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	UK Social Security and Child Support Commissioners' Decisions
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[2007] UKSSCSC CH_1246_2007 (17 October 2007)

CH/1246/2007

CH/1247/2007

INTERIM DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. These are appeals by the claimants against a decision of an appeal tribunal sitting at Oxford on 22 January 2007. For the reasons set out below that decision was in my judgment erroneous in law and by way of interim decision I set it aside.
2. I held an oral hearing of these appeals, at which the claimants were represented by Richard Drabble Q.C. and Oxford City Council ("the Council") was represented by Alison Meacher of counsel. Page references in this decision are to the file relating to Michael's appeal.
3. The claimants, Michael and Errol, are men now aged 41 and 65 respectively. They suffer from severe learning difficulties. In June 2001 they were each granted an assured shorthold weekly tenancy of a bedroom, together with shared use of a living room, kitchen and bathroom, in a 3 bedroom house in Headington, Oxford ("the Property"). The landlord is Golden Lane Housing Ltd ("GLH"), a company limited by guarantee which is a registered charity established by Mencap in 1998 in order to provide housing for people with a learning disability. As at August 2005 GLH had some 712 tenants in 317 properties around the country.
4. Only the tenancy agreement relating to Errol is in evidence before me, but I assume that the agreement relating to Michael was in the same form. The agreement recited that the Property was used as part of a project designed to provide supported housing for people with learning difficulties. By Clause 1(4) of the agreement "the landlord shall provide the services set out in the attached Schedule for which the tenant shall pay a service charge." That schedule simply stated that the services to be provided were "so far as practicable to provide general counselling and support."
5. The initial rent under the tenancy was stated as being £425.41 per week, which was broken down into £212.83 by way of "net rent" and £212.57 by way of "service charge." The landlord was empowered to increase the net rent by giving at least one month's notice in writing.
6. On 18 June 2001 a Management Agreement was entered into between GLH and Oxfordshire Learning Disability National Health Service Trust ("OLD"). That Agreement contains the following provisions of potential relevance:

Clause 11 is headed "management of the Property." By Clause 11.1 GLH agrees to select prospective tenants in consultation with OLD and taking into account OLD's views as to the suitability of any nominees. OLD agrees, as agent for GLH, to issue tenants with an assured shorthold tenancy agreement and to ensure that the provisions of such tenancy agreement were explained fully to the tenant. OLD agrees to notify GLH as soon as it became aware of any vacancy or of any change in a tenant's support needs.

By Clause 11.2 OLD agrees to collect the rent and other charges and "in close liaison with GLH to provide the tenants with assistance and advice concerning their entitlement to income support, housing benefit or any other relevant welfare benefit."

Clause 11.4.1 provides that "in carrying out its obligations to consult with Tenants and involve them in the management of the Property, GLH will also consult with OLD." By Clause 11.4.2 GLH shall carry out its obligations under each tenancy agreement. By Clause 11.4.3 "OLD will set Project Rules, and will review these from time to time in consultation with tenants and with GLH. OLD will use reasonable endeavours to encourage tenants to comply with the rules and with the terms of their tenancy agreements."

By Clause 12, if any tenant no longer requires the management, care and support services provided at the Property OLD will use its reasonable endeavours to procure suitable alternative accommodation, and GLH agrees to provide OLD with such reasonable assistance in doing so as OLD may reasonably request.

By Clause 13.1 GLH agrees to "carry out all the repairs at the Property" and to redecorate the exterior and interior as often as may be necessary.

By Clause 13.2 GLH agrees to repair, maintain, replace or renew as required all fixtures, fittings, floor coverings and equipment at the Property which do not belong to the tenants.

By Clause 13.4.1 OLD is to notify GLH as soon as it becomes aware of the need for any repair, maintenance, renewal or replacement to the Property or the fixtures, fittings, floor coverings or equipment at the Property "for which GLH is responsible."

By Clause 13.4.4 OLD agrees to assist the tenants in reporting any repairs or defects to GLH.

By Clause 15.1 OLD agrees to collect the rent and charges and to "remit from the same the sum of £206.63 per week per tenant to GLH" and to "apply the sums retained from the rent and charges collected to the provision of the support services to the tenants."

By Clause 15.6 OLD agrees to pay all water and sewerage rates or charges and all charges in respect of gas, electricity, telephone or other services used or consumed at the Property, except any such charges incurred and payable by any of the tenants.

By Clause 16.1 OLD agrees to keep all internal common parts and all external areas and gardens at the Property clean and tidy and to encourage the tenants to assist them in this undertaking. Clause 16.2 provides that OLD shall be responsible for internal redecoration as and when necessary and in any event will redecorate internally every three years.

7. In April 2003 the interim scheme (known as "transitional housing benefit") whereby, if the accommodation fell within a definition of "supported accommodation", costs incurred by or on behalf of a landlord in providing housing related support to tenants continued to be eligible for housing benefit, came to an end. It appears that, down to April 2003, the bulk of the housing related support was provided to the claimants by OLD on behalf of GLH. It appears that the cost of providing that support was included in the service charge payable by the claimants under the tenancy agreements, and was recouped by way of the housing benefit payable by the Council. It appears that from April 2003 the bulk of the housing related support continued to be provided by OLD, but that the cost was paid direct to OLD by the Supporting People Administering Authority. From April 2003 the claimants' rent was therefore reduced, so that it no longer included any of the costs of providing housing related support. As regards personal care and supervision, as I understand it this has always been provided by OLD pursuant to a contract with the social services department of Oxford County Council.
8. On 1 February 2005 GLH wrote to each of the claimants stating that with effect from 4 April 2005 the rent payable under the tenancy would be £252.17 per week, made up of a basic rent of £243.09 and a service charge of £9.08. The letter pointed out that (as appears to have been the case since April 2003) the new rent did not include any support charge.
9. On 22 July 2005 the Council (i.e. Oxford City Council) wrote to GLH stating that since 1 April 2003 the rent payable by the claimants had not included any support charge, and asking whether GLH was still providing support or contracting out for the provision of support to the claimants.
10. On 12 August 2005 GLH replied, stating that its managing agent, OLD, provided care and support on GLH's behalf to the claimants. The letter further stated that "[GLH] directly provides intensive housing management as well as providing additional support that we do not make a charge for."
11. On 22 August 2005 a rent officer determined that the local reference rent for each of the claimants' dwellings was £121.16 per week.
12. On 5 September 2005 the Council decided that the amount of housing benefit payable to each of the claimants was £121.16 per week, on the ground that the maximum benefit was limited to the amount of the rent officer's determination.
13. The claimants appealed, contending that the rent was not necessarily limited to £121.16 per week because the claimants' accommodation was "exempt accommodation" within the meaning of regulation 10(6) of the Housing Benefit (General) Amendment Regulations 1995. (The definition of "exempt accommodation", as at September 2005, is set out in paragraph 24 below).
14. Before the Tribunal the Claimant, supported by GLH, and represented by Mr Ennals, a solicitor specialising in welfare and community care law who instructed Mr Drabble in relation to the hearing before me, contended that the accommodation was "exempt accommodation " on two grounds.
15. The first ground raises an issue of construction of the definition of "exempt accommodation." The contention seeks to take advantage of the fact that, although (as appears to have been accepted on behalf of the claimants) OLD, in providing housing related support to the claimants, had not since April 2003 been acting on behalf of GLH, OLD did act on behalf of GLH in managing the Property pursuant to the Management Agreement. The contention on behalf of the claimants was (and is) that under the definition of "exempt accommodation" it was sufficient that (a) OLD acted in some respect on behalf of GLH and (b) OLD provided care, support or supervision to the Claimant. The contention was that it did not matter that OLD did not act on behalf of GLH in providing care, support or supervision.
16. Secondly, it was contended that GLH itself provided "support" to the Claimant. At p. 49 is a list of 10 categories of support which it was said GLH itself (i.e. by its own employees) provided to its tenants. At pages 151 to 159 are set out specific examples of cases in which support under each of those categories is said to have been provided to tenants of its various schemes around the country.
17. The Tribunal disallowed the claimants' appeals, following an oral hearing at which a Mrs Hall gave evidence on behalf of GLH.

The construction issue

18. The provision for restriction of the maximum rent eligible for housing benefit by reference to a rent officer's assessment of the rent was introduced by the Housing Benefit (General) Amendment Regulations 1995, with effect from 2 January 1996. That amendment was made by substituting a new regulation 11 of the Housing Benefit (General) Regulations 1987. However, a saving provision was enacted in regulation 10 of the 1995 Regulations. It provided that the old form of regulation 11 should continue to apply in certain cases, one of which was that of a person "who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation." 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 tenant and it is reasonable to expect the tenant to move.
19. "Exempt accommodation" was defined in regulation 10(6) of the 1995 Regulations as including accommodation

"provided by a housing association, registered charity or voluntary organisation where care, support or supervision is provided by, or on behalf of, that body to the occupants of that accommodation."

20. The Housing Benefit (General) Amendment (No. 2) Regulations 1997 amended the 1987 Regulations so as to provide (by way of what became known as "transitional housing benefit") that service charges in respect of general counselling or other support services were eligible for housing benefit provided that they related to "supported accommodation". The definition of "supported accommodation" in the 1997 Regulations was complex, but it included, under some of its heads, a requirement that the landlord fell within certain categories of landlord (e.g. a charity) and a requirement, in identical terms to that in the above definition of "exempt accommodation", that support be provided by or on behalf of the landlord to the occupants of the accommodation.
21. The Housing Benefit (General) Amendment (No. 3) Regulations 1999 amended (with effect from 1 April 2000) both the definition of "supported accommodation" (which applied for the purpose of determining whether charges for counselling and support were eligible service charges under the "transitional housing benefit" scheme) and the definition of "exempt accommodation" (which applied for the purpose of determining whether the old form of regulation 11 applied). In both cases the amendment which was made included an amendment to substitute for the words "where care, support or supervision is provided by, or on behalf of, that body to the occupants of that accommodation", the words "where that body or a person acting on its behalf also provides the claimant with care, support or supervision." However, reg. 13 of the 1999 Regulations stated that those Regulations should cease to have effect at the end of March 2003.
22. The transitional housing benefit scheme expired in April 2003. From that date, therefore, charges made by a landlord in respect of counselling and support provided by it or on its behalf were no longer eligible for housing benefit, even in "supported accommodation". By the Housing Benefit (General) Amendment Regulations 2003 the definition of "supported accommodation" was therefore removed from the legislation, and other appropriate amendments were made. Para. 1(f) of Schedule 1 to the 1987 Regulations, as so amended, now lists the following among ineligible service charges: "charges in respect of general counselling or of any other support services, whoever provides those services." This implemented the policy whereby funds for support costs are paid directly by the relevant authorities to the support provider, rather than being channelled through the landlord, who then subcontracted with the support provider. As it was put in para. 1 of the Secretary of State's Response to the Social Security Advisory Committee's Report on the proposed 2003 Regulations (Cm 5773): "From April 2003, the costs of support services will be funded by the Government's Supporting People programme."
23. The 2003 Regulations also re-inserted the amendment to the definition of "exempt accommodation" in reg. 10(6) of the 1995 Regulations which had been made by the 1999 Regulations, but which was due to expire by effluxion of time at the end of March 2003 (see para. 21 above).
24. As at the date of the decision under appeal to the Tribunal (and indeed since 1 April 2000) the definition of "exempt accommodation" in reg. 10(6) of the 1995 Regulations, which is the immediately relevant definition for present purposes, therefore included

"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."

25. It is submitted by Mr Drabble on behalf of the claimants that the amendment to the definition of "exempt accommodation" made by the 1999 Regulations (and re-inserted by the 2003 Regulations) made two changes of substance. First, it was no longer necessary (or sufficient) that care, support or supervision be provided to the "occupants of that accommodation". The question under the amended definition was simply whether care etc. was provided to the claimant. Secondly, whereas under the former definition it was necessary that the care etc be provided "by, or on behalf of" the landlord, under the amended definition it is sufficient that the care etc. be provided either by the landlord or by some person who acts in some respect (i.e. not necessarily in providing care etc) on behalf of the landlord. Mr. Drabble submits that if the only intended change had been the first one (i) the amended definition would have read as follows: "where care, support or supervision is provided by, or on behalf of, that body to the claimant" and (ii) the word "also" would not have been included in the amended definition. He submits that, on the meaning contended for by the Council (i.e. that the care etc. must be provided by or on behalf of the landlord) the word "also" is redundant.
26. I have no hesitation in rejecting the construction contended for on behalf of the claimants, for a number of reasons.
27. First, the natural meaning of the amended definition is in my judgment that the care etc. must be provided either by or on behalf of the landlord. The words "or acting on its behalf" in my judgment mean acting on its behalf in providing the care support, or supervision which is subsequently referred to.
28. Secondly, had the intention been to make the second change which Mr Drabble contends was intended to be made, the draftsman would surely have used wording which made it much clearer than the present wording does that such a change was intended. One would expect the draftsman to have used wording along the following lines: "where care, support or supervision is provided to the claimant by that body or by some other person who at the time of so providing it is acting in some respect (whether or not in providing the care, support or supervision) on behalf of that body".
29. Thirdly, no plausible reason has been suggested why it should have been thought that, in a case where the care etc. is provided by someone other than the landlord, the question whether "old" regulation 11 applies should depend on whether the provider of care etc. is acting in some respect on behalf of the landlord. Why should the fact that the care provider acts on behalf of the landlord in, say, collecting the rent (but not in providing the care etc) make a difference? I can see no reason why it should, and no plausible reason has been suggested. Mr Drabble suggested that the reason might have been in order to simplify the factual enquiries, required by the old definition, as to whether the provider of care etc is acting on behalf of the landlord in doing so. However, that does not seem to me to be a plausible reason for such a change.
30. Fourthly, after the 1999 amendments para. 1(f) of Schedule 1 to the 1987 Regulations (dealing with ineligible service charges) read as follows:

"charges in respect of general counselling or of any other support services whoever provides those services, except where those services –

(i) are provided to a claimant in supported accommodation by his landlord in person or someone on his behalf; and

(ii) fall under paragraph 2 of Schedule 1B (service charges for claimants in supported accommodation)."

31. It was therefore quite clear that the amended definition of "supported accommodation" was not intended to cover the situation where the support provider was acting in some respect on behalf of the landlord but not in providing the support. As Miss Meacher pointed out, that would in any event have been clear because it is only in cases where the support was provided on behalf of the landlord that the landlord would be entitled to recover from the tenant the cost of providing that support. Only in such cases, therefore, could the cost of providing the support have been eligible for housing benefit in any event. In my judgment the strong inference is that the amended definition of "exempt accommodation" was intended to have the same meaning as the definition of "supported accommodation."
32. I accept that, on the construction which I favour, there is no explanation why the draftsman of the 1999 Regulations should have wished to change the structure of those definitions to a greater extent than was necessary in order to make it clear that the support must be provided to the claimant, rather than to the occupants of the "accommodation". In other words, there is no explanation why the amended definitions did not read simply "where care, support or supervision is provided by, or on behalf of, that body to the claimant" However, I do not regard that as a convincing reason why the amended definition should be given a meaning which in my view is not its natural meaning.
33. On the construction issue the Tribunal therefore in my view arrived at the right result.

The issue whether GLH itself provided support

34. The Tribunal summarised its reasons on this issue as follows in para. xi of the Statement of Reasons:

"I heard the concession that GLH does not claim to provide care so I had only to consider control or supervision. I also heard that they rely on tenants contacting them, that visits by GLH to the property in question seem to be no more frequent than annually, and that GLH rely on OLD to contact them – GLH – in the event of there being some concern. I was assured that needs of tenants are variable, some being more needy or demanding than others. But when I looked at the very minimal requirements for formal contact between GLH and OLD under the management agreement and when I heard from the witness that there was no formal mechanism for contact between the two organisations to review operation of their agreement at particular addresses I remained unconvinced that GLH provided care support or supervision or that they had either the resources or structures to be able to respond if it was sought."

35. It is contended on behalf of the claimants that the Tribunal erred in referring (in the first sentence of that passage) to "care, control or supervision", as opposed to "care, support or supervision". There are a large number of references in the Statement of Reasons to the relevant part of the wording of the definition of "exempt accommodation". In some places the right wording is used (as in the last sentence of the passage quoted above), but in many places the Tribunal refers to "control" instead of "support". In my judgment it is impossible to be confident that, in deciding the crucial issue of fact, the Tribunal had the correct wording in mind. It is very possible that it did not, particularly when one bears in mind that in para. v the Tribunal said that the issue of whether the definition was satisfied "depended on where responsibility lay for their "care, control or supervision."
36. In my judgment the Tribunal's decision was erroneous in law in failing to make it sufficiently clear that the Tribunal had the correct wording of the definition in mind.
37. The Tribunal's decision must therefore be set aside. It is in my judgment not appropriate that I attempt, on the material before me, to substitute my own decision. I indicated at the hearing before me that I would not be doing so, and therefore heard no argument on what my substituted decision should be. My reasons for so indicating were, first, that I do not feel that it is always sufficiently clear, from the chairman's note of the evidence given by Mrs. Hall (pages 243-5), exactly what Mrs. Hall was saying in her very important evidence. (Only a small part of Mrs. Hall's evidence is directly referred to in the Statement of Reasons). Secondly, I have also set aside (a) an appeal tribunal's decision in a similar case relating to GLH property in Sheffield (the appeal to me in that case (CH/2805/2007) having been heard at the same time as this appeal) and (b) an appeal tribunal's decision in a similar case relating to GLH property in the London Borough of Hounslow (CH/779/2007). The evidence as to the scope of the support which GLH is able to and does provide is fuller in some of these cases than in others. It is in my judgment appropriate, on grounds of consistency and efficiency, that the three sets of appeals should be decided after a joint hearing. For that reason, and also because I am now familiar with all three sets of appeals, I also consider that the rehearings of all these appeals should be before me in London, rather than by one or more fresh appeal tribunals. The decision which I have made in paragraph 1 above is therefore merely an interim decision setting aside the decision of the Tribunal.
38. I am giving directions in the three sets of appeals in a separate document.

(signed on the original) Charles Turnbull

Commissioner

17 October 2007