[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> [2009] UKUT 28 (AAC) (10 February 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/28.html Cite as: [2009] UKUT 28 (AAC)

[New search] [Printable RTF version] [Help]

[2009] UKUT 28 (AAC) (10 February 2009)

IN THE UPPER TRIBUNAL
Appeal No. CH/1615/2008

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by Wigan Council ("the Council"), brought with the permission of the chairman, against a decision of an appeal tribunal sitting at Wigan on 14 August 2007. For the reasons set out below I dismiss the appeal. I held an oral hearing of the appeal at which Mr Huw James appeared on behalf of both the Council and the Secretary of State, and Mr Simon Ennals, solicitor, appeared on behalf of the Claimant. The Secretary of State had requested that he be joined as a party to the appeal.

The facts

2. The Claimant is a single woman now aged about 29 who suffers from learning disabilities to the extent that she requires a person to be providing care, support or supervision on a 24 hour basis. That means that, in order to enable her to live as independently as possible in self-contained accommodation, she requires someone to sleep in that accommodation overnight. Before moving to the accommodation referred to below the Claimant lived with her parents and received the necessary care, support and supervision from them.
3. On 24 June 2005 the Claimant was granted a tenancy of accommodation in Wigan. The property in question is a 2 bedroomed house. The landlord is Partners Foundation Ltd ("PFL"), a not-for-profit organisation specialising in the provision of accommodation for people with learning disabilities.
4. Clause 1b of the tenancy agreement provided as follows:

"This agreement relates to the premises at [address set out].

Tenancy commencement date: 2 May 2005.

The tenant has the sole use of own room and shared use of the communal areas of the premises. The communal area is defined as:

Lounge
Kitchens
Dining area
All halls and passages
All bathrooms and WC

Permitted number [1]."

5. Clause 2 provided (so far as directly material) as follows:

"2. Rent

a. The weekly charge for the premises at the date of this agreement shall be

Rent	£61.74
Property Services	£38.31
Support Charges	£73.28
Tenant Fuel Contribution	£0.00
Total Weekly	£173.33

b. The total weekly charge is due in advance on Monday of each week.

c. The rent includes an element for the provision of services (property/support).

This is per week

£111.59

The services to be provided are contained within schedule one of the agreement."

6. By Clause 4g of the tenancy agreement PFL agreed to "provide the or arrange (sic) the services listed in schedule one of this agreement in order to support the tenant to meet their obligations set out in section 5 of this agreement." By Clause 5n the Claimant agreed "not to allow the premises to be occupied by more than the permitted number specified in Clause 1 of this agreement." By Clause 6 it was provided that the tenant has the right "to occupy without interruption or interference from the landlord for the duration of this tenancy (except for rights of access defined within the agreement) so long as the tenant complies with the terms of this agreement and has proper respect for the rights of other tenants and neighbours."
7. Schedule 1 to the tenancy agreement is as follows:

PARTNERS FOUNDATION LTD		Single room
RENT SCHEDULE		Schedule
[Claimant's name]	[Address of property]	02/05/2005
		amount
Property rent	Core rent	61.74
	Landlord management and maintenance services	38.31
Telephone	Provision and services	0.00
Furniture	Provision/repair	0.00
Fuel	For all common areas	0.00
Garden maintenance	Maintenance and annual planting	0.00
Cleaning	Common areas	0.00
	Subtotal	100.05
Support costs	Arranging contractors for tenants	0.00
	Adaptations for disability	0.00
	Arranging servicing of tenant's appliances	0.00
	Rental liability – claiming benefits	15.09
	Assistance with budgeting and debt counselling	0.00
	Maintain the property in an appropriate condition	0.00
	Support in resettlement activities	0.00
	Provision of sleep in/support room	58.19
	Liaison	0.00
Ineligible fuel costs	Tenants fuel contribution	0.00
	Subtotal	73.28
Total	Total weekly rent	173.33
Schedule 1 information	Rent	61.74
	Property Services	38.31
	Support charges	73.26
	Tenant fuel contribution	0.00
	Total Weekly	173.33
	Provision of services (property/support)	111.59
VAT information	Variable Costs within Eligible Rent	6.04
	VAT on rent	1.06
	Variable costs within ineligible support	9.52
	Vat on support	1.67

8. On the face of the tenancy agreement the Claimant was granted a tenancy solely of her own bedroom, together with a right to use the "communal area", namely all the remainder of the house other than the second bedroom. As regards that second bedroom, on the face of the tenancy agreement the Claimant was granted no rights in respect of occupation or use of it, but was required to pay a "support charge" in respect of "sleep in/support room" of £58.19 per week. The intention was plainly that the second bedroom should be used, as it has in fact been used, by the persons providing overnight care, supervision and support.
9. The decision under appeal to the Tribunal was stated in the Council's submission to the Tribunal to be one made by the Council on 19 February 2006 to the effect that the sum of £58.19 payable by the Claimant in respect of the second bedroom was not eligible for housing benefit.

The relevant legislation

10. I was informed by the parties' advocates at the hearing before me that at the time material to this appeal the Claimant's accommodation had been treated by the Council and the Claimant as "exempt accommodation" within the definition in reg. 10(6) of the Housing Benefit (General) Amendment Regulations 1995. The significance of that was to bring into play the saving provision in regulation 10(1) of those Regulations. That provided that "the eligible rent of a person ....... 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 [Housing Benefit (General) Regulations 1987] as in force on 1 January 1996 but as if any references to benefit period were references to an award of housing benefit."
11. The bulk of the care, support and supervision provided to the Claimant (i.e. the cost of employing the persons who provide that care, support and supervision and who may use the second bedroom) is not provided by PFL, the Claimant's landlord. I understand that the status of the Claimant's accommodation as "exempt accommodation" has now been put in issue by the Council (and indeed is to be determined by a First-tier tribunal on a date to be fixed), but only in respect of periods later than that with which this appeal is concerned. I understood it to be accepted on behalf of the Council that this appeal falls to be determined on the footing that the Claimant's accommodation was at the times material to this appeal "exempt accommodation". I am not clear as to precisely what has caused the Council now to adopt a different approach, but I do not think that it matters for the purpose of this appeal.
12. The broad effect of the provisions which were introduced with effect from 2 January 1996 was to restrict the amount of a claimant's rent eligible for housing benefit to the amount determined by a rent officer. The broad effect of the saving provision for "exempt accommodation" is therefore to exempt a claimant from that restriction. Broadly, rent in respect of "exempt accommodation" can therefore only be reduced by the paying authority if it can show that that there is suitable cheaper accommodation available to the claimant and it is reasonable to expect him to move. Included in the papers in this appeal is correspondence from the Council referring to rent officer determinations. As I understand it, it is accepted on behalf of the Council that, for the purposes at any rate of this appeal, those determinations are irrelevant.
13. As at 1 January 1996 regulation 10 of the Housing Benefit (General) Regulations 1987 provided (so far as material) as follows:

"10(1) Subject to the following provisions of this regulation, the payments in respect of which housing benefit is payable in the form of a rent rebate or allowance are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home –

(a) payments of, or by way of, rent;

(b) payments in respect of a licence or permission to occupy the dwelling;

(c) payments by way of mesne profits or, in Scotland, violent profits;

(d) payments in respect of, or in consequence of, use and occupation of the dwelling;

(e) payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends;

(3) …………the amount of a person's eligible rent shall be the aggregate of such payments specified in paragraph (1) as he is liable to pay less -

(a) ………………………; and

(b) where payments include service charges which are wholly or partly ineligible, an amount in respect of the ineligible charges determined in accordance with Schedule 1;

(7) In this regulation and Schedule 1 -

"service charges" means periodical payments for services, whether or not under the same agreement as that under which the dwelling is occupied, or whether or not such a charge is specified as separate from or separately identified within other payments made by the occupier in respect of the dwelling; and

"services" means services performed or facilities (including the use of furniture) provided for, or rights made available to, the occupier of a dwelling."

Schedule 1 (headed "ineligible service charges") provided (so far as material) 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 –

(i) ……….meals (including the preparation of meals or provision of unprepared food);

(ii) laundry (other than the provision of premises or equipment to enable a person to do his own laundry);

(iii) leisure items such as either sports facilities (except a children's play area), or television rental and licence fees (except radio relay charges, charges made in respect of the conveyance and the installation and maintenance of equipment for such conveyance of a television programme service where in respect of the claimant's dwelling the installation of such equipment is the only practicable means of conveying satisfactorily a television broadcasting service which is not a domestic satellite service ……………;

(iv) cleaning of rooms and windows (other than communal areas) except where neither the claimant nor any member of his household is able to clean them himself;

(v) transport;

(b) charges in respect of –

(i) the acquisition of furniture or household equipment; and

household equipment will become the property of the claimant by virtue of an agreement with the landlord;

(c) charges in respect of the provision of an emergency alarm system, except where such a system is provided in accommodation which is occupied by elderly, sick or disabled persons and such accommodation, apart from the alarm system, is either

(i) specifically designed or adapted for such persons, or

(ii) otherwise particularly suitable for them, having regard to its size, heating system and other major features or facilities;

(d) charges in respect of medical expenses (including the cost of treatment or counselling related to mental disorder, mental handicap, physical disablement, or past or present alcohol or drug dependence);

(e) charges in respect of the provision of nursing care or personal care (including assistance at meal-times or with personal appearance or hygiene);

(f) charges in respect of general counselling or other support services (whether or not provided by social work professionals) except those related to the provision of adequate accommodation or those provided by the landlord in person or someone employed by him who spends the majority of his time providing services for which the charges are not ineligible under the terms of this paragraph;

(g) charges in respect of any services not specified in sub-paragraphs (a) to (f) which are not connected with the provision of adequate accommodation."

2(1) ……where an ineligible service charge is not separated from or separately identified within other payments made by the occupier in respect of the dwelling, the appropriate authority shall apportion such charge as is fairly attributable to the provision of that service, having regard to the cost of comparable services and such portion of those payments shall be ineligible to be met by housing benefit."

The Council's decision

14. The Council's decision of 19 February 2006 under appeal was that only the first two weekly sums specified in Clause 2 of the tenancy agreement (i.e. £61.74 for "rent" and £38.31 for "property services") qualified for payment of housing benefit. The sum in respect of "property services" is referred to in the Rent Schedule as "landlord management and maintenance services". As I understand it that will have been accepted as eligible either on the basis that it is "rent" within reg. 10(1)(a), or (more probably) on the basis that it is an eligible service charge.
15. The sum of £73.28 for "support services" in Clause 2 of the tenancy agreement was broken down in the Rent Schedule into £15.09 for "rental liability – claiming benefits" and £58.19 for "provision of sleep in/support room". I presume that the former sum is for assistance intended to be provided to the Claimant in respect of claiming benefits. I am not concerned with it in this decision. The Claimant's appeal was in respect of the Council's decision that the £58.19 was not eligible for housing benefit.

The Tribunal's decision

16. The Tribunal held an oral hearing, at which the Claimant's mother (her appointee) and an employee of PFL gave evidence.
17. The Tribunal allowed the Claimant's appeal, holding that the sum of £58.19 in respect of providing the sleep in accommodation was eligible for housing benefit.
18. Mr Ennals on behalf of the Claimant had put forward two arguments in his written submission to the Tribunal. The first argument was that the description of the £58.19 in the tenancy agreement was "inappropriate" and that "the charge in respect of the additional room in the property is more properly seen as part of the ordinary rent for the property." It was submitted that the tenancy agreement was inappropriately worded because it was a standard form agreement designed for shared accommodation:

"[The Claimant] is and has always been the only tenant and occupant of the house. She is and always has been the tenant of the entire property, with exclusive possession of the whole property. .......................It is important to make clear that the carers enter [the Claimant's ] home, and use the spare room, as her direct employees, and with her express permission. Evidence will be provided from PF staff that it has always been recognised that the tenancy agreement does not reflect the reality of the arrangement, and that [the Claimant] has always been the tenant of the entire property."

19. In the alternative, if the charge was to be regarded as a "service charge", Mr Ennals submitted that it did not fall within any of the categories of ineligible service charge in Schedule 1 to the 1987 Regulations.
20. There was in evidence before the Tribunal a statement from the landlord's tenant liaison officer, which referred to a visit which she had made to the Claimant's parents on 28 June 2007 in order to clarify the Claimant's rights and duties in relation to the accommodation, and continued:

"I explained to [the Claimant's parents] that [the Claimant's] tenancy agreement was misleading in the use of the term communal area, which cannot exist in a property for one person. I explained that prior to 2005, when [the Claimant] took up her tenancy, properties for one tenant were an exception for PFL. However, since 2005, we had recognised this discrepancy and had introduced a tenancy agreement for sole tenants. We agreed that [the Claimant's] tenancy was, and had always been, of the whole house, and was not limited to only part of the property."

21. The Tribunal accepted Mr Ennals' primary contention, and so allowed the Claimant's appeal. It said in paragraph 7 of the Statement of Reasons that the charge of £58.19 was "in reality rent." In paragraph 8 it elaborated on that as follows:

"In looking at the position as a whole it seemed clear to the tribunal, after considering the authorities, that this accommodation was provided for [the Claimant] and for her sole occupancy. There were no common areas. It did however provide an extra room which could be used by sleep-in support staff. [The Claimant's mother], in her evidence to-day, informed the Tribunal of [the Claimant's] need for 24 hour supervision and that if left unsupervised she was very vulnerable and would wander. If the support was not on a 24 hour basis then she could not enjoy independent living. The tribunal accepted that evidence, which in any event was not challenged by the Local Authority. The extra room therefore was used by an overnight supervisor who needed to be in the building. It therefore appeared to the tribunal that it was necessary accommodation to enable [the Claimant] to live independently. In that sense it was, in the view of the tribunal, a necessary charge as the extra room was needed for [the Claimant's] specific need for night-time supervision. In analysing the way that the charges had been laid out to the Local Authority when the claim for the benefit was made it seemed to the tribunal that there had been an artificial separation of the charge for the room and the rest of the accommodation. In the view of the tribunal it need not have been made. Mr Shanks [the employee of the landlord who gave oral evidence] gave evidence to the tribunal that the £58.19 had been calculated by looking at a charge for the property as a whole and then dividing the appropriate square footage of one room in proportion to the rest of the accommodation which gave an independent charge for one room of £58.19. This seems to have been brought about perhaps by the naivety of the landlords when dealing with single occupancy accommodation which they were unaccustomed to at the time. In the view of the tribunal this was a charge for an extra room in the accommodation and this was an appropriate charge because of the need for this particular tenant to have 24 hour care. In that regard the tribunal took into account paragraph 17 on page 9 of Commissioner's decision CIS/1460/95."

Analysis and conclusions

22. A number of points can be made as regards the distinction between payments which are "rent" within regulation 10(1)(a) and payments which are "service charges" within regulation 10(1)(e).
23. First, the opening words of regulation 10(1) state that the payments in respect of which housing benefit is payable are the following payments which a person is liable to make "in respect of the dwelling which he occupies as his home." It may therefore be important to identify precisely what that dwelling consists of.
24. Secondly, the description which the parties give to a payment in the tenancy agreement cannot be conclusive as to whether it is to be viewed as "rent" or as a "service charge" for the purpose of regulation 10 and Schedule 1. That is apparent from the part of the definition of "service charges" in reg. 10(7) which states that the definition applies "whether or not such a charge is specified as separate from or separately identified within other payments made by the occupier in respect of the dwelling." In other words, if, for example, the tenant is required to pay a sum by way of "rent" which in fact includes amounts in respect of services to be provided by the landlord, those amounts will be "service charges." See also para. 2(1) of Schedule 1, from which a similar point emerges.
25. Thirdly, Mr James rightly accepted that if in the present case there had been a simple letting of the whole house to the claimant at a rent of £119.93 per week (i.e. the "core rent" of £61.74 plus the £58.19 for the second bedroom) it would have been clear that the entirety of that sum was "rent" and was eligible for housing benefit. To have drafted the tenancy agreement in that form would not have been contrary to any policy embodied in the legislation. Even though the intended use of the second bedroom was to accommodate a person providing care and support, there is no reason why the landlord could not simply have let the whole house, including the second bedroom, to the Claimant. The second bedroom would then clearly have been part of the "dwelling which [the claimant] occupies as his home."
26. Fourthly, the primary distinction between "rent" and a "service charge" is that the former is a sum payable as consideration for the right to occupy the property which is let, whereas the latter is a payment for services to be provided by the landlord. However, "services", as defined in reg. 10(7), includes not only services performed for, but also "facilities (including the use of furniture) provided for, or rights made available to" the tenant. The provision of "facilities" or the making available of "rights" may include the granting of entitlement to use premises which are not included in the demised property. Some examples of payment for a right to use other premises being treated as a service charge are contained in the exceptions to the list of ineligible service charges in Schedule 1: see the references to the provision of premises to enable a person to do his own laundry and the provision of a children's play area.
27. Fifthly, in the case of shared accommodation, each tenant's rent normally comprises payment in respect of not only the premises of which the tenant is to have exclusive possession (i.e. usually simply his bedroom in this type of case) but also in respect of his entitlement, as an incident of his tenancy, to shared use of the common parts. For the purposes of regulation 10 the common parts are probably correctly regarded as part of the dwelling which the tenant occupies as his home, but even if they are not the rent is clearly payable "in respect of" the dwelling which he occupies, because it is necessary for him to use the common parts in order to make use of his bedroom as a dwelling. In the case where a bedroom is allocated for use by a support worker who is to provide care, support and supervision to all the tenants, I see no reason why an apportioned part of the appropriate rental charge in respect of the use of that room cannot properly be included as part of each tenant's rent. Indeed, it may well be that that is the more usual practice. If that is done, it could not in my judgment be argued that the charge in respect of that room was more properly a "service charge", and should be so treated for the purpose of regulation 10. It is true that each tenant's right in relation to the extra bedroom is not quite the same as it is in relation to the other common parts. In relation to the other common parts each tenant's right is to use them in person or to permit his invitees to use them. In relation to the extra bedroom each tenant's right is simply to permit a care provider (in effect the tenant's invitee) to use it. I would agree that the extra bedroom might well not be part of the "dwelling which he occupies as his home." But that fact would not in my view support an argument to the effect that a part of the rent (i.e. that part attributable to use of the extra bedroom) must be treated as a "service charge" for the purposes of regulation 10. It would in my judgment properly be regarded as a payment by way of rent "in respect of the dwelling which he occupies as his home."
28. As I have said, in the present case the tenancy agreement was on the face of it very clear in granting to the Claimant a tenancy not of the whole house, but rather of her bedroom, together with use of the "communal area", which did not include the second bedroom. The "core rent" included, as is usual, payment not only in respect of the Claimant's bedroom but also in respect of her use of the "communal area". The Claimant was required to pay, under the heading "support costs", a sum of £58.10 per week in respect of "provision of sleep in/support room." On the face of it the landlord retained possession of that room, subject to the requirement to allow it to be used by an overnight carer.
29. It was as a matter of law perfectly possible for the landlord to retain possession of the second bedroom with a view to making it available, on payment by the Claimant of the "support charge", to be used by persons caring for the Claimant. However, the difference between that situation and a situation in which the entire house was let to the Claimant with the charge for the second bedroom being included in the rent would not in practice (and ignoring housing benefit considerations) be very great. If the letting were of the entire house, it would be possible for the Claimant to use the second bedroom herself for whatever she wished (e.g. a hobby) if it were not needed for the carer (e.g. because the carer was prepared to sleep in the sitting room, or was happy to stay up all night). But it is in practice very unlikely that the Claimant would be able to make any significant use of the second bedroom anyway. Further, it could have been of little advantage to the landlord to exclude the second bedroom from the property let to the Claimant. The landlord would clearly not have been able to let it to anyone else, or to permit anyone else to use it, owing to the obligation to permit its use by carers.
30. In my view it is strongly arguable that, even taking the tenancy agreement at face value (i.e. on the footing that the second bedroom was not let to the Claimant, but was made available by the landlord for occupation by a carer in consideration of a "support charge"), the "support charge" of £58.10 was in reality a sum paid by the Claimant in respect of the use of a bedroom, and so should be regarded, for the purposes of regulation 10 and Schedule 1 as "rent" rather than as a "service charge". It is very arguably much more akin to a payment for occupation of the property than to a payment for a service or facility provided by the landlord. It is true that Schedule 1 contemplates that sums paid in consideration of a right to use premises such as a laundry room and a children's play area can be service charges, but that is arguably a very different matter from a right to have a room kept apart for occupation by a carer, whose sole purpose will be to look after the Claimant. However, having regard to the technical nature of "rent" in the landlord and tenant context, and to the apparently very deliberate description of the sum as a "support charge" in the agreement, I consider on balance that, looking simply at the tenancy agreement in the light of the intended use of the second bedroom, the obligation to pay the £58.19 per week would have to be regarded as a "service charge", within the classification in regulation 10.
31. In my judgment it is then possible to escape from that conclusion only if there was evidence satisfying the tribunal that the terms of the tenancy agreement did not accurately represent the parties' intention. The evidence would in my view need to be such that rectification of the tenancy agreement could be obtained, if it were sought in contested proceedings. (I do not think that it would be necessary for the parties actually to obtain an order for rectification before this sort of evidence could be taken into account). The Tribunal referred in para. 3 of the Statement of Reasons to the fact that the landlord had accepted, in its tenant liason officer's statement of 28 June 2007 (see para. 20 above), that an inappropriate form of agreement had been used. That letter went on to say that the tenancy had always been intended to be of the whole house. In para. 8 the Tribunal concluded that it was clear that "this accommodation was provided for [the Claimant] and for her sole occupancy. There were no common areas." I accept Mr Ennals' submission that the Tribunal's reasoning was tantamount to saying that the precise form of the tenancy agreement did not represent the parties' intentions, (and so was an agreement of which the parties to it could have obtained rectification to make it simply a letting of the whole house at a rent which included the £58.19). In my judgment the Tribunal was entitled to make that finding, on the evidence before it. Having made that finding, the Tribunal was in my judgment right to conclude that the Claimant's entitlement to housing benefit was required to be decided on the footing that the extra room had been comprised in the tenancy, and that the payment in respect of it was therefore properly to be regarded, for the purposes of regulation 10, as rent.
32. The Tribunal did not go on to consider Mr Ennals' alternative submission, but I have had argument on it, and I shall therefore do so. The question is whether, on the footing that the £58.19 was a "service charge", it was an ineligible service charge within Schedule 1. In my judgment it was not a charge "in respect of the provision of nursing care or personal care" within para. 1(e) or a charge "in respect of general counselling or any other support services" within para. 1(f). Plainly, the person sleeping in the room would provide both "personal care" and "support services". However, those services are not provided by the landlord. The carer is employed and paid for by others.
33. Although the words "in respect of" are capable of having a very wide meaning, their precise meaning must depend very much on the context. I do not think that in this context the charge in respect of a room in which a person employed and paid for by others to provide care and support services will sleep is a charge "in respect of" personal care or support services. In my judgment it is a charge in respect of the provision of a room. Having regard to the wide definition of "services" in reg. 10(7), however, the charge is ineligible under para. 1(g) unless it is "connected with the provision of adequate accommodation." In my judgment it is reasonably clear that it is connected with the provision of adequate accommodation. Accommodation with only one bedroom would have been unsuitable for the Claimant's purposes. As Mr Commissioner Mesher concluded in para. 17 of the common Appendix to CIS/1459/1995, "the question of connection with the provision of adequate accommodation under paragraph 1(g) should not be confined to the character of the accommodation, but should take account of the personal needs of the residents."
34. At the outset of its written submission in this appeal the Council said that "in effect the sole issue ….is whether an element of the rent amounted to a charge for care and support (as the [Council] contends) or was an accommodation charge (as argued by the Appellant)." One can discern in regulation 10 and Schedule 1, in their 1 January 1996 form, a general policy that charges in respect of personal care and support should not (save in relation to certain support charges) be eligible for housing benefit. However, whilst that policy undoubtedly covers the actual cost of paying for the care provider, it does not seem to me that it covers, in the case where sleep-in support is required, the cost of additional accommodation necessary to provide that support. As I have said, if the extra bedroom had been included in the demised premises, it could not have been argued that the part of the rent attributable to the second bedroom was ineligible for benefit. Similarly, if there had been other bedrooms in the property also let to persons in need of overnight support, and if each tenant's rent had included a proportionate part of the cost of the additional bedroom, it could not in my judgment have been argued that that part of the rent was for the purposes of regulation 10 a "service charge", and furthermore an ineligible one.
35. It is argued in the Council's written submission that the provision of a room for a carer to sleep in is just as much a part of the care package as the services that the carer provides. However, for the reasons which I have just given, it does not seem to me that that is so, at any rate for regulation 10 purposes.

Charles Turnbull

Judge of the Upper Tribunal

10 February 2009