants of the property, all of whom have similar difficulties. Each tenant has their own bedroom and they share one kitchen, one bathroom, two toilets, two sitting rooms and one other room. Care, support and supervision by staff are provided 24 hours per day, although only for two to three hours daily on a one to one basis. There are usually two staff member on duty in the morning, three in the afternoon, and two overnight (one awake and one sleeping). There is a room reserved for the exclusive use of staff.

5. The claimant was entitled to housing benefit. On 28th February 2006 the respondent local authority decided that for the period 3rd April 2006 to 2nd April 2007 the weekly eligible rent was £95.22 and awarded that amount of housing benefit. I cannot reconcile this figure with the other information that I have, but that is not the issue in this appeal. On 27th March 2006 the Council decided that the previous decision had been mistaken and revised it. The new decision for the same period was that although the total rent was £114.54 weekly, this included £12.85 for personal services which could not be met by housing benefit (this is agreed between the parties), and also included charges for fuel of £15.37 weekly and cleaning of £4.13 weekly which related to communal rooms. The local authority decided that these weekly charges of £19.50 relating to communal rooms could not be met by housing benefit as the appellant did not reside in sheltered accommodation (that is the point at issue in this appeal) and that the housing benefit entitlement was £82.19 weekly.

6. In a process that took from 6th April 2006 to 8th May 2006 those acting on behalf of the claimant appealed to the Appeal Tribunal against that latter decision of the Council. The tribunal considered the matter on 22nd January 2007 and confirmed the decision of the Council. On 13th June 2008 (sitting as a Social Security Commissioner), in CH/1116/ 2007, I allowed the claimant’s appeal against that decision of the tribunal and remitted the case to a differently constituted tribunal for a fresh hearing and decision. This was because of a lack of findings of fact and inadequate reasons for the conclusions reached by the original tribunal.

7. On 3rd November 2008 the relevant jurisdiction was transferred to the First-tier Tribunal (Social Entitlement Chamber), which considered the matter on 15th May 2009 and again confirmed the decision of the Council. On 14th September 2009 a judge of the First-tier Tribunal gave the claimant permission to appeal to the Upper Tribunal against that decision of the First-tier Tribunal. The Secretary of State was subsequently joined as a party and on 19th October 2010 I directed that there be an oral hearing of the appeal. The Council and the Secretary of State oppose the appeal and support the decision of the First-tier Tribunal.

The Relevant Law

8. Schedule 1 to the Housing Benefit Regulations 2006 deals with service charges that cannot be met by housing benefit. The relevant paragraphs provide as follows:

1. The following service charges shall not be eligible to be met by housing benefit - 

(a) charges in respect of day-to day living expenses including, in particular, all provision of – 
…
	(iv) cleaning of rooms and windows except cleaning of – 
		(aa) communal areas …

…

5. A service charge for fuel except a charge in respect of services for communal areas shall be ineligible to be met by housing benefit.

…

	8. In this Schedule – 

“communal areas” means areas (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.

9. This convoluted series of exceptions to exceptions means that housing benefit includes the costs of cleaning and fuel for communal areas other than rooms in all accommodation, but also includes the costs of cleaning and fuel for communal rooms in sheltered accommodation. If the claimant’s home is in sheltered accommodation (as his representatives argue) then he is entitled to have the extra costs included in his housing benefit. If his home is not in sheltered accommodation (as the Secretary of State and the local authority argue) then he is not so entitled. The phrase “sheltered accommodation” is not defined in the 2006 regulations or in any other statutory material concerning the housing benefit scheme.

10. The only authority on the meaning of that phrase to which I have been referred is in the decision by Upper Tribunal Judge Mesher (sitting as a Social Security Commissioner) in the Appendix to a series of cases including CIS/1460/1995. His comment was obiter (not necessary to the decision that he made) as it was agreed in those cases that the claimants were in fact in sheltered accommodation. In paragraph 18 of the Appendix he said:

“It seems to me that the characteristics of the accommodation in the present case which point conclusively to its being sheltered accommodation are that the individual dwellings are grouped together; that accommodation is offered primarily to those with some special housing needs (in this case the elderly retired); that some communal accommodation or facilities are provided; that a warden is employed; and that an emergency alarm system is operated. It is certainly not the case that accommodation is only sheltered accommodation if all or even a majority of those characteristics are present. However, characteristics of that kind should be looked at in determining whether accommodation is sheltered accommodation”.

11. I observe that there was no reference here to the presence of any particular factor as ruling out accommodation from being regarded as sheltered accommodation, and that if there is no communal accommodation then the issue does not arise because then there would be no question of there being a cost of cleaning or of fuel in common rooms.

Statutory Interpretation

12. At the hearing there was some discussion of the principles of statutory interpretation but I did not find this discussion to be helpful in determining what counts as sheltered accommodation. However, on 3rd January 2011 the Supreme Court decided the case of Yemshaw v Hounslow London Borough Council [2011] UKSC 3; [2011] 1 All ER 912, which did not come to my attention until after the hearing in the present case, when it was published in the law reports. This concerned the meaning of the phrase “domestic violence” for the purposes of the Housing Act 1996 and whether the word “violence” was limited to physical contact. Having reviewed the development of official policy on the matter, Lady Hale said as follows (paragraphs 25 to 27):

“However, it is not for government and official bodies to interpret the meaning of the words which Parliament has used. That role lies with the courts. And the courts recognise that, where Parliament uses a word such as “violence” the factual circumstances to which it applies can develop and change over the years. … “Violence” … is not a term of art. It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. The essential question … is whether an updated meaning is consistent with the statutory purpose”.

13. Lady Hale also referred to the decision of the House of Lords in Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 on whether the word “family” could include a same sex partner.

14. I also refer to my decision (sitting as a Social Security Commissioner) in CH/4250/2006, concerning the meaning of “houseboat” in which I said (paragraph 19):
“The way in which this term is used by various organisations might reflect or inform common usage but cannot define it for the purposes of the law on housing benefit”.

The First-tier Tribunal 

15. The First-tier Tribunal commented that the claimant needed a significant degree of supervision in order to function within the community, that to describe the staff as “wardens” would be to “downgrade” them. Essentially the tribunal accepted the following submission from the local authority:

“The Council contends that “sheltered accommodation” is conventionally used to describe a group of self-contained properties (i.e. with cooking and washing facilities within the unit of occupation), specifically designed to suit the needs of older people and/or disabled and/or other grounds [sic] of vulnerable people, with a resident Warden (or Scheme Manager as they are now called) and/or an Emergency Call System and a common room in close proximity to the accommodation.

The role of the Warden is usually to deal with emergencies and the day to day management of accommodation. The Warden is not expected to undertake any support services such as cleaning cooking or other domestic chores or provide personal care to the residents. Given the nature of their role there may be periods when the Warden is not available, hence, a feature of sheltered accommodation that the residents will be sufficiently able bodied/active to live in self-contained accommodation, albeit with the benefit of any assistance or support provided by family members or Social Services (i.e. Meals on Wheels”.

The Claimant’s Argument 

16. Mr Kolinsky’s main argument was that the relevant words must be given a meaning that is consistent with the underlying purposes of the legislation, which was about financial assistance to enable people to be or remain in their accommodation and that it was wrong to focus on care needs and to import into the scheme fine distinctions based on an assessment of care needs of those who live outside residential care, or other matters not specified in the regulations, in order to decide whether particular accommodation costs are covered. The Secretary of State, in making the regulations, had repeatedly failed to take the opportunity to define or narrow the meaning of “sheltered accommodation” and therefore the meaning must be taken to be broad and flexible. Distinctions based on the role of the warden are very remote from the purposes of the housing benefit scheme.

The Respondents’ Argument

17. The respondents argued that here the accommodation could not be sheltered accommodation because there was no warden in the sense discussed by the First-tier Tribunal and because the claimant’s accommodation, in the sense of his exclusive occupation, was not self-contained. A common and predominant theme of sheltered accommodation as generally described is that there are three essential features which must all be present. There must some type of warden or scheme manager and an emergency alarm system and the residents must be capable of living independently for part of the time, without round the clock supervision or support. Mr Underwood was not sure that he would go so far as to say that a claimant’s accommodation must be self-contained (so that it can be lived in without using the common rooms) but a great deal of regard must be given to this even if it is not determinative.

18. Mr Underwood referred to documents from a number of organisations that had been placed before the First-tier Tribunal and were in the Upper Tribunal file. I comment here that I did not find that the number or volume of such documents added much since they appear to have been drawing on each other or/and drawing on a common source or sources. 

19. Shelter’s 2007 document is headed “Rights in Supported Accommodation”, which it defines as including (a) a house or flat where “you receive support” from social work or other organisations, (b) sheltered housing (c) a care home or nursing home (d) a hostel or rehabilitation centre. In relation to sheltered housing the document states:

“Sheltered housing gives older people the independence of having their own flat with the security of having an alarm system and a warden. The flats are usually small self-contained units or single rooms in a complex which often has a communal social area …”

20. I acknowledge that this document is not written for lawyers and is clearly not intended to be an authoritative statement of the legal position, but on a close look I am not persuaded that it helps Mr Underhill very much. For example, help is available from social work and other organisations in their own homes to anybody who needs it, irrespective of the type of accommodation, and I cannot see that Shelter’s category (a) is a distinct type of accommodation or that if accommodation is in this category it cannot also be sheltered accommodation. The description of sheltered housing refers to it usually consisting of self-contained units – which makes it unhelpful for the purposes of this case.

21. I do not propose to go through the documents from the other organisations, but similar comments can be made about all of them. In addition, a document from the City of London Corporation can only really go to its own policy. An extract from the Directgov website (which I acknowledge is deliberately designed to be easily read and not to contain sophisticated analysis) refers to “extra care sheltered housing” or “very sheltered housing” for people who are less able to manage on their own but do not need the level of care available in a residential home. I see no reason at all why these two labels are not subsumed within the concept of “sheltered accommodation”.

22. Mr Underwood suggested that the claimant lives in a “group home” and that this is different from “sheltered accommodation” and from a “care home”. He then referred to a House of Commons (Westminster Hall) adjournment debate on Sheltered Housing held on 14th June 2000 (Hansard Column 265WHff). Initiating the debate, Mr David Drew MP, a government backbencher, said (column 267WH):

“A disappointing aspect of my research into this matter is that one of the strongest concerns expressed during the consultations was about where sheltered housing fits in. That point needs to be addressed … the main [reason for that concern] is that, in these times of change, sheltered accommodation does not fit neatly into any of the relevant categories. It is not genuinely supported housing unless it falls under the very sheltered category …”.

23. The relevant Minister, Parliamentary Under-Secretary for the Environment Chris Mullin MP, replied that the Care Standards Bill would introduce the regulation and inspection of all types of home care provision, including that provided in sheltered accommodation, but he could provide no details about benefits, on which the government was working (Columns 270WH and 271WH).

24. Apparently that debate was part of the background to Department for Work and Pensions Circular HB/CTB A47/2001 issued in October 2001. Annex A of that Circular provided guidance to local authorities “to help them in making decisions on the reasonableness and eligibility of general counselling and support charges” (page 8, my emphasis). It contained a list of the main types of supported accommodation but warned that the terminology used referred to the “most commonly used names for types of supported housing schemes and services” (the Circular’s emphasis). The list comprised hostels (which are separately defined for housing benefit purposes), women’s refuges, group homes, supported lodgings, accommodation provided by a warden (resident or non-resident) – which was often referred to as sheltered accommodation, and high level needs warden assisted accommodation - which was often referred to as very sheltered or extra care housing. Of the final category the guidance stated (page 9): “These schemes provide for tenants with higher support needs, and those who require assistance with personal care, but do not require residential or nursing care”. In relation to group homes, the guidance stated (page 8): “The levels of support vary depending on the needs of the tenants group within the accommodation”.
25. I do not find Mr Underwood’s reliance on this circular or the preceding parliamentary debate to be very helpful. This part of the circular is not about entitlement to housing benefit; it is about “general counselling and support charges”. Even within its own terms it does not provide definitions that are useful, as the above explanation of group homes indicates. I also see no basis for saying that “very sheltered or extra care housing” is not encompassed within the term “sheltered accommodation”. 

26. For the Secretary of State, Mr Mulrennan adopted Mr Underwood’s submissions and added further arguments.  He suggested that it was more important to look at the nature of the accommodation rather than the level of care or degree of dependency. These latter were relevant but the physical layout was more likely to be determinative. Sheltered accommodation was more likely to be self-contained  with additional rooms that might or might not be used. Generally the occupants of sheltered accommodation could cook and wash within their own accommodation. The Department’s policy was demonstrated in the Circular, and its understanding of the concept could change and develop over time. but he was not arguing that the Circular could authoritatively clarify the law on entitlement. He acknowledged Mr Kolinsky’s point that the Circular (and many of the other documents) post-dated the use of the concept of sheltered accommodation in housing benefit legislation. 

27. Finally, Mr Mulrennan pointed out that the Department’s policy was that where a claimant was in receipt of income support, the personal allowance was intended to cover the cost of cleaning and heating common rooms available for use by the claimant where common the rooms were necessary to making the accommodation adequate. The extra amount payable by way of housing benefit for sheltered accommodation was intended to cover the costs that were not necessary where a person was in self-contained accommodation. 

28. To begin with I had difficulty grasping this final argument, to the evident dismay of those sitting behind Mr Mulrennan. This was because it was not supported by any of the legislative provisions and simply did not make sense to me. It still strikes me as a highly arbitrary and artificial distinction, especially in view of the acceptance that being self-contained is not necessarily the determinative characteristic of sheltered accommodation. 

29. Indeed, I put to the respondents that they seemed to be arguing that the more help a person needed, in the sense of being less able to live completely independently, the less financial help they would get in terms of whether housing benefit could also cover the fuel and heating costs of the common rooms. Mr Underwood accepted that this was the logic of his position. However, I would require very clear statutory language indeed to persuade me that that was either the policy or the meaning of the housing benefit scheme.

Conclusions

30. The meaning of the term “sheltered accommodation” in the Housing Benefit Regulations 2006 must be understood in the context of the housing benefit scheme and cannot be governed by policy or guidance or distinctions used for what the Circular referred to above called “general counselling and support”. There are different schemes and provisions dealing with the non-housing costs of social care. The provision I am concerned with in this case relates specifically to the housing costs. The scheme is designed to assist people, on a means-tested basis, who might otherwise be unable to afford a roof over their heads. Because of disability some people need to incur greater housing costs (irrespective of the costs that might be incurred for other aspects of ensuring their welfare). 

31. In this context I agree with Mr Kolinsky’s general argument, and I also agree with him that the fact that the term “sheltered accommodation” is left undefined means that it is not to be given a narrow or technical meaning.

32. “Sheltered accommodation” clearly means something more than ordinary accommodation or shelter, otherwise the distinction would not be made in paragraph 8 of Schedule 1 to the regulations. This can only really mean that it is accommodation provided for people who are in some way (and probably for some defined reason) more vulnerable than most people are, or are vulnerable in a particular kind of way. 

33. If, for reasons relating to the nature of claimant’s vulnerability, there are resident or other staff on hand, then I see no reason why, as part of the definition, there has to be a warden/manger and/or an alarm system. Subject to that, I agree with the comments of Judge Mesher referred to in paragraph 10 above. 

34. The First-tier Tribunal went wrong in unduly emphasising the presence of a warden/manager and an alarm system. More significantly, the First-tier Tribunal and the respondents have gone wrong in emphasising a need for the accommodation to be self-contained. By definition we cannot be talking about totally self-contained accommodation, because the relevant provisions of Schedule 1 only come into play if there are common rooms that have to be lit, heated and cleaned. I see absolutely nothing in the regulations that prevents housing benefit being available for these costs because a claimant could happily chose not to ever use any of these common rooms. Indeed, that would be perverse – to say that the less need there is to use such rooms, the more likely it is that housing benefit should cover their cost.

35. There are some types of accommodation that are clearly not “sheltered accommodation” – such as (and these are only examples) (a) accommodation of the type that most people probably occupy which is not designed for any kind of vulnerable person or where there is absolutely no special provision, (b) residential or nursing care homes, (c) standard student accommodation  and (d) other types dealt with by other provisions of the housing benefit scheme. However, unless accommodation is excluded by virtue of being in one of those categories, a broad view should be taken of the meaning of “sheltered accommodation” for these purposes and, in my opinion, it certainly includes the type of accommodation occupied by the claimant.

36. For the above reasons this appeal by the claimant succeeds.

H. Levenson
Judge of the Upper Tribunal 
28th March 2011