UK Social Security and Child Support Commissioners' Decisions

You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [1991] UKSSCSC CIS_461_1990 (10 June 1991)
URL: http://www.bailii.org/uk/cases/UKSSCSC/1991/CIS_461_1990.html
Cite as: [1991] UKSSCSC CIS_461_1990

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

[1991] UKSSCSC CIS_461_1990 (10 June 1991)

R(IS) 2/92

Mr. J. G. Mitchell CIS/461/1990
10.6.91

Applicable amount – claimant living in unregistered satellite home of registered residential care home – whether living in a "residential care home"

The claimant was an elderly lady suffering from mental illness. She had been living in a residential care home, where she received benefit at the residential care rate. The project was administered by a charity providing rehabilitation and care for persons suffering from mental illness. The charity operated on a "core and cluster" basis. A central establishment (the core) administered the project and operated as a residential care home, and small houses (the cluster) were situated in the vicinity. The aim of the project was to provide suitable rehabilitation and care at the core home and then to transfer as many as possible of the residents to one of the cluster houses, where they were encouraged in independent living with a view to eventual rehabilitation into the general community. Only the care home was registered under Part 1 of the Registered Homes Act 1984. From 5 March 1990 the claimant's entitlement was reviewed and revised by the adjudication officer, who decided that the claimant was no longer in a residential care home and should be treated as a householder for benefit purposes. The claimant appealed to the tribunal, who allowed the appeal on the grounds that the claimant's new address could itself be treated as a residential care home. The tribunal Chairman granted the adjudication officer leave to appeal to the Commissioner.

Held that:

the cluster house was not part of the main residential care home registered under the Registered Homes Act 1984 (para. 9);

the cluster house did not satisfy the conditions in definition (b) of the term "residential care home", in regulation 19(3) of the Income Support (General) Regulations. In particular, sub-paragraph (b)(i) could not be satisfied because the staff providing personal care were engaged in other remunerative work at the core home (para.10).

The adjudication officer's appeal was allowed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal dated 2 July 1990 is erroneous in law and is set aside. The decision which I give in its place is that the adjudication officer was entitled to review and revise the award of income support to the claimant from 5 March 1990 as it was then established that the claimant's change of address from Edward House, Edward Street, Oldham to 16 Florida Street, Oldham, constituted a relevant change of circumstances within the meaning of section 104(1)(b) of the Social Security Act 1975 in respect that she was no longer living in a residential care home within the meaning of regulation 19(1) and (3) of the Income Support (General) Regulations 1987. During such periods as the claimant has, since 5 March 1990, lived at 16 Florida Street she falls to be treated as a (pensioner) householder and paid income support accordingly.

This is an appeal by the adjudication officer with leave on a question of law against the above-mentioned tribunal decision of 2 July 1990. This appeal and the essentially similar case CIS/445/1990 were dealt with together at an oral hearing held before me in Liverpool at which the adjudication officer was represented by Mr. Jenking-Rees of the Office of the Solicitors to the Departments of Health and Social Security and the claimant, who attended in person, was represented by Mr. Mark Rowland of Counsel. I am grateful to both representatives for their assistance.

Turning Point, of Edward House, Oldham, is a charity under the patronage of Her Royal Highness the Princess of Wales providing rehabilitation and care for persons suffering from mental illness. It operates on a "core and cluster" basis, that is, there is a central establishment at Edward House, 14/16 Edward Street, Oldham, which administers the project and operates as a residential care home at that address. The aim of the project is, after providing suitable rehabilitation and care at that address, to transfer as many as possible of the residents to one or other of the small "cluster" homes situated in the vicinity, and also administered by the charity, where the residents are encouraged in independent living with a view wherever possible to their eventual rehabilitation into the general community. Edward House is itself a residential care home registered under Part 1 of the Registered Homes Act 1984. Unfortunately, the manner in which the otherwise admirable "core and cluster" project operates in this case has not, apparently, enabled the charity to secure registration in respect also of the "cluster" homes and in particular the home at 16 Florida Street which is the subject of this appeal. This has created an income support benefit difficulty in relation to residents such as the claimant, on moving out from Edward House to a cluster home. It is common ground that at the material time the claimant and the claimant in the associated case, CIS/445/1990, were the only residents at 16 Florida Street.

In the present case the claimant, an elderly lady living alone and suffering from mental illness, was taken into Edward House in May 1986. She received benefit as a resident in a residential care home which enabled her to meet the fees of the home, latterly of £130 per week, until, following her transfer to Florida Street, an adjudication officer decided that with effect from 5 March 1990 she could no longer be treated as a person living in a residential care home in terms of regulation 19 of the Income Support (General) Regulations 1987 and that she fell to be treated as a householder for benefit purposes.

Regulation 19(1) and (3) contains the following material provisions:

"19. (1) Subject to regulation 22 (reduction of applicable amounts) where-

(a) the claimant lives in a residential care home or nursing home; or

(b) if the claimant is a member of a family, he and the members of his family live in such a home,

his weekly applicable amount shall, except in a case to which regulation 21 (applicable amounts in special cases) or Part II of Schedule 4 (persons to whom regulation 19 does not apply) applies, be calculated in accordance with Part I of that Schedule.

……

(3) In this regulation and Schedule 4 –

"residential care home" means an establishment -

(a) which is required to be registered under Part I of the Registered Homes Act 1984 and is so registered; or

(b) in England and Wales which provides residential accommodation with both board and personal care for fewer than four persons, excluding persons carrying on or intending to carry on the home or employed or intended to be employed there and their relatives, but only if-

(i) at least two employed or self-employed persons (referred to in this paragraph as responsible persons) are each engaged in providing personal care to residents of the establishment for a minimum of 35 hours a week and those persons are not engaged in any other remunerative work; and

(ii) each of those responsible persons has at least one year's relevant experience in caring for persons in need of the category of personal care for which the establishment provides such care; and

(iii) at least one responsible person is available throughout the day to care for residents of the establishment; and

(iv) at least one responsible person is on call throughout the night to care for residents of the establishment; and

(v) all residents have free access to the premises at all times; or ..."

The claimant appealed to a social security appeal tribunal who unanimously allowed her appeal. The tribunal made the following findings of fact:

"The certificate from the local authority only covers the patients in Edward House. Florida Street is not included in the certificate. Regulation 19(3)(b) has to be considered. The evidence shows that at least two extra people are taken on with a satellite house. The occupants of the house are visited each day by at least one member of staff and the occupants attend Edward House each day and are then cared for whilst in Edward House. The premises are covered by telephone link and there is always one person on call during the day and one person on call during the night: if necessary a patient is returned to Edward House for care."

The tribunal's reasons were stated in the following terms:

"The satellite home is not covered by the Local Authority Certificate but satisfies all conditions of regulation 19(3)(b).

Mr. Hemmings indicated clearly that there is always someone on call for 24 hours per day. Visits are made regularly by staff to the house and the appellants attend at Edward House each day. Care is given for 24 hours each day."

It is immediately apparent, and indeed was conceded by Mr. Rowland on behalf of the claimant, that the tribunal decision does not deal with all of the conditions which require to be satisfied under the definition in regulation 19(3)(b) in the case of an unregistered residential establishment and it is accordingly erroneous in law. On behalf of the adjudication officer however Mr. Jenking-Rees submitted that on the admitted facts it was apparent that the requirements of regulation 19(3)(b)(i), in particular, could not be satisfied in respect of the requirement of at least 2 careers employed for the specified hours who were not to be engaged in any other remunerative work. He referred me to unreported decision CIS/234/1989.

The difficulty in the present case is that although Turning Point take on additional staff at Edward House in respect of any additional cluster house set up, such as that at Florida Street, and their employees visit Florida Street daily, the whole purpose of a cluster house is to attempt to increase, on a small group basis, the independent living capability of the residents, while retaining the full fall-back facilities of personal care at Edward House where the staff are employed on rota duty seven days a week, 24 hours a day, to provide care for residents as required. Thus although some limited personal care is given at Florida Street the main personal care facilities of the charity are at Edward House and even when living at Florida Street the residents attend Edward House daily.

Mr. Rowland was constrained to concede that Edward House, as a registered residential care home, was a different "establishment" for the purposes of the definition in regulation 19(3) from the "establishment" which he contended could qualify as an unregistered home in respect of the residents at Florida Street. That establishment, he said, must be regarded as partly consisting of the accommodation at Florida Street and partly the provision of personal care both there and elsewhere (i.e. at Edward House). In that connection Mr. Rowland referred to unreported case CSB/1348/1988 in which a Commissioner accepted that an establishment in the context of the definition of a residential care home could be distinct from the premises or building in which the home was situated. Mr. Rowland's inability to argue for Florida Street as part of the residential home establishment registered under the Registered Homes Act and coming within the definition in regulation 19(3)(a) and the necessity to argue for Florida Street as a separate unregistered residential home created acute difficulty for him in trying to show that the requirements of regulation 19(3)(b)(i) were satisfied and in particular were satisfied in respect of persons providing personal care who were not engaged in other remunerative work.

With great reluctance I have come to the conclusion that the difficulty referred to above is insuperable and that it could not for instance be overcome by any further evidence which attempted to allocate hours of personal care given to the claimant whilst residing at Florida Street by persons employed at Edward House. The necessity to argue for Florida Street as a separate residential home in my judgment inevitably means that staff employed at Edward House fall to be regarded as engaged in other remunerative work. In the circumstances I set aside the decision of the tribunal as erroneous in law and I find it appropriate to substitute my own decision therefore. As indicated in paragraph 1, I have found grounds of review established upon the basis of a relevant change of circumstances justifying revision of the award of income support to the claimant with effect from 5 March 1990. The information in the papers before me indicates that the claimant has on more than one occasion had to return to live in Edward House for greater support and care. I have accordingly left that matter open in my decision to be dealt with locally as appropriate.

I can only express the hope that the legislature will see fit to support the work of such projects as Turning Point by making some special provision for them which will either enable them more readily to have registration extended to the cluster houses or to enable such houses more readily to qualify as unregistered homes.

The appeal of the adjudication officer is allowed.

Date: 10 June 1991 (signed) Mr. J. G. Mitchell

Commissioner