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Cite as: [1990] UKSSCSC CIS_182_1989

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[1990] UKSSCSC CIS_182_1989 (30 May 1990)

R(IS) 3/91

Mrs. R. F. M. Heggs, Mr. M. H. Johnson CIS/182/1989

and Mr. W. M. Walker

Housing costs – tenant's bill for roof repairs to a block of flats – whether a service charge

The claimant, a leaseholder and occupier of a flat in a block of 15 flats, was billed £1,326.56 by her landlord for roof repairs. The claimant contended that the bill should be considered as an eligible service charge. The tribunal found that the charge for roof repairs was not a "service charge" in terms of either paragraphs 1(f) or 1(h) of Schedule 3 to the Income Support (General) Regulations. The claimant's appeal against that decision was considered by a tribunal of Commissioners who decided that the charge made for the roof repairs was an eligible service charge and remitted the case to the adjudication officer for payment to be assessed.

Held that:

in the context of housing if the charges are imposed on the claimant under the terms by which the property is held that is a favourable indication that the charge will qualify as a service charge (appendix, para. 15);

it is necessary to consider whether the service is or is not connected with the provision of adequate accommodation (appendix, para. 16);

the claimant satisfied both conditions, her lease provided for the imposition of the charge and the service clearly related to the provision of adequate accommodation (appendix, para. 18);

Notes: (i) the decision has effect from 30 May 1990 until 30 September 1990. On 1 October 1990 paragraph 9(2)(c) was introduced into Schedule 3 by the Income Support (General) Amendment No. 3 Regulations 1990 (SI 1990/1776)

(ii) the reasoning underlying decisions R(IS) 3/91 and R(IS) 4/91 is set out in an appendix common to both decisions and printed at the end of R(IS) 4/91.

DECISION OF THE TRIBUNAL OF COMMISSONERS

Our decision is that:

(a) the unanimous decision of the Finchley social security appeal tribunal given on 6 April 1989 is erroneous in point of law and is accordingly set aside;

(b) the decision which the tribunal should have given is that the claimant is entitled to have included in her income support a sum in respect of the service charge relating inter alia to the cost of roof repairs; such sum to be assessed by the adjudication officer and, in the event of any disagreement, to be referred to us for determination.

The claimant appeals with leave of the Commissioner against the decision of the tribunal disallowing her appeal against the decision of the adjudication officer, issued on 16 December 1988, that the claimant's income support did "not include anything towards the cost of roof repairs for which she is liable".

We held an oral hearing of this and an associated appeal on 2 April 1990, when the claimant was represented by Mr. P. C. Black. The adjudication officer was represented by Mr. James Latter, of Counsel, instructed by the Solicitor to the Departments of Health and Social Security. We are obliged to both Mr. Black and Mr. Latter.

The facts are not in dispute. The claimant, who is divorced, lives by herself in a second floor flat which she holds by virtue of a lease for a term of 99 years (less three days) from 13 June 1967. At a date of which we are unaware the lease was assigned to the claimant and it is common ground that she then became subject to the benefits and burdens thereof which, in so far as they are relevant to the instant case, are contained in clause 1, whereby the claimant undertook to pay:

". . . by way of further or additional rents (a) . . . . (b) one fifteenth part of the amount which the Lessors and/or their Agents may from time to time expend in or about or in relation to the repairing maintenance decoration cleansing and lighting of the common parts of the Building in accordance with the covenants on the part of the Lessors contained in clause 5(d) hereof . . ."

By clause 5(d) the Lessors covenanted :

"(d) That (subject to contribution and payment as herein before provided) the Lessors will maintain repair redecorate and renew

(i) the main structure, and in particular the roof gutter and rainwater pipes of the Building . . ."

On 12 August 1988 the Lessors' agents rendered an account for £1,326.56 to the claimant in respect of roof repairs, which she then sought as an addition to her income support. On 16 December 1988 the adjudication officer decided that that sum could not be treated as a "service charge", and whether or not it is to be so treated is the sole issue in this appeal.

On 6 April 1989 the tribunal disallowed the claimant's appeal. They found that:

"1. The facts as they appear in the papers are correct.

The claim is for the appellant's contribution towards major structural repair and not within the ambit of a service charge."

And they gave as their reasons for their decision that:

"1. The amount claimed does not fall within the ambit of the service charge.

The presenting officer confirmed that any amount to meet the half yearly bill which was not received weekly by the appellant would be adjusted when the bill was submitted provided the amount was for periodical service charge."

In a submission dated 6 December 1989 the adjudication officer now concerned with the case submits that in failing to make sufficient findings of fact or to give the claimant "a clear and full explanation of why the roof repairs were not considered to be 'service charges', or how her weekly amount for 'service charges' should be calculated" the tribunal were in breach of regulation 25(2)(b) of the Social Security (Adjudication) Regulations 1986 [SI 1986/2218]. We agree that is plainly the case and that the decision must accordingly be set aside as erroneous in point of law.

We have decided that this is a case in which we can and should exercise our discretion under section 101(5)(a)(i) of the Social Security Act 1975 to give the decision which the tribunal should have given. The reasons for our decision, including the relevant law, are set out in the appendix annexed hereto and, in those circumstances, we need only add that the claimant's appeal is allowed.

Date: 30 May 1990 (signed) Mrs. R. F. M. Heggs

Commissioner

(signed) Mr. M. H. Johnson

Commissioner

(signed) Mr. W. M. Walker

Commissioner