Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1997] NISSCSC C63/97(DLA) (24 September 1999)

 


Decision No C63/97(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (CONSEQUENTIAL PROVISIONS) (NORTHERN IRELAND) ACT 1992 SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998 DISABILITY LIVING ALLOWANCE Appeal to the Social Security Commissioner on a question of law from a Tribunal's decision dated 4 August 1997 DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. This is an appeal by Mr B... against a decision dated 4 August 1997 of a Social Security Appeal Tribunal (hereinafter called "the Tribunal") sitting at Belfast. Leave was granted by the Tribunal Chairman. That Tribunal had disallowed Mr B...'s appeal against a decision of an Adjudication Officer. That officer had decided that the care component of Disability Living Allowance would not be payable to Mr B... from 27 September 1995 although his underlying entitlement thereto remained.
2. My decision is as set out in the final paragraph of this document.
3. The facts of the case are that Mr B... whose date of birth is 1 July 1977 was awarded the highest rate of care component of Disability Living Allowance from and including 2 July 1993 (this was on foot of a renewal claim). Mr B... commenced living at the Blue Peter Bungalow, 30 Upper Malone Road, Belfast on 29 August 1995.
4. The accommodation charges, the operational structure, the admission criteria, the organisational arrangements and the services provided within the Blue Peter Bungalow were described in the document headed:-

"NICOD

BLUE PETER BUNGALOW, 30 UPPER MALONE ROAD, BELFAST.

OPERATIONAL POLICY".

Mr B...'s conditions of tenancy were contained in the document headed "Tenancy Agreement"

5. Mr B... enrolled in a course of full-time education at Belfast Institute of Further and Higher Education on 9 September 1996. He was awarded a student award of fees plus, it appears, an element for maintenance. He was in receipt of an award through the academic year 1996/97. As a result of the award he was not in receipt of Income Support for part of the period before the Tribunal.
6. On 1 May 1996 the Adjudication Officer reviewed and revised the decision of 5 April 1993 to state that the care component of Disability Living Allowance would not be payable to Mr B... from 27 September 1995 (28 days after his occupancy of the Blue Peter Bungalow) because from the start of his occupancy of the bungalow, the Foyle Community Trust (hereinafter called "the Trust") paid the sum of £69.39 a week to NICOD in respect of Mr B....
7. The reason for the Adjudication Officer's decision was given as being that Mr B... was "a person for whom accommodation is provided and the cost of accommodation is borne wholly or partly out of public or local funds for a period or periods totalling more than 28 days and he does not have a preserved right nor can he benefit from the prescribed exceptions."
8. The Adjudication Officer referred to section 72(8) of the Social Security Contributions and Benefits Act (Northern Ireland) and section 71 and 72(1)(b)(i) of that Act. He also referred to regulations 8, 9(1)(b) and 10 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 (hereinafter called "the Regulations").
9. Mr B... appealed against the decision to the Tribunal, and the Tribunal disallowed the appeal.
10. The Tribunal set out its reasons in a very clear and comprehensive record and it is apparent that it has given careful consideration to the matter.
11. The Tribunal stated that it could make no finding on the applicability of Regulation 9(1)(b) to the appeal as it was unable to ascertain the authority for the payments made to the Northern Ireland Council On Disability (hereinafter called "NICOD") by the Trust with relation to Mr B.... The Tribunal considered that it could dispose of the appeal by applying other legislative provisions, and in fact applied regulation 9(1)(c). It found that the claimant was a person for whom accommodation was provided in circumstances where the cost of the accommodation might be borne wholly or partly out of public or local funds in pursuance of the Health and Personal Social Services (Northern Ireland) Order 1972. It concluded that the accommodation in which the claimant resided could not be described as a private dwelling and that therefore regulation 9(1)(c) applied and the exemption at regulation 9(8) could not apply. It therefore found that the Adjudication Officer on 12 September 1996 had grounds to review but not to revise the earlier decision of the Adjudication Officer dated 1 May 1996 to the same effect. It decided that the appellant was entitled to the higher rate of the mobility component and the highest rate of the care component from 2 July 1993 but the care component of Disability Living Allowance was not payable from and including 27 September 1995.
12. The Chairman granted leave to appeal to Mr B....
13. The grounds of appeal were set out in an OSSC1 (NI) form dated 21 October 1997. Central Adjudication Services representing the Adjudication Officer made observations on the appeal by letter dated 23 June 1998 and further observations were offered by the Law Centre (NI) (representing Mr B...) by letter dated 3 August 1998. Central Adjudication Services made further comment by letter dated 10 November 1998. In response to my request, both representatives addressed me on certain further issues by letters dated 25 January 1999 from the Law Centre (NI) and 15 February 1999 from Central Adjudication Services.
14. I held an oral hearing of the appeal on 19 March 1999 which was attended by Mr Stockman of the Law Centre (NI) representing the claimant, who did not attend, and by Mr Shaw of Central Adjudication Services representing the Adjudication Officer. I am obliged to both gentlemen for their very considerable assistance in this matter. After the hearing I requested, by letter of 7 April 1999, that certain evidence be obtained as to what items were included in the weekly sum of £69.39 paid to NICOD by Foyle Community Trust (through whom the Western Health & Social Services Board acted). I also requested information on how this sum of £69.39 was calculated and in particular what specific matters the Trust and NICOD respectively understood it to cover. I received a reply from Mr Stockman by letter of 10 June 1999. I understand in response to queries made by this office that neither party had any further observations to make and that both were happy that I now proceeded to decision, Mr Shaw having seen the enclosures with Mr Stockman's letter of 10 June 1999.

The grounds of appeal.

In essence the claimant's substantive grounds of appeal were twofold:-

(1) That the Tribunal had erred in its interpretation of the term "private dwelling" in the context of regulation 9(8) of the Disability Living Allowance Regulations (hereinafter called "the Regulations"), and that Mr B...'s accommodation in the Blue Peter Bungalow was in a private dwelling.

(2) That the Tribunal had erred in its construction of regulation 9(1)(c) in light of the decision of the House of Lords in the case of Steane -v- Chief Adjudication Officer and Another (24 July 1996).

As regards ground 1 above, Mr Stockman submitted that the Tribunal erred in law in bringing into its consideration of whether or not the claimant's accommodation was a private dwelling, the method by which the charges were met and the degree of ancillary care provided. He submitted that the nature of the charges was only relevant to the type of tenure enjoyed and that a rent charge coupled with other service charges was not inconsistent with a private tenancy. Mr Stockman stated that many disabled people received intensive domiciliary care in their own homes and that this did not alter the nature of the dwelling.

Mr Stockman further submitted that the term "private dwelling" was used to distinguish the nature of the claimant's accommodation from residential accommodation or institutional accommodation. The fact that no staff resided on the premises, that the degree of sharing was not inconsistent with any similar accommodation where young persons shared a flat, and the nature of the premises themselves all indicated that the accommodation was a private dwelling.

Mr Shaw submitted that there was no definition of the term "private dwelling" either in the Regulations or in any of the associated legislation. The term was not used in any unusual sense and the Tribunal having taken full account of the relevant facts had reached a reasonable conclusion. Mr Shaw submitted, citing Lord Reid's judgment in Brutus -v- Cozens [1972] 2 All ER, that the meaning of an ordinary word in the English language was not a matter of law. He cited, in particular, a paragraph from page 1299:-

"it is for the tribunal which decides the case to consider, not

as law but as fact, whether in the whole circumstances the words

of the statute do or do not as a matter of ordinary usage of the

English language cover or apply to the facts which have been proved.

If it is alleged that the tribunal has reached a wrong decision

then there can be a question of law but only of a limited character.

The question would normally be whether their decision was

unreasonable in the sense that no tribunal acquainted with the

ordinary use of language could reasonably reach that decision."

As regards the second ground of appeal (ie that the Tribunal had erred in its construction of the Regulations in light of the House of Lords decision in Steane), Mr Stockman submitted that it was a principle of administrative law that discretion must be exercised on proper legal grounds and in accordance with the policy of the legislation. He submitted that as Mr B... was suitably and adequately accommodated it would have been an abuse of the statutory power contained in Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 for the Western Board to provide accommodation for him. He therefore submitted that the power to accommodate under Article 15 could not be lawfully exercised in such a case and therefore regulation 9(1)(c) should be interpreted as if there was no power to bear the cost of the appellant's accommodation.

As regards the case of Steane, Mr Stockman submitted that their Lordships accepted that regulation 9(1)(c) applied where there was a relevant statutory power to pay for accommodation regardless of whether arrangements had been made by the relevant authority to place an individual in accommodation. Mr Stockman acknowledged that there was a difference in the legislation between Article 15 of the Health and Personal Social Services Order (Northern Ireland) 1972 and equivalent provision applicable in England ie. section 21 of the National Assistance Act 1948. Both legislative provisions placed on relevant authorities a duty to make available advice, guidance and assistance to the extent considered necessary for persons in need of care and attention and for that purpose, the relevant authority was given power "to provide or secure the provision of such facilities, (including ... accommodation)" as it considered suitable and adequate. The legislation applicable in England however, contained the qualification that the person must be in need of care and attention which was not otherwise available and that condition was missing from Northern Ireland legislation. The House of Lords in Steane took the view that the power to provide accommodation or to secure its provision did not apply to Mrs Steane as she was not a person who was in need of care and attention not otherwise available to her, as long as she resided in the residential care home where she was then living.

Mr Shaw submitted that Article 15 had no such qualification and consequently there was power under that Article to assist Mr B... with the costs of the accommodation and he was therefore caught by regulation 9(1)(c). The policy intention was that there should be no duplication of either responsibility or costs between central and local government for the provision of care to vulnerable people. Regulation 9(1)(c) fulfilled that intention. Mr Shaw submitted that the Scottish equivalent to Article 15 in Northern Ireland had no qualification such as existed in the legislation applicable in England.

Other issues were raised in the course of the hearing. For clarity's sake I have numbered them consecutively with the grounds of appeal.

(3) The Tribunal had made what appeared to be a technical error in recording that Mr B... was "not entitled to the care component of Disability Living Allowance from and including 27 September 1995." In fact the question at issue was payability only, and it was apparent that this alone was what the Tribunal dealt with. Both parties were agreed that there was an error in that respect, albeit of a technical nature.

(4) Mr Shaw submitted that there was an error in the Tribunal's failure to determine whether or not regulation 9(1)(b) applied to prevent payment of benefit. Mr Shaw submitted that a finding determining the specific legislation under which the Trust made its payments was not necessary. All that had to be determined under regulation 9(1)(b) was that payments were made under the Health and Personal Social Services Order (Northern Ireland) 1972 or under any other enactment relating to persons under disability, education or training. He submitted that there was sufficient evidence for the Tribunal to proceed to make a finding on the balance of probabilities that the payments were made under a provision as delineated in regulation 9(1)(b).

Mr Shaw submitted that if it was in order to rely on the "may be" provision in regulation 9(1)(c) where the accommodation was being paid for by a public body, then that would make regulation 9(1)(b) redundant. Similarly there would be no need for regulation 9(1)(a). Therefore, he submitted that regulation 9(1)(b) only applied where regulation 9(1)(a) did not apply and regulation 9(1)(c) only applied where both regulation 9(1)(a) and regulation 9(1)(b) did not apply. It could never be correct in his submission to go straight to regulation 9(1)(c). The Tribunal is his view had erred in so doing. Mr Stockman made no submissions specifically on this point.

(5) Mr Shaw further submitted that the Tribunal had erred in holding that regulation 9(1)(c) was the provision preventing payment of the care component. Regulation 9(1)(b) was the appropriate bar to payment because of the payments being made by the Trust. The decision should have relied on it alone. However, if the Tribunal had decided that the payments made by the Board were in respect of domiciliary services in a private dwelling and were therefore an exception under regulation 9(8)(a), then the provisions of regulation 9(1)(c) could be properly applied. Mr Stockman made no submissions specifically on the point.

(6) At my own request both parties made submissions on the application of regulation 9(1A) to Mr B...'s situation. I deal with this matter later in this decision.

15. The legislation in this case is contained in regulation 9 of the Regulations and I set out the relevant portions of that regulation underneath:-

"9.-(1) Except in the cases specified in paragraphs (1A) to (6),

and subject to regulations 9A and 10, a person shall not be paid

any amount in respect of disability living allowance which is

attributable to entitlement to the care component for any period

where throughout that period he is a person for whom accommodation,

not being accommodation to which regulation 8 refers, is provided-

(a) in pursuance of Article 5, 15 or 36 of the Order;

(b) in circumstances where the cost of the accommodation

is borne wholly or partly out of public or local funds

in pursuance of that enactment or of any other enactment relating to persons under disability or to young persons

or to education or training; or

(c) in circumstances where the cost of accommodation may be borne wholly or partly out of public or local funds in

pursuance of that enactment or of any other enactment

relating to persons under disability or to young persons

or to education or training.

(1A) Paragraph (1)(b) and (c) shall not apply in circumstances where

the cost of the accommodation is, or may be, borne wholly or partly

out of public or local funds by virtue of-

(a) Articles 50 and 51 of the Education and Libraries (Northern Ireland) Order 1986 (which relate respectively to the

provisions of awards by education and library boards and

by the Department of Education in relation to persons undergoing teacher training or postgraduate courses): or

(b) Article 3 of the Education (Student Loans)(Northern Ireland) Order 1990.

(2) N/A

(3) N/A

(4) N/A

(5) N/A

(6) Paragraph (1)(c) shall also not apply-

(a) where the person is living in accommodation as a privately fostered child;

(b) where he is a person for whom accommodation is made available for his occupation in accordance with Article 10 of the Housing (Northern Ireland) Order 1988 (duties of the Executive to persons found to be homeless);

(c) where the person himself pays the whole cost, and has always paid the whole cost, of the accommodation and

is a person to whom regulation 9A applies; or

(d) except in a case to which paragraph (7) applies, where the accommodation the person is living in is a private dwelling,

and for the purposes of this paragraph "privately fostered child" has the meaning assigned to it by Article 106(1) of the Children (Northern Ireland) Order 1995.

(7) Subject to paragraph (7A), this paragraph applies where-

(a) the cost of the accommodation the person previously occupied was borne in whole or in part out of public or local funds and where he was moved out of that accommodation at the instigation of the body which bore the cost into a residential care home; or

(b) the person is living is a residential care home and at least 3 other persons in that home are provided with board and personal care, excluding persons carrying on the home or employed there or their relatives,

(7A) Paragraph 7(b) shall apply in the case of a person to whom

regulation 9A does not apply as if the words from "and at least

3 other persons" to "their relatives" were omitted.

and for the purposes of this paragraph "residential care home" has

the same meaning as in Article 3 of the Registered Homes (Northern

Ireland) Order 1992.

(8) In this regulation, references to the cost of accommodation shall

not include the cost of-

(a) domiciliary services provided in respect of a person in a private dwelling;

(b) improvements made to, or furniture or equipment provided for, a private dwelling on account of the needs of a person under disability;

(c) improvements made to, or furniture or equipment provided for, residential homes or other homes or premises in respect of which a grant or payment has been made out of public or local funds except where the grant or payment is of a regular or repeated nature;

(d) social and recreational activities provided outside the accommodation in respect of which grants or payments are made out of public or local funds; or

(e) the purchase or running of a motor vehicle to be used in connection with the accommodation in respect of which grants or payments are made out of public or local funds."

16. As mentioned above, Foyle Community Trust did agree to pay £69.39 in respect of Mr B... and he did obtain Housing Benefit of approximately £129 per week.
17. Before the Tribunal and before me it was common case that regulation 9(1)(a) did not apply, in that Mr B... was not in accommodation provided pursuant to Article 5, 15 or 36 of the Health and Personal Social Services (Northern Ireland) Order 1972. I accept that regulation 9(1)(a) has no application to this case.
18. A preliminary issue was raised before me concerning the question of review, specifically whether the Adjudication Officer on 1 May 1996 had jurisdiction to review the Adjudication Officer's decision of 5 April 1993. The decision of 1 May 1996 purported to be a review decision. The Adjudication Officer had reviewed on the grounds of relevant change of circumstances (the move to the Blue Peter Bungalow) the earlier decision of 5 April 1993. That decision was that Mr B... was entitled to the care component of Disability Living Allowance at the highest rate from 2 July 1993. There were sections on the pro forma decision form dealing with payability. In the main they seemed to relate to situations where payability was in question or payment was not to be made. None of the relevant boxes were ticked. There was no express mention of payability. The decision did, however, contain a section headed "The law used to make this decision". Under that section the Adjudication Officer had written "Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992, Regulation 4(1)(a)". This appears to be a reference to a regulation providing for the weekly rates of the care component.

The regulation provides "The three weekly rates of the care component are- (a) the highest rate, payable in accordance with section 37ZB(4)(a)" of the Social Security (Northern Ireland) Act 1975. (Reference to section 37ZB was later replaced by section 72 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992).

Section 37ZB(4)(a) was also mentioned specifically by the Adjudication Officer as being "law used to make the decision". It provides that the weekly rate of care component is "payable to a person for each week in the period for which he is awarded that component".

As section 37ZB(4) was applied it appears to me that the decision of 5 April 1993 making the award was also deciding that payment should be made and at the appropriate rate.

The only provision by which the decision of 5 April 1993 could be reviewed by an Adjudication Officer was section 28 of the Social Security Administration Act (Northern Ireland) 1992. Section 28(7) requires an application with a view to review to be made in writing. The only possible document which could be possibly considered as an application in writing was the letter from Mr B... dated 30 August 1995 informing the Disability Living Allowance Branch of Mr B...'s move to the Blue Peter Bungalow.

I do not think this letter is in any way an application with a view to review. In no way was Mr B... seeking to have his award of Disability Living Allowance reconsidered. He was simply reporting a change of address. It therefore seems to me that the Tribunal was wrong to affirm the Adjudication Officer's review decision. It does appear to me however, that the Adjudication Officer did have jurisdiction to consider the matter of payability under section 18(1)(b) of the said Administration Act. The question of payability was one which fell for determination by an Adjudication Officer. Mr B...'s letter was submitted to the Adjudication Officer and the information contained in it did, though not expressly, raise a question of payability. I therefore consider that the matter was properly before the Adjudication Officer and therefore before the Tribunal albeit, as Mr Shaw said, the proper legislative route was not given to the Tribunal.

19. To come now to the substance of the appeal itself, I would wish to dispose first of the issue raised at ground (3) above. I do consider that there was an error here albeit obviously of the "slip of the pen" nature. The claimant remained entitled to the care component, that was not in question. The Tribunal's decision should have referred only to payability. I would not necessarily have set the decision aside on this ground alone, however, as it is quite apparent that the Tribunal, in disallowing the appeal against the Adjudication Officer's decision and thereby affirming that decision, was deciding solely on the question of payability.
20. As regards ground (4) above, I would have preferred the Tribunal to have dealt with regulation 9(1)(b) and (c) in that order (there being no issue as to the fact that regulation 9(1)(a) was inapplicable). It might be inconvenient and cause unnecessary appeals if a decision based solely on regulation 9(1)(c) was upset for reasons associated with regulation 9(1)(c), if that decision could have been sustained under regulation 9(1)(b) had it been applied. I do not, however, consider that in this case there was an error on the Tribunal's part in proceeding straight to regulation 9(1)(c). This was a case where the Tribunal was of the view that the claimant did not reside in a private dwelling and where it was also of the view that the relevant Board had power to bear all or part of the costs of the accommodation. What the Tribunal had to decide was whether or not Mr B... was to be paid the care component of Disability Living Allowance in light of the provisions of regulation 9. If it considered that any part of regulation 9 B...ed him, it was entitled to rest its conclusion on that part of the regulation without dealing with any other parts.
21. I do, however, consider that the Tribunal was wrong to consider that it was unable to reach a conclusion as to whether the payments referred to in regulation 9(1)(b) were made under any of the statutory provisions referred to therein. I agree with Mr Shaw that such a conclusion should have been reached on the evidence available. While there may be difficulties in determining precisely what statutory provision was being used, there appears no doubt both from the correspondence between the relevant Board and NICOD and from the nature of the payment made, that it was under a statute relating to persons under a disability. Before me, although it was not conceded before the Tribunal, Mr Stockman has conceded that point. I do not consider, however, in light of the Tribunal's conclusions on the "private dwelling" issue that the error went to the heart of its decision.
22. As regards ground (2), I do not consider that there is any merit in Mr Stockman's submission that the relevant Board was without lawful power to bear all or part of the cost of the appellant's accommodation in the Blue Peter Bungalow. Specifically I do not accept his point that the relevant Northern Ireland legislation should have read into it the words contained in the equivalent for England. I can see no reason why this should be done and indeed, as Mr Shaw submitted, the omission of those words from the Northern Ireland legislation may be deliberate with the intention that the relevant Board's discretion be not limited as would be that of the equivalent authority in England. It would have been a simple matter to insert the relevant phrase had the legislature wished to do so. I therefore consider that there is no merit in ground 2 and that the relevant Board did have power to bear the whole or part of Mr B...'s costs of accommodation in the relevant dwelling.
23. The issue of whether or not the Tribunal erred in finding that Mr B...'s accommodation was not in a private dwelling thus becomes central. It was ground (1) of Mr B...'s appeal. As Mr Shaw stated there is no express definition of what constitutes a "private dwelling" in the relevant legislation. Mr Shaw cited the case of Brutus -v- Cozens. That case is authority for the proposition that the meaning of an ordinary word in the English language is not a matter of law. The meaning of private dwelling is not what I have to decide in this case. The Tribunal did not purport to give any particular meaning to the phrase "private dwelling". What it did do was to apply that phrase to a particular set of facts (Mr B...'s occupancy of the Blue Peter Bungalow) and reach a conclusion that his accommodation was not in a private dwelling.
24. The Tribunal's reasons for concluding that the claimant did not live in a private dwelling were as follows:-

"In reaching this conclusion, the Tribunal is acutely aware

of the underlying philosophy of the Blue Peter Bungalow in

providing facilities which encourages the exercise of choice,

the fostering of independence and the promotion of individuality.

Those values are undoubtedly at the heart of a notion of "privacy"

and there are many aspects to the nature of the accommodation which

would encourage us to describe it as a private dwelling. However,

while according the greatest respect to those who reside at the Blue

Peter Bungalow, the Tribunal find that the accommodation provided

there cannot fall into the category of private dwelling. A number

of factors, including the nature of certain restrictions imposed by

the Tenancy Agreement, the method by which the charges for the accommodation are met and the essential degree of ancillary care

services available as of right within the facility, take it out of

the classification of private dwelling."

The Tribunal concluded for the reasons given at page 6 of its reasons for decision that the claimant was not in a private dwelling. It included in the reasons the method by which the charges for the accommodation were met. I am not quite sure what it meant. If the Tribunal meant that charges were being met out of public funds that is irrelevant in determining whether or not a person lives in a private dwelling. That question is essentially dependent on the nature of the occupation and the nature of the dwelling. In addition in the context of the Regulations the matter of how charges are met appears to be quite separate from whether or not a person lives in a private dwelling. It is quite apparent from regulation 9(1), and 9(6)(d) that the cost of the accommodation being met, or able to be met by public or local funds, is not relevant to whether or not that accommodation is in a private dwelling. If it was then there would be no need for regulation 9 nor would regulation 9(6)(d) make any sense. However, as set out below, I think the Tribunal was referring to other aspects.

The Tribunal has also mentioned "certain restrictions imposed by the Tenancy Agreement" as taking the accommodation out of the category of a private dwelling. I am not quite certain what is meant by this. The section of the Tenancy agreement headed "Responsibilities of each Tenant, jointly with Other Tenants" contains no restrictions which are in any way unusual so as to remove the dwelling from the category of private dwelling.

It appears to me that what the Tribunal was referring to was the section in the Agreement headed "Accommodation charges". I think that the Tribunal was also referring to the section in its allusion to the method by which the charges for the accommodation were met. It would not be part of most tenancy agreements that the landlord would be interested in the source from which rental and services charges were to be paid, other than to ensure that payment would take place. Here, however, Mr B... was required to contribute the care component of his Disability Living Allowance and his Housing Benefit and to make a contribution from his Income Support to the household budget. In addition and perhaps most crucially the accommodation charges were to include a charge for care and the Trust was to agree a contract for approximately £65 per week. The involvement of a third party and the building in to the charges of a payment for care costs is certainly not part of the usual form of tenancy agreement and neither is the stipulation of the source from which accommodation charges are to be met nor the provision for payment into a household budget.

It does not seem to me, however, that these factors take the accommodation out of being in a private dwelling. It appears to me that whether or not a person resides in a private dwelling is essentially to be determined by reference to who resides there as of right, the level of control that each tenant has over who shall and who shall not be admitted to the premises , his control over his own routine in the premises, his input into the joint domestic arrangements and his relationship to other persons who also reside in the premises. This list is not exhaustive.

The method of financing the rental, service and care charges while unusual does not appear to me determinative. In any event it also seems to me to not be a condition of tenancy so much as a statement of arrangements. There was, after all, no provision that it was a condition of the tenancy that Mr B... remained entitled to Disability Living Allowance or Income Support. Mr B... remained in the premises after his Income Support entitlement ceased and indeed after he stopped being paid the care component of Disability Living Allowance, the accommodation charge being met from other sources. In addition as the dwelling was to be a permanent home, if Mr B... became more independent less services would be needed and the care element would reduce.

As regards the care available as of right, it is correct that, subject to financial and management constraints, the tenants could obtain care from NICOD ancillary to their tenancies. As I set out below, however, this care was primarily to be determined by the tenant and the need for it was not a condition for the tenancy to continue. That need could increase, decrease or disappear and the right to reside in the bungalow would remain. In addition because it was to be determined by the tenant, it did not alter the level of control and independence exercised by the tenant.

I consider therefore that the Tribunal erred in treating the bungalow as other than a private dwelling. It was, I think, unreasonable in the Brutus -v- Cozens sense in so doing.

I have been asked by both parties to substitute my own decision for that which the Tribunal should have given; I consider that this is a case where it is appropriate to do so.

I therefore have to decide whether or not the claimant's accommodation is in a private dwelling. With one proviso, which in light of my conclusion is not of great relevance, I consider the phrase "private dwelling" should be given its ordinary meaning. The proviso is that I think the phrase should be broadly applied in the context of this legislation. This is because of the provision of regulation 9(7) which provides:

"(7) Subject to paragraph (7A) this paragraph applies where -

(a) the cost of the accommodation the person previously occupied was borne in whole or in part out of public or local funds and where he was moved out of that accommodation at the instigation of the body which bore the cost into a residential care home; or

(b) the person is living in a residential care home and at least 3 other persons in that home are provided with board and personal care, excluding persons carrying on the home or employed there or their relatives,

and for the purposes of this paragraph "residential care home" has

the same meaning as in Article 3 of the Registered Homes (Northern

Ireland) Order 1992."

It seems to me that the exclusion at regulation 9(6)(d) of cases to which paragraph (7) applies would not be necessary unless such persons might be otherwise assisted by the private dwelling exemption and that persons in a residential care home might, were it not for section 9(7) be considered as living in a private dwelling. It is in this context that I consider the phrase "private dwelling" should be given broad application.

However, even leaving that matter aside I would have reached the same conclusion as I have done. Mr Shaw cited the case of C & G HOMES LTD -V- SECRETARY OF STATE FOR HEALTH [1991] 2 All ER 841, a case not in the Social Security field but relating to clauses to do with the use of certain dwellings. Mr Shaw submitted that I should take into account all the factors set out in that case in deciding whether or not this was a private dwelling.

The factors taken into consideration in the C & G Homes case were as follows:-

(1) That there was no individual or individuals (whether as tenant or co-tenant or owner or joint owner) who could occupy the house as his or her own.

(2) That the Secretary of State remained responsible for the care of the residents who remained patients in the care of the National Health Service.

(3) That the house was owned by the Secretary of State as a Minister of the Crown exercising responsibility for the care of the residents and in that sense was used for public and not private purposes.

(4) That there were resident staff employed by the National Health Service.

As a result of these factors the judges concluded that the houses in that case were being used for purposes "other than those incidental to the enjoyment of a private dwelling house.

25. In this case few if any of those factors are present. Mr B... had a tenancy agreement in respect of the property making provision for the payment of rent, for the tenancy being terminable by four weeks notice on either side, for the responsibilities of the tenant and of the landlord and for other conditions of tenancy. Some of the conditions were unlike those in a normal tenancy eg. contributions to be made from Income Support for heat, light and power, the charges were to include care support and there was to be a contribution by a third party (the referring Unit of Management). The bulk of the conditions were, however, similar to a normal tenancy - the respective repair obligations, the need for notice to terminate the tenancy, the payment of rent, insurance and access provisions.

It appears to me that this agreement enabled each tenant to occupy the house as his or her own home.The property was owned by the NICOD, a charitable body which did not as such have any responsibility for the care of any of the tenants. The tenants were not patients but were all people with severe physical disability.

There were to be no resident staff. A formal care plan was to be negotiated with the tenant who was to "have primacy in completing it", although the views of others were to be taken into account and the implementation of the care plan was the responsibility of NICOD's Manager of Accommodation. Tenants were responsible for their own medication and were to register with a local GP. They were to be enabled by support workers to manage their own shopping, budgeting, menu preparation etc, with practical assistance provided for those activities the tenants were unable to manage.

The absence of resident staff, the tenants considerable control of the level of care, their responsibility for their own medication and the requirement for registration with a local GP all indicate strongly that the residents of the Blue Peter Bungalow were not in any way patients.

I therefore consider that the accommodation in this case was very different to that in the above case. I therefore have to decide if Mr B...'s accommodation in the Blue Peter Bungalow was in a private dwelling.

I do consider that the tenancy agreement was not the normal form of tenancy agreement. Mention of the sourcing of finance and certain services provided and the expectations as regards medication would not normally form part of such an agreement.

However, what had to be decided here was whether the claimant's accommodation was in a private dwelling. This bungalow accommodated 3 or 4 young people with severe disability. It had an intercom link to Ardkeen whereby assistance could be obtained. It was adapted for the tenants' needs. They were responsible for the domestic routine of the bungalow and for its internal repair. There were no members of staff in residence and the residents had the right to exclude anyone from their own bedrooms and by agreement with each other from the bungalow (except always for the landlord's reasonable right of access). Each lived there as a tenant and NICOD was not responsible for the care of any tenant, being merely the agent through which the care which each tenant required was to be obtained and managed. The young people were to determine, subject to financial and management constraints, the level of care provided. They were encouraged to regard the bungalow as their home and had a right to reside there for as long as their conditions of tenancy were met. Those conditions did not include any provision setting out the level, if any, of care to be required or provided to ensure continuance of the tenancy. If needs increased or decreased, the tenancy remained.

In light of all the above factors I consider that Mr B...'s accommodation in the Blue Peter Bungalow has throughout been in a private dwelling.

I therefore consider that the exemption in regulation 9(6)(d) applies and regulation 9(1)(c) does not apply to Mr B....

I come then to deal with the applicability of regulation 9(1)(b). I do consider that the payment made by the Trust was in pursuance of an enactment as set out in regulation 9(1)(b). If therefore payment was for the cost of the accommodation, Mr B... would be caught by regulation 9(1)(b). Regulation 9(8)(a) specifically provides that references to the cost of the accommodation is not to include "domiciliary services provided in respect of a person in a private dwelling".

The costs borne here by the referring Trust were the sum of £69.39 per week. I accept NICOD's letter of 8 June 1999 to Mr Stockman and NICOD's letter dated 8 March 1993 to Mr McQ… of the Housing and Planning Centre and conclude, on the basis of same, the payment of £69.39 per week was for domiciliary services provided at the Bungalow.

No issue was raised and none is apparent to me that any other costs of the accommodation was borne out of public or local funds. I therefore conclude that regulation 9(1)(b) is not applicable to Mr B....

One further matter remains. This relates to the applicability of regulation 9(1A) of the said Regulations. I consider (as did both representatives) that the Tribunal was in error in failing to explore this matter in light of its conclusion that Mr B... was not living in a private dwelling. There certainly remained an issue to be explored by the Tribunal as to whether Mr B...'s being a full-time student in receipt of a grant could lead to regulation 9(1A) assisting him. As my conclusion is different it is not necessary that I decide the applicability of regulation 9(1A) and I do not wish to delay a decision. I would prefer further argument before reaching a concluded view on the matter.

My decision in relation to the question of whether or not Mr B... is to be paid the care component of Disability Living Allowance does not rest on regulation 9(1A), but on the non applicability of regulation 9(1) to Mr B...'s case.

My decision, therefore, is that the appeal is allowed and Mr B... is not prevented by regulation 9 of the Regulations from being paid the care component of Disability Living Allowance from and including 27 September 1995.

(Signed): M F Brown

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24 September 1999