IN THE UPPER TRIBUNAL Case No.  CH/1984/2010

(ADMINISTRATIVE APPEALS CHAMBER)

Decision

The local authority’s appeal against the decision of the First-tier Tribunal of 1^st March 2010 succeeds for the reasons set out below.  I set that decision aside and, as I can do so without making further findings of fact, I remake it as follows:

‘The appeal is allowed.  The additional weekly amount of £5.30 charged to the claimant from 9^th May 2009 is eligible for housing benefit as it is a payment of rent.’

The appeal

1.             The appeal relates to housing benefit (‘HB’) and is an appeal by the local authority against a decision of the First-tier Tribunal that the claimant was entitled to HB in respect of the sum of £5.30 a week charged from 9^th May 2009.

Background

2.             The claimant is a 66 year old woman who lived alone in a two-storey property which she rented from a housing association.  She was in receipt of HB.

3.             After a spell in hospital the claimant was assessed by an occupational therapist who recommended that a stair lift be provided for her on her return home to enable her to get upstairs to the bathroom.

4.             The claimant’s landlord installed a stair lift in the property and increased the rent by £5.30 a week ‘due to the installation of a stair lift’ (see letter from the head of Revenue Service at PCC to the claimant dated 16^th July 2009 at page 4 of the bundle before me).

5.             On 16^th July 2009 PCC decided that the additional weekly charge was not eligible for HB and informed the claimant.

6.             On 26^th August 2009 PCC wrote to the claimant explaining that, in their view, the additional weekly amount was ineligible for HB as it was a service charge which was not charged ‘in connection’ with the provision of adequate accommodation as required by the HB legislation (see page 9 of the bundle).

7.             The claimant appealed.

8.             On 1^st May 2010 the tribunal allowed the claimant’s appeal on the grounds that the additional weekly amount was for the provision of adequate accommodation.  The claimant needed a stair lift to access the upstairs of the property and without being able to do so the accommodation would be inadequate for her needs.

9.             PCC appeals, out of time, against the decision of 1^st March 2010 with leave of a tribunal judge.  The grounds of appeal are that the additional weekly charge is an ineligible service charge for the purposes of the HB legislation as it is not connected with the provision of adequate accommodation.

The legal framework

10.         An appeal to a Judge of the Upper Tribunal will be successful only if the decision of the First-tier Tribunal is erroneous in point of law.

11.         HB is governed by section 130 of the Social Security Contributions and Benefits Act 1992.  This provides:

‘(1) A person is entitled to housing benefit if-

(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home’.

12.         Section 130(2) provides:

‘(2) In subsection (1) above “payments in respect of a dwelling” means such payments as may be prescribed.

13.         Regulation 12 of the Housing Benefit Regulations 2006 is made under that authority. Regulation 12(1) provides:

‘(1) Subject to the following provisions of this regulation, the payments in respect of which housing benefit is payable … 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;

…

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

14.         Regulation 12(8) contains the relevant definitions:

‘(8) In this regulation and Schedule 1 (ineligible service charges)-

“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.’

15.         Schedule 1 identifies ineligible service charges. Paragraph 1(g) is a longstop provision:

‘(1) The following service charges shall not be eligible to be met by housing benefit-

…

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

16.         Finally, regulation 12(3) is relevant:

‘(3) Subject to paragraphs (4), (5) and (7), the amount of a person’s eligible rent shall be-

(a) the maximum rent …; or

(b) except where sub-paragraph (a) applies, the aggregate of such payments specified in paragraph (1) as that person is liable to pay less-

…

(ii) 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’..

The tribunal decision

17.         The first question to be answered by the tribunal was, is the additional weekly amount a ‘service charge’ as defined in regulation 12(8)?  If the additional weekly amount was not a service charge it could be taken into account as part of the rent under regulation 12(1)(a) if it related to a matter that was properly considered in setting the rent.  The tribunal did not consider this first question and for that reason is wrong in law.

18.         If the payment was a service charge, the second question was: is the charge ineligible under Schedule 1? If it was ineligible, it had to be disregarded under regulation 12(3)(b) and could not be treated as part of the contractual rent.

19.         The stair lift once installed became part of the property in respect of which the claimant was obliged to pay rent.  The additional weekly amount was not a payment for additional services or facilities provided or made available to the claimant as occupier of the premises.  It was a rent increase resulting from an enhancement of the demised premises.

20.         For the reasons set out in paragraphs 17 to 19 above the tribunal’s decision was wrong in law.  I set it aside and, as I can do so without making further findings of fact, I remake it as follows:

‘The appeal is allowed.  The additional weekly amount of £5.30 charged to the claimant from 9^th May 2009 is eligible for housing benefit as it is a payment of rent.’

(signed on the original)

A L Humphrey

Upper Tribunal Judge

23^rd May 2011