UK Social Security and Child Support Commissioners' Decisions

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[2008] UKSSCSC CH_1246_2007 (28 July 2008)

(1) CH/779/2007

(2) CH/1246 and 1247/2007

(3) CH/2805/2007

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER

A. INTRODUCTION

In each of the appeals before me the issue is whether the accommodation let by the landlord, Golden Lane Housing Ltd ("GLH"), to the claimant tenant was at the material time "exempt accommodation" - i.e. accommodation

"provided by a non-metropolitan county council ……a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision."

GLH is a registered charity which provides accommodation for people with learning disabilities throughout the country. It is not contended by GLH that it provides "care" or "supervision". The issue in each of the appeals is whether GLH at the material time provided "support" to the claimant tenant. In each case there is another entity which is commissioned by the local authority to and does provide to the tenant care, support and supervision, in order to enable the tenant to live as independently as reasonably possible in the accommodation provided by GLH. It is nevertheless contended by GLH that it also "provides … support" and therefore that the accommodation which it lets to the claimants is "exempt accommodation."

The significance of the issue is in broad terms that substantially more housing benefit is likely to be payable by the local authority in respect of each claimant's tenancy if the accommodation is "exempt accommodation". That is because as from 1996 a new version of regulation 11 of the Housing Benefit (General) Regulations 1987 was enacted, under which the rent eligible for housing benefit is in effect limited to that determined by a rent officer in accordance with specified criteria. However, a saving provision was enacted (in regulation 10 of the Housing Benefit (General) Amendment Regulations 1995). This provided that the old form of regulation 11 should continue to apply in certain cases, one of which (as subsequently amended) was that of a person "who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation." "Exempt accommodation" was defined in regulation 10(6) of the 1995 Regulations (again as subsequently amended) as including accommodation within the definition set out in paragraph 1 above.

Under the consolidation of the housing benefit legislation which took effect from 6 March 2006, regulation 11 of the 1987 Regulations has become regulation 13 of the Housing Benefit Regulations 2006. Provision for the continued application of "old" regulation 11 is now in effect contained in the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. The definition of "exempt accommodation", in the terms set out above, is now in paragraph 4(10) of Schedule 3 to those Regulations.

In cases where the old form of regulation 11 applies the effect, broadly, is that the council cannot restrict, by reference to a rent officer's determination, the amount of rent eligible for housing benefit unless there is suitable alternative accommodation available to the claimant and it is reasonable to expect the claimant to move to it.

There are four claimants; two of them are tenants of a property in Oxford ("the Oxford Property"), for which Oxford City Council is the local authority responsible for paying housing benefit. Those two claimants are in an identical position, so far as the issue in these appeals is concerned. The third claimant is a tenant of a property in Sheffield ("the Sheffield Property"), for which Sheffield City Council is the responsible authority, and the fourth claimant is a tenant of a property in Hounslow ("the Hounslow Property"), for which the London Borough of Hounslow is the responsible authority. There are therefore in effect three cases before me. In the Sheffield and Hounslow cases those local authorities are also the authorities with statutory duties for providing for the care and support of persons with learning disabilities. In the Oxford case, however, it is the Oxfordshire County Council (not Oxford City Council) which has those responsibilities.

My decisions in these appeals may be of relevance to many of GLH's other tenants around the country, and indeed to tenants of other landlords. The sums involved are potentially substantial. In the Oxford and Sheffield cases, for example, the difference between the contractual rent and the amount of the rent officer's determination is about £130 a week per tenant and in the Hounslow case the difference is about £100 a week.

In each of the cases the responsible authority decided that the amount of the claimant's rent eligible for housing benefit was limited to the amount of a rent officer's determination, on the ground that the claimant's accommodation was not "exempt accommodation" because GLH did not provide support to the claimant. In each of the three cases I have, by separate interim decisions made some time ago, set aside the decision of the local appeal tribunal, which decided an appeal from the relevant decision of the housing benefit authority. However, rather than remitting the cases to fresh appeal tribunals for redetermination, I directed that there should be a hearing before me with a view to my making the necessary findings of fact and substituting my own decisions, in exercise of the power in paragraph 8(5)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000. I directed that the three cases should be heard at the same time, and that the evidence in each case should be treated as also being evidence in the other two cases.

That hearing took place on 8 and 9 May 2008. The claimants in each of the three cases were represented at the hearing by Mr Richard Drabble QC, instructed by Mr. Simon Ennals, a solicitor practising in Sheffield in the field of welfare and community care law under the name "Essential Rights Legal Practice." Oxford City Council was represented by Mr Ranjit Bhose, of counsel, Sheffield City Council by Miss Rachel Perez, of counsel, and the London Borough of Hounslow by Miss Kate Tonge, their appeals and training officer.

GLH clearly has a direct financial interest in the claimants succeeding in these appeals, and has supplied the claimants' legal representation.

At the hearing oral evidence was given by four GLH employees. As there was clearly going to be insufficient time for oral submissions to be completed within the allotted two days, I directed that all parties make their final submissions in writing. Those submissions were complete by 9 June 2008. I refer in this decision to page numbers in the Oxford (Michael), Sheffield and Hounslow bundles respectively as [O ], [S ] and [H ]. I refer in this decision to page numbers in the transcript of evidence as [T ]. All the GLH witness statements are to be found in the Hounslow Bundle.

B. HOUSING RELATED SUPPORT: THE STATUTORY CONTEXT

It is not contended by GLH that it has any statutory obligation to provide support to its tenants. Such statutory obligations as exist are those of the relevant local authority. First, there are direct statutory duties imposed on local authorities. I have been referred, for example, to the duty on a local authority under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 to make arrangements, where necessary, for the provision of practical assistance in his home to a person falling within section 29(1) of the National Assistance Act 1948, which includes persons aged 18 and over "who are substantially and permanently handcapped by illness, injury or congenital deformity."

Secondly, the relevant local authorities have statutory powers and duties as a result of the receipt from central government of Supporting People grants. The way in which housing related support has been and is now financed is of some relevance in attempting to understand (in particular) the contractual documentation. From 1997 until April 2003 service charges attributable to the costs of providing housing related support to tenants of "supported accommodation" (but not other accommodation) were eligible for housing benefit under a transitional scheme (known as "transitional housing benefit"). The type of service charges which so qualified were set out in Schedule 1B to the Housing Benefit (General) Regulations 1987 (headed "service charges for claimants in supported accommodation"). They included, for example, charges in respect of time spent in the provision of general counselling or other support which assists the claimant with maintaining the security of the dwelling he occupies as his home, or with compliance with those terms in his tenancy agreement concerned with matters such as nuisance and rental liability.

The transitional housing benefit scheme expired in April 2003. From that date charges made by a landlord in respect of counselling and support provided by it or on its behalf were no longer eligible for housing benefit, even in "supported accommodation." Thus, para. 1(f) of Schedule 1 to the Housing Benefit Regulations 2006 lists among "ineligible service charges" "charges in respect of general counselling or of any other support services, whoever provides those services."

This implemented the policy whereby funds for support costs are paid directly by the relevant authorities to the support provider under the Supporting People programme, rather than being channelled (by way of housing benefit) through the landlord who (if not providing the support itself) then subcontracted with the support provider. As it was put in para. 1 of the Secretary of State's response to the Social Security Advisory Committee's Report on the Housing Benefit (General) Amendment Regulations 2003 (Cm 5773): "From April 2003, the costs of support services will be funded by the Government's Supporting People programme." This policy had been foreshadowed in the 2001 White Paper "Valuing People," which sought to promote the maximum degree of independence for people with learning disabilities. It was considered desirable to separate the provision of housing from the provision of care and support, partly in order to enable a person with learning disability to change care and support provider while remaining in the same accommodation.

The Supporting People legislation provides for the making by central government to Supporting People administering authorities (i.e. the relevant local authority) of grants to be used by those authorities in connection with the provision of housing related support services. By s.93(1) of the Local Government Act 2000 the Secretary of State may pay grants to local authorities in England towards expenditure by them "(a) in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State, or (b) in connection with such welfare services." Grants are payable on such terms and conditions as the Secretary of State may determine (ss.(5)), with the local authorities concerned having also to have regard to any guidance issued (ss(8)), and comply with any directions made (ss(9)). Annually, and in pursuance of the s.93 powers, Directions and Programme Grant Conditions are issued. In respect of the year 1 April 2005 to 31 March 2006 the maximum Supporting People grant payable to Oxfordshire County Council, for example, was £19,721,101.

C. THE MEANING OF "PROVIDES THE CLAIMANT WITH ….SUPPORT"

In R(H) 2/07, decided in June 2006, I held that support was not provided by the support provider "on behalf of" the landlord (within the meaning of the definition of "exempt accommodation") where the landlord was under no contractual or statutory obligation to provide the support and the support provider had been commissioned by the local authority, not the landlord, to provide the support. That decision was of significance in that there appeared to be a view in general circulation that if the landlord and the support provider were working to achieve a common aim (namely the success of the supported housing scheme), the support could be said to be provided "on behalf of" the landlord because it was in the interest of the landlord that the support be provided. Indeed, that argument was put forward, prior to the decision in R(H) 2/07, by GLH's solicitors in the Sheffield case.

In R(H) 6/07, decided in March 2007, I held that the definition of "exempt accommodation" did not require either that the landlord should be under a contractual or statutory duty to provide the support, or that it be the main support provider. I held that it is sufficient that the landlord provides support to more than a de minimis (or minimal) extent. The local authorities have in the present case accepted those propositions for the purposes of argument before me, but reserve the right to challenge them should this case go further.

In paragraph 16 of my interim decision in the Hounslow case I left open the question whether it is permissible to take into account support which is made available by the landlord to tenants generally, but not taken advantage of by the particular tenant whose accommodation is being considered. I said that it seemed to me clear that in the case of "care" and "supervision" they must actually be provided by the landlord; it is not enough that they are available should the tenant wish to call for them. However, I said that in the case of "support" the making available of certain types of service might itself amount to the provision of "support". It is submitted by Mr Drabble, on behalf of the claimants, that the latter view is correct. He submits that "support", unlike "care" and "supervision", does not require a constant relationship between tenant and landlord. He submits that support will be provided if the landlord arranges its affairs in a way which means that it will be able to intervene when required from time to time. He submits that the tenant is, as a matter of the ordinary use of language, supported by the landlord if the landlord has in place a meaningful ability to intervene as and when necessary.

On behalf of the local authorities it is submitted, on the other hand, that the definition is concerned with the actual provision of support, and not its mere availability. In particular, it is submitted by Mr Bhose on behalf of Oxford City Council that reg. 10(5) presupposes a need for care, support or supervision, and that it also clearly intends that this need be met by the provision of the relevant service. If the service is not in fact called upon by a tenant, it is reasonable to assume that he does not in fact need it. It is submitted that GLH's contention requires one to read reg. 10 as if it said "provides support if needed", and that that is impermissible.

In my judgment the making available of certain types of support is capable of amounting to the provision of support within the ordinary meaning of the words "provides …support" in the definition. For example, if the landlord makes available a properly staffed telephone service whereby tenants can seek advice which, if given, amounts to "support", I think that the making available of the service would amount to the provision of support during any particular period, whether or not the tenant in fact makes use of it during that period. (That is of course subject to the proviso that there must be a real prospect that the tenant will find the service of use from time to time).

However, I do not think that it is sensible to attempt to answer the question (i.e. the question whether the making available of support amounts to the provision of support) in the abstract. In my view it can only sensibly be answered with reference to the precise nature of the support which is made available, and with reference to the manner in which it is made available. It is therefore necessary to make findings on those matters first.

I do, however, accept the submission of Mr Bhose that the definition is in any event only satisfied, in relation to any particular tenant, if it is established that the support is available to that tenant, in the area where he lives. I do not think that Mr Drabble would dispute that. I do not think that that point is of much importance in this case, as GLH's evidence is to the effect that what it makes available is fairly uniform throughout its schemes.

I also accept the submission of Mr Bhose, which is in my judgment of more practical importance, that in determining whether a service or facility made available by the landlord amounts to the provision of support to any particular tenant to a more than minimal extent, one must have regard to the degree of likelihood that the particular tenant will ever need to take advantage of it. In determining that one must of course have regard to the extent to which support is available from elsewhere.

It is implicit in the approaches adopted by all parties that the word "support" involves the landlord doing something more than or different from the exercise of its ordinary property management functions. That must in my judgment be right. A landlord does not in my judgment "provide …support" to a tenant, in the context of the definition of "exempt accommodation", by doing what any prudent landlord would do in the management of its property. To take an obvious example, a landlord does not provide support by complying with its repairing obligations, however beneficial to the tenant that may be. However, it becomes apparent when one examines some of the activities of GLH which are said on its behalf to amount to support that there is in some cases room for debate whether they go beyond what the ordinary landlord would do in managing the property. In such cases it is in my judgment relevant, in determining whether support is provided to a more than minimal extent, to have regard to the extent to which the alleged support is allied to ordinary property management.

A further important limitation is that in my judgment the words "provides …support" imply a degree of continuity in the available support. They therefore do not in my judgment include any activities of the landlord which were involved in setting up the scheme. They therefore do not in my judgment include, in particular, advice and consultation in relation to the acquisition of the building and the tenant's move to it, or the making of adaptations to the building which are carried out before or within a short time after the commencement of the tenancy, or the provision (at or about the time of the tenant moving in) of "accessible" materials such as those referred to in paragraph 7.3 of Mr Parkinson's witness statement [H 365].

By paragraph 6(9)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 an appeal tribunal is not permitted to take into account any circumstances not obtaining at the time when the decision appealed against was made. The periods in respect of which it has to be decided, in these appeals, whether the respective claimants' accommodation was "exempt accommodation" are therefore the periods from the date of the claim for housing benefit down to the date of the local authority's decision. (In the Sheffield case the claim for housing benefit was made at or about the time of the commencement of the tenancy. In the Hounslow case the tenancy had been on foot for some 4 months by the date of the application for increased housing benefit. In the Oxford cases the tenancies had already been on foot for some years at the date of the renewed applications for housing benefit). The relevant periods are as follows:

9/11 May 2005 to 5 September 2005 in the Oxford case

5 August 2004 to 18 October 2004 in the Sheffield case

About 17 February 2006 to 4 May 2006 in the Hounslow case

Evidence as to support actually provided or made available after the date of the decisions under appeal (i.e. the later of the two dates set out above in each case) is therefore relevant only if it provides evidence of what support was provided or made available down to that date.

Where (as in the Oxford case) the tenancy has been on foot for some years before the material time as at which the question whether the accommodation was "exempt" has to be considered, it will be possible to look at what support GLH had provided to that tenant prior to that period in order to help determine what support (if any) the landlord provided at the material time. Where, however, (as in the Sheffield and Hounslow cases) the question is being considered as at a time shortly after the commencement of the tenancy, there will be no (or virtually) no relevant past history to look at and the question in effect becomes (in relation to support which is not actually provided on a daily or weekly basis) what support it was at the relevant time contemplated that the landlord would provide.

Mr Drabble has not relied on the tenancy agreements as obliging GLH to provide support, or on the agreements between it and the support provider in each case as having the effect that support is provided by the support provider on behalf of GLH. Mr Drabble's submissions have concentrated entirety on the support which it is contended GLH in practice actually provides. Those appearing for the local authorities have also placed very little reliance on the contractual documentation. I have nevertheless thought it right, when dealing with the facts of the three cases, to summarise the basic provisions of the contractual documentation.

D. THE CATEGORIES OF SUPPORT SAID TO BE PROVIDED BY GLH

In its letters of appeal against the local authorities' decisions, GLH has summarised the categories of support which it provides as including the following. Mr Drabble's final submissions were based on these categories:

(1) Liaison and contact with the Support Provider and Social Services/Support Commissioner and other professionals to ensure the support and housing remains appropriate to the needs of the tenant.

(2) Assistance for tenants in arranging for tradesmen to do work that is the tenant's responsibility under the tenancy agreement.

(3) Arranging adaptations to cope with disability.

(4) Dealing with neighbour and tenant disputes.

(5) Assistance and advice claiming housing related welfare benefits.

(6) Assistance with minor maintenance items which are the tenant's responsibility.

(7) Liaison with relatives, next of kin and wider support network.

(8) Resettlement activities; generally helping the tenant decide what sort of move-on accommodation they may need if their accommodation no longer meets their needs.

E. AN OVERVIEW OF GLH AND ITS OPERATIONS: BASIC FINDINGS

Evidence was given in relation to the functions and role of GLH generally by Mr Simon Parkinson. He is the national manager of GLH, which means that he is accountable to the Director of Housing and Support for Mencap and to the GLH board of trustees for the operations of GLH. Prior to being employed by GLH he worked for housing associations and local authorities. (T 8).

On the basis of Mr. Parkinson's evidence and the documentary evidence I find the following basic facts as to the nature of GLH and its operations.

GLH is a company limited by guarantee which is a registered charity and which was established by Mencap in 1998 in order to provide housing for people with a learning disability. Mencap is the sole member of GLH.

As at August 2005 GLH had 712 tenants in 317 properties. As at the date of the hearing in May 2008 there were 910 tenants in 412 properties. In recent years there has been an increase in the number of tenants of about 100 a year [T 53].

GLH currently has a staff structure of 29 people, all of whom are employees of Mencap and seconded to work for GLH. (Parkinson witness statement, para 4.1).

As at August 2005 GLH's operations were split into 6 regions, the properties being split roughly equally between the 6 regions. At that time the staffing structure was that there was one housing consultant and one housing development officer for each region. [O 93;T 54] In addition, there were staff based centrally, such as those manning the 24 hour telephone line.

As at 2007/8 GLH's operations were split into four regions, with each region having one housing consultant and two housing and development officers based in the region [H 393: organisation chart], although two of the housing and development officer posts were vacant at that time. It was Mr Parkinson's evidence, which I accept, that the housing officers spend almost the entirety of their time visiting properties, and that the housing consultants split their time between developing new services (60%) and managing existing services (40%). In addition, there is a senior housing consultant (Mr Dugher) and a tenant participation officer (see below). There is in addition a dedicated central (i.e. based in Manchester) support team of 4 people who man the 24 hour telephone line during office hours. There is also an advice officer, who develops housing plans for those seeking housing or a move (para. 41 of Mr Parkinson's witness statement).

Since the organisation chart at H 393 was produced there appears to have been a further change, in that the country is now split into two regions, north and south. [T26 onwards].

GLH maintains a "one number" low call cost (0845) telephone line which deals with all tenants' inquiries whether housing related or otherwise. During the hours 9 to 5 on week days the calls are answered by a dedicated central team of 4 and dealt with as the urgency requires. Outside those hours the calls are answered by a national contractor, Homeserve. If an out of hours call relates to a repair item, and is urgent, Homeserve will deal with it by instructing contractors. If it relates to an urgent matter other than repair, Homeserve will contact the person at GLH on call. There is a rota system whereby there is always a GLH employee on call, outside office hours, to deal with such matters.

Repair and maintenance work is done by two principal contractors (one in the north and one in the south of the country). GLH delivers training to their tradesmen in working with people with learning disabilities.

Since October 2004 GLH has established tenant participation forums at 5 locations round the country. Meetings are held at least 3 times a year, and are attended by over 10% of tenants. [O 85]. For example, recent forums at Rotheram and Nottingham have looked at safety in the home, safety on the streets, and recyling and fire safety. As noted above, there is a GLH employee assigned to tenant participation. (H p.372).

All GLH operational staff have been cleared to work with vulnerable adults by the Criminal Records Bureau system and have the opportunity to attend training in supporting people with learning disabilities through Mencap. According to Mr McGoogan's evidence [T68] this training consists of a line manager taking the individual through an induction book and a video supplied by Mencap.

F. GLH'S DETAILED CONTENTIONS AS TO SUPPORT PROVIDED TO ITS TENANTS GENERALLY: MR PARKINSON'S WITNESS STATEMENT

I shall now set out extracts from Mr Parkinson's witness statement. I think that it is preferable to do that, rather than attempt to summarise or paraphrase GLH's detailed contentions as to their mode of operation and as to the support provided by them to tenants generally.

"The distinction between the support provided by GLH and the 24 hour care provided by others

The policy context of supported living is built around the notion of a three way partnership between the tenant, the housing provider and the care provider, as opposed to the registered care model which ties the care and the accommodation together. Even when our care provider partners are engaged on a 24 hour basis, GLH has an important role to play in providing the additional support needed by people with learning disabilities to successfully maintain a tenancy. This goes far beyond traditional housing management, both in terms of services provided and the method of delivery which has to be adapted to the needs of the tenants. Details of GLH's approach to delivering these services are given in the statement.

It is also the case that the current contracting arrangements for the provision of social care are leading to regular changes in the contracted care provider for many of our tenants. At these points of transition, GLH has a vital role to play in supporting the tenant to adjust to a new care provider and maintain their tenancy. In short, GLH, as a supported landlord, is often the only organisation which can offer a long term commitment to the individual and their family and this drives a relationship with both which has a significant impact on their lives. Again examples of this are provided in the statement.

1. An introduction to Golden Lane Housing (GLH)

…………………………………………………………………………………

The whole nature of GLH's approach is to start with the individuals first rather than simply allocate housing from a list. GLH delivers a person centred approach in line with Valuing People. GLH has a close relationship with tenants, families, care providers and commissioners throughout the duration of the tenancy and enjoys ongoing relationships with all parties.

It is often the case that the individuals that GLH house have exhausted the possibilities of social housing and are referred to GLH as the housing provider of last resort. The position means that from the moment GLH becomes involved in the provision of housing for individuals with learning disabilities, GLH begins the on-going process of making a positive difference to that person's life.

GLH provides housing across England and Wales in a variety of forms, from one bedroom flats to shared houses for up to 5 people. We provide the type of housing that people need and do not have a stock of houses waiting to be filled.

GLH works exclusively with people with learning disabilities and has an in depth specialist knowledge of issues faced by individuals with learning disabilities. It uses this knowledge to tailor schemes to meet the needs of the individual.

GLH conducts face to face annual quality reviews with every tenant giving them not only the chance to comment on housing related issues, but also on the quality of care they receive. This has led to GLH working with individuals, families, care providers and commissioners to bring about a change in the type of care given and in some cases, a change in the organisation providing the care.

In addition GLH provides support to its tenants by providing twenty four hour telephone support to its tenants and deals with many calls directly, by taking ownership of the issue and supporting the tenant towards resolution.

This level of support is vital in affording our tenants a real chance of a sustainable tenancy and makes a real and tangible difference to their lives and the lives of their families.

2. GLH's relationship with Mencap

Whilst GLH is a separate registered charity from Mencap, it has a sole member which is Mencap. This means GLH work in partnership with Mencap, the country's leading provider of care and support for people with learning disabilities.

GLH is an integral part of Mencap's group structure, being part of the Housing and Support Business Unit which provides care to over 4,000 people across England. It is this relationship with Mencap which gives GLH the ability, if faced with a crisis, to tap into the resources of the largest learning disability care provided in the country with over 6,000 care workers.

4.2 How is GLH funded?

GLH is uniquely funded through a mixture of:

Loans with commercial lenders such as Nationwide Building Society (one of the largest social lenders in the country) and Triodos (an ethical bank).

Investment from Mencap, via a £7 million loan, at a preferential rate.

Capital grants from both Strategic Health Authorities and Primary Care Trusts. GLH has been recognised by Strategic Health Authorities and the Government's Valuing People Team for its valuable contribution in the resettlement of people with learning disabilities from long stay hospitals. See Appendix 5 for the parliamentary recommendation received through the re provision of Budock Hospital in Cornwall.

Investment from families and other individuals to bring their own capital into housing for their dependants.

Bond issue. GLH has raised £1.7m of ethical investment through this unique bond issue (the only charity to do so). This has enabled more people with learning disabilities to access quality accommodation around which they can build their lives.

Again, this marks GLH out as different from any other housing provider and shows our long term commitment to people with learning disabilities, using as wide a range of capital resources as possible to keep housing costs to a minimum.

It is partially through this funding mix that GLH can afford to fund the support provided through to its tenants.

4.3 The Geographical spread of tenants and staff

GLH's services to our tenants are co-ordinated from our central office in Manchester, where our Support Services, Property Services, Tenant Inclusion and Finance teams are based.

Our regional teams are located across the country. Each of the regional teams support a number of tenants and included in each team are two housing officers whose primary focus is to both visit tenants and co-ordinate the communication with care providers, families and commissioners on the tenants behalf.

We have the resources and structure in place which is capable of supporting our tenants and making a tangible difference to their lives. We cannot provide face to face contact 24 hours a day, but this is not our role. Our role, as a supported landlord is to directly provide support to our tenants whenever it is needed and particularly to intervene at any points of crises. This is a role we are committed to and able to fulfil.

5. How does GLH Operate?

5.1 Developing a new scheme

GLH always start with identifying the needs of the individual first and supporting the individual to find the right accommodation to suit their specific needs. GLH works in partnership with a number of external organisations and agencies to ensure that the care package helps our tenant to develop their own skills. GLH then supports the individuals, families and commissioners to access social housing which meets their needs.

5.2 Liaison with the tenant, their family and social services

We work closely with our tenants, key people in their lives, such as parents and the statutory agencies involved. This can range from our first point of contact in offering advice and information to families, through to the provision of supported housing itself.

Our tenant's well being is a priority to the success of GLH. For this reason, we maintain good relationships with tenants and others through regular contact. Social Services Departments and Health Authorities, through their funding of care packages, are an important stakeholder for tenants, however we know that they are under pressure and have finite resources. This often requires us to take the lead and advocate on behalf of our tenants when decisions are made that affect their lives.

Our liaison with all parties continues throughout a person's tenancy and we are always a point of contact and support. We fully understand and are proud of this responsibility and of the impact it has on our tenant's lives. Further details of this work are given in the examples of support document (Appendix 3).

5.3 Finding and adapting new properties

Before we seek to find any housing, we work with the person to understand their housing needs and capture these in a housing need assessment. Housing requirements range from needing to meet physical requirements for adapted bathing, to be physically robust to withstand challenging behaviours. We aim to ensure that these needs are met as this will enable all our tenants to have the best possible opportunity to live successfully in their community. We have also co-ordinated and made applications on behalf of our tenants for Disabled Facilities Grants to assist with the cost of adaptations to their homes.

5.4 Work before tenant moves in

Before a tenant moves in, we provide pre tenancy support services, to prepare the individual for the practical and emotional aspects of managing and moving to a tenancy. Our teams undertake pre tenancy accompanied viewing with tenants and their families. We provide advice on grants and benefits available for both the move and during their tenancy. Part of our approach is to ensure we undertake a comprehensive induction of each tenant to ensure they understand our and their responsibilities. We have worked with Speak Up, a self advocacy organisation for people with learning disabilities, to produce a tenancy DVD for new tenants, where our existing tenants contributed to help explain what rights and responsibilities tenants have and what it really means to be a tenant.

5.5 GLH's relationship with care providers and commissioners

GLH have in the past been willing not to enter into schemes where we were not satisfied with the quality of the care provider commissioned. GLH enters into management/service level agreements with care [provisions] which would allow GLH to prevent care providers entering our property given reasonable grounds

Throughout the life of the tenancy, GLH's Housing Team maintain contact with the care providers and monitor their performance through annual visits. We also complete desktop evaluations which look at relevant inspection reports from the regulators and meeting with commissioners.

It is recently becoming more common for the Commissioning Authority to re-tender the care package to ensure best value and best practise after a specific time. From our experience this often leads to a change of care provider, meaning that GLH, as supported landlord remain an important constant in tenants' lives when other major changes are taking place. Recently the care packages for all our schemes in Doncaster were put out to tender. GLH played a full role in the tender exercise and worked with the Local Authority to ensure the care provider met our high standards.

6. The Philosophy of Golden Lane Housing

6.1. How are we different from other landlords?

The philosophy of GLH is best summed up by the "GLH Promise". A copy of the promise is included in Appendix 2. The GLH trustees have given clear guidance to the staff team that this approach should underpin all our work." [I interpose here to say that Appendix 2 is a specimen of a "contract for supported housing services." It purports to be a contract whereby GLH agrees with the tenant to provide "support" of the nature claimed in these proceedings to be provided by GLH to its tenants. However, it is not contended by GLH that any such contract was entered into in any of the cases before me. Indeed, no copy of such a contract signed by any other GLH tenant has been produced. I would infer, from (for example) the reference to "annual service reviews" at [H 398], that this form of "contract" is a document which has come into being fairly recently: see paragraph 228 below. Mr Drabble has not in his submissions placed any reliance on it].

"In order to ensure that our promise is delivered our staff keep regular contact with tenants and their care providers, including formal quality service reviews to ensure the care and housing remains appropriate to the needs of the tenant. In previous years these reviews have taken on a different format but the principle was always the same, ensuring the well being of our tenants. Our scheme review is a comprehensive review done with each tenant, looking at their well being, to ensure they remain happy in their home and that their care continues to be appropriate for them. We remain a constant in our tenants' lives, which is especially important when there is a change in the care provider. When we become aware of any issues during the tenancy, we aim to act early to stop them escalating and are able to work with our tenants and other key people in their lives to resolve them.

Our Quality Review process ensures that we have a good understanding of all our schemes and how they operate on a day to day basis. As part of this process, a Quality Service Review report pulls together vital information about the tenant and their care package. We ask questions about how daily life is managed from social life to finances. All our staff have a good understanding of the communication needs of our tenants and we make sure that each Quality Service Review is conducted in the appropriate way. Each scheme achieves a rating of green, amber or red according to any issues identified and necessary actions plans are agreed."

[I interpose here to say that in his oral evidence Mr Parkinson said that use of the term "quality service review", and of the traffic light system (green, amber or red), had begun only after 2005/6; the term previously used was "annual visit." However, he said that the underlying emphasis of those visits has always been the same.[T12-13]]

"We believe this process ensures consistency in approach and offers us a way to fulfil our role in ensuring tenants' well being. Outcomes and concerns are shared with all involved and commit us to helping things improve where needed. We celebrate the schemes that are a success for our tenants and strive to support any that need improvement.

This can lead to very real changes for our tenants. For example, we have facilitated the move of one of our tenants from a shared scheme to a home of their own. This was a long process worked through with Social Services, the care provider and ourselves, as we recognised that the shared scheme was no longer suitable for the tenant's mobility, sensory and behavioural needs.

GLH also maintain regular liaison with the care providers in our schemes, meeting with their operational teams as part of our scheme review process.

We directly provide support and advice to our tenants about their entitlement and claims of Severe Mental Impairment (SMI) housing related benefits, including Council Tax Benefit. In relation to Council Tax, this involves supporting our tenants to claim SMI reductions due to their learning disabilities. As a supported landlord we have also ensured, where our tenants have had their rent through Housing Benefit restricted, that we have supported them fully in appealing against those restrictions. Our experience is that the majority of commercial landlords would have pursued tenancy enforcement actions, often leading to eviction. GLH are committed to supporting our tenants and have acted for our tenants through the review and appeal process and committed significant resources to trying to secure their rightful entitlement.

7. Doing ordinary landlord functions differently

7.1. Housing Support Line

GLH provides a 'one number' service which deals with all tenants' enquiries whether housing related or otherwise and attempt to resolve the enquiry by either providing a service directly or liaising with other providers. This one number makes it easy for tenants and their care workers to quickly reach us. This is a low call telephone number operated 24 hours a day 7 days a week. During non office hours, the line is switched to a subcontracted call handling service. In the event of an emergency this service would contact a senior member of the GLH team. We do not close a tenant call for help or assistance until the matter has been dealt with. In the past 3 months GLH has received 1453 incoming calls, of these 83% of calls relate to repairs and maintenance issues with the remaining 17% being advice and enquiry related calls." [I interpose here to say that Mr Parkinson's oral evidence was that the helpline received 7,573 calls in 2007, of which about 80% related to ordinary property management and about 20% were support related [T15]].

7.2 Repairs and Maintenance

These include reports of repairs and providing assistance with requests for adaptations due to change in the needs of our tenants. Our repairs service is delivered by two principal contractors instead of using lots of firms scattered across the country. We deliver training to their tradesmen in working with people with learning disabilities and this is provided by GLH staff and our tenants themselves. This training assists the contractors in overcoming some of their fears around working with people with learning disabilities, whilst ensuring that our tenants see the same person again and again who has an understanding of their needs.

Our repairs service is tailored and bespoke around serving the needs of our tenants. All our repairs are undertaken by appointment at a time convenient to our tenants, all tradesmen carry ID, and our tenants sign off the work when completed with the tradesmen. Many of the maintenance jobs we attend to for our tenants would simply be ignored by many other landlords. (Examples of this can be found in Appendix 3).

A repairs function is a general landlord function, however, [it is] the way GLH respond and deal with these enquiries which sets us apart.

7.3 Accessible Information for our tenants

As a charity who works only with people with learning disabilities, GLH have developed a recognised expertise in providing specialist accessible materials to our tenants to help them understand their responsibilities as a tenant through their Tenancy Agreement as well as specialist services that we provide to promote their well being.

We work closely with our tenants to produce accessible information and to establish standardised symbols that are recognised by them. These documents are approved as accessible by our tenants and receive the 'Tenant Stamp of Approval'.

We have produced the following accessible materials:

Tenants Application form

Tenants welcome letter

Tenancy Checklist

Tenancy Agreement

Tenancy DVD – rights and responsibilities

I am unhappy booklet

Housing Benefit authorisation letter

Step by step guide to reporting a repair

Repairs card

Works order form

Works completion form

Notification letters for the cyclical maintenance programme

Annual rent increase letter

Tenant Participation forums – invites/agenda pack/minutes

Open House newsletter

Voices Together forum newsletter

Notification letters to our tenants – complaints, issues, requests

Seasonal information

Events information – invitation/event packs

The following documents are currently being developed with our tenants and will be available in early 2008:

'Maintenance in my home' booklet

'Me & My safety – Keeping safe in my home' booklet

'Me & My safety – Keeping safe on the streets' booklet

'Me & My safety – Fire safety' booklet

'Me & recycling' booklet

Although producing tenancy related documents is a general landlord function, the way GLH has adapted those documents which sets us apart.

7.4 Tenant Inclusion

GLH has a dedicated member of staff in our team for Tenant Inclusion. This has enabled our tenants to have a vital role in the work we do and forms one of the many ways we maintain regular contact with them. Through this, our tenants are given choice, opportunity, respect and empowerment.

7.4.1. Tenant Participation Forums

Since October 2004 we have established 5 successful forums across the country each of which are held quarterly. Over 13% of our tenants regularly attend the meetings – and this figure is rising. Our tenants have developed skills and confidence to enable them to chair and participate in the meetings to have a say about the services we provide and discuss their well being. The forums work on many levels which have helped tenants gain social interaction and interpersonal skills in a working environment where everyone has an equal say and respect of each other. The skills and confidence gained through the participation to the Forum are transferable skills into their everyday lives. Other GLH staffs attend and support tenants at the meetings to engage and participate with them and help them make real contributions to the work of GLH.

Organising tenant forums is a general landlord function, however the expertise needed to organise these meetings for tenants with learning disabilities sets GLH apart from other landlords."

G. GLH'S STANDARD FORM TENANCY AGREEMENT

GLH's standard form tenancy agreement in use by 2004/2005 is described below. It was used in the Sheffield and Hounslow cases [S 13; H 32). The tenancy agreement in the Oxford case (being earlier in time – the tenancy was granted in 2001) was in a somewhat different form. The extent (in particular) of the parties' repairing and maintenance obligations is of some relevance to whether GLH provides "support."

The Agreement recites that "the premises are used as part of a project designed to provide supported housing for people with learning difficulties" and that "This Tenancy is granted to facilitate the provision of support for the Tenant. The nature of this provision, and the Tenant's obligations in relation to it, including, if applicable, any obligation to pay for it, are set out in a separate support agreement. Because the provision of support is fundamental to this Tenancy, it shall be regarded as a breach of this tenancy if the Tenant withdraws from or breaches the support agreement, and in the event of such a withdrawal or breach the Landlord may take steps to end the Tenancy."

By clause 1(4)(i) "the Landlord shall provide the services set out in the attached schedule for which the Tenant shall pay a service charge."

By Clause 2, under the heading "repairs and maintenance", GLH covenants as follows:

"(3) to keep in good repair the structure and exterior of the Premises.

(4) to keep in good repair and proper working order any installations provided by the Landlord for space heating, water heating and sanitation and for the supply of water, gas and electricity.

(5) To take reasonable care to keep any shared accommodation together with the common entrances, halls, stairways, lifts, passageways, rubbish chutes, and any other common parts, including their electric lighting, in reasonable repair and fit for use by the Tenant and other occupiers and visitors to the Premises.

(6) To keep the interior and exterior of the Premises in a good state of decoration and to redecorate as frequently as necessary.

By Clause 3 the tenant covenants (so far as material) as follows:

"(9) to keep the interior of the Premises in good and clean condition.

(10) to make good any damage to the Premises or the Landlord's fixtures, fittings and furniture or to the common parts caused by the Tenant or any member of the Tenant's household or any invited visitor to the Premises, fair wear and tear excepted, and to pay any costs incurred by the Landlord carrying out such works in default.

(12) to replace promptly any window panes broken by the Tenant or a member of the Tenant's household or invited visitor to clear[ing] drains or pipes blocked through the carelessness of neglect of the Tenant or a member of the Tenant's household or invited visitor or to pay the Landlord's costs on demand where the Landlord carries out such work in default.

(21) to accept Support Services offered by the Support Provider throughout the period of the tenancy and for so long as the Provisions of the Scheme relate to the Tenancy with a view to achieving aims and objectives discussed between the Support Provider and the Tenant."

I shall now proceed to consider in detail the facts of the three sets of appeals actually before me, with a view to making findings as to what support GLH has actually provided in relation to these claimants.

H. THE OXFORD CASE (CH/1246 and 1247/2007)

Introduction

The Oxford Property is a 3 bedroomed house in Headington, Oxford. It is and has since 2001 been occupied by the claimant tenants (Michael and Errol) pursuant to tenancies granted by GLH. The third bedroom is occupied by a person giving overnight care and support.

Mr McGoogan

Evidence was given on behalf of the tenants of the Oxford Property by Mr Mark McGoogan. He is and has since 2003 been the national housing development manager for GLH, and therefore a member of its senior management team. He reports directly to Mr Parkinson. He is a chartered surveyor by profession. He has worked for GLH since 1998. However, from 2003 to 2005 he was seconded for two days a week to the Department of Health as an expert housing adviser in relation to the Government's policy in respect of people with learning disabilities called "Valuing People." He accepted in answer to questions from Mr Bhose that he has no formal training in assessing the needs of autistic persons.

Mr McGoogan was selected to give evidence in relation to the Oxford Property because it was considered that he is the person at GLH who knows most about Michael and Errol. He was involved in 2000 and 2001 in relation to the move from their previous accommodation to the Oxford Property. At that time he was GLH's regional manager in the west region. However, he did not subsequently visit the Oxford Property until 15 August 2007, by which time GLH was substantially concerned with the issue in these proceedings.

Basic facts in relation to the Oxford case

On the basis of the documentary evidence and the evidence of Mr McGoogan (which I accept to the extent set out in the following findings) I find the following basic facts, which I think are uncontentious.

(a) Michael and Errol

Michael is aged 65 and is autistic, with severe learning difficulties. His needs are such that he is in receipt of 24 hour daily one-on-one care and support from the Ridgeway Partnership ("Ridgeway")(formerly known as Oxfordshire Learning Disability National Health Service Trust ("OLD")). He understands things which are said to him but does not himself verbalise, save in terms of a small language of his own, which his care staff are able to interpret. Mr McGoogan said that one would know by how he reacts whether what you have said is of any interest to him or not. He can be quite loud sometimes.

Errol is aged 42, and physically strong. He is also autistic and in receipt of 24 hour care from Ridgeway. He requires two on one care in his daily activities. He has no communication skills. Carers talk to him and think that he understands, but he says nothing back. However, he might, for example squeak if he is happy or shout or scream or jump up and down if he is not.

Neither Michael nor Errol's family play an active role in their care and support.

(b) GLH's initial involvement with Michael and Errol

GLH were approached in 2000 by Oxfordshire County Council ("the County Council") social services with a view to supported living accommodation being found for Michael and Erroll. They had been living together for 8 years, latterly in a separate unit in the Slade Centre, Oxford. OLD were their carers at that accommodation. However, it was considered by Social Services that that unit no longer met Michael and Errol's needs. Following a care assessment it was agreed that the most appropriate form of alternative accommodation was supported living. I accept Mr. McGoogan's evidence that GLH worked with social services to assess their housing and support needs, and that GLH led the process of searching for suitable accommodation. GLH prepared the housing needs assessments which were used to inform the search process. It was important that Michael and Errol remained in Oxford. GLH worked with social services, OLD and the tenants themselves and their support network for more than a year before their tenancies commenced.

At that time Michael and Errol were exhibiting challenging behaviour, and it was difficult for the staff to manage them at their then accommodation. For example, Errol had recently thrown himself down the stairs, and Michael would throw things over the fence. As a result, for example, the kitchen was locked, every drawer in the unit was locked, the furniture was bolted down, and what was not bolted down had been thrown around.

(c) Grant of tenancies

GLH found and purchased the Oxford Property. By tenancy agreements in writing made in June 2001 GLH granted to each of Michael and Errol an assured shorthold weekly tenancy of one bedroom, together with shared use of a living room, kitchen and bathroom in the Oxford Property. The agreements did not have some of the clauses relating to support which were contained in the later standard form agreements used in the Sheffield and Hounslow cases (see Section G above). However, the agreements did contain the recital that [the Property] was used as part of a project designed to provide supported housing for people with learning difficulties. By Clause 1(4) "the landlord shall provide the services set out in the attached Schedule for which the tenant shall pay a service charge." That schedule stated simply that the services to be provided were "so far as practicable to provide general counselling and support." It has not been contended by Mr Drabble that, after the end of transitional housing benefit in 2003, there was by virtue of that provision any continuing obligation on GLH to provide any counselling or support services. (As to this, see further paras. 63 and 66-7 below).

At the start of their tenancies Michael and Errol were guided by a member of GLH staff through a pictorial tenancy agreement in order to ensure they understood as far as possible their rights and responsibilities as a tenant. In view of the evidence which has been given as to their mental capacity, however, I doubt whether they can, even with such an explanation, have understood much of what was said.

Prior to the move to the Oxford Property and during the transition GLH assisted with suggesting and then carrying out adaptations to the property to meet Michael and Erroll's particular needs. For example, when walking round the property with the house manager from OLD it was mentioned by the house manager that curtains in Michael's bedroom would be no use because Michael pulled them off, and that as soon as it was light he would get up and disturb the rest of the house. Mr McGoogan suggested putting up a shutter on the outside of the window which only the care staff would be able to open, and arranged for that to be done. GLH also arranged for the installation of grab rails in the bath to allow Michael to get in and out of the bath unaided (although he does now need assistance), and laid the garden to hard standing (to reduce the risk of Michael throwing things over the hedge (which has a bus shelter on the other side)). These works were carried out prior to Michael and Errol actually moving in.

(d) The housing benefit claims and decisions

The initial rent under the tenancies was stated as being £425.41 per week, which was broken down into £212.83 by way of "net rent" and £212.57 by way of "service charge". The landlord was empowered to increase the net rent by giving at least one month's notice in writing.

On 1 February 2005 GLH wrote to each of Michael and Errol stating that with effect from 4 April 2005 the rent payable under the tenancy would be £252.17 per week, made up of a basic rent of £243.09 and a service charge of £9.08. The letter pointed out that (as appears to have been the case since the ending of transitional housing benefit in April 2003) the rent did not include any support charge. The letter was clearly in standard form, with the blanks for the amount of rent etc. filled in. The letter further stated (as part of the standard form): "Please ensure that when the Housing Benefit Application forms are due for renewal they are completed either by you or with the help of your support provider. If they are not returned to Housing Benefit you will lose your benefit payment."

On 4 February 2005 John Verge (then National Housing Manager for GLH) wrote to OLD confirming that the rent would increase from 4 April 2005 and stating: "As the support provider it is your responsibility to support the tenant in informing Housing Benefit of the increase in rent. Also when the Housing Benefit Application Forms are due for renewal they are completed either on behalf of or by the tenant."

On 9 May 2005 a renewed application for housing benefit was submitted on behalf of Michael. It was completed by a "visiting officer" of Oxford City Council ("the City Council") on his behalf. On 11 May 2005 a housing benefit review form was submitted on behalf of Errol. It was completed by a support team leader on his behalf.

On 22 July 2005 the City Council wrote to GLH stating that since 1 April 2003 the rent payable by the claimants had not included any support charge, and asking whether GLH was still providing support or contracting out for the provision of support to the claimants.

On 12 August 2005 GLH replied, stating that its managing agent, OLD, provided care and support on GLH's behalf to the Claimants The letter further stated that "GLH directly provides intensive housing management as well as providing additional support that we do not make a charge for."

On 22 August 2005 a rent officer determined that the local reference rent for each of the claimants' dwellings was £121.16 per week.

On 5 September 2005 the City Council decided that the amount of housing benefit payable to each of Michael and Errol was £121.16 per week, on the ground that the maximum benefit was limited to the amount of the rent officer's determination. That is the decision under appeal in these proceedings.

Michael and Errol appealed, contending that the rent was not necessarily limited to £121.16 per week because their accommodation was "exempt accommodation". One of the grounds for that contention was that GLH itself provided some support.

On 21 November 2005 GLH wrote to the City Council. The letter included a statement that "the housing related support GLH provides is currently charged at £0. This is because to date we have funded these activities through our charitable work, Mencap, GLH's Housing Investment bond, and fund-raising."

On 22 January 2007 the Tribunal rejected the contention that GLH itself provided some support and dismissed the claimants' appeal. By my interim decision on 17 October 2007 I set aside the Tribunal's as wrong in law.

(e) Contractual documentation relating to the provision of support

(i) Agreements between the County Council and OLD

By a contract dated 1 April 2000 between the County Council and OLD the latter agreed to provide the services set out in the contract in exchange for funding from the County Council. The contract relates to services at a substantial number of properties, and appears to have been regarded as applying (presumably by subsequent addition) to the Oxford Property. It has therefore been referred to as a "block" contract.

By Clause 4 "the Service Provider [i.e. OLD] shall during the Contract Period make available the Services specified in Schedule 1 and the tasks listed as the responsibility of the Support Provider in Schedule 5." Most of Schedule 1 was blanked out by the County Council, on confidentiality grounds, before providing a copy. However, Schedule 5 sets out what appears to be a full list of (i) housing management services comprised in the basic rent, (ii) housing services eligible for housing benefit (iii) maintenance services comprised in the basic rent (iii) support services which are "THBS eligible" (i.e. eligible for transitional housing benefit) and (iv) personal services which were "HB ineligible").

The services in category (iii) are listed under some 19 categories and are all shown as being the responsibility of OLD, rather than of the housing provider.

The contract recites that OLD "wishes to provide the Services to the County Council (including those services commissioned by the County Council on behalf of the Housing Provider)." The definition of "Services" states that it includes "services commissioned by the Council on behalf of the Housing Provider."

By Clause 15.2 "the payments of transitional housing benefit passed by the Council from the Housing Provider to the Service Provider as referred to in Schedule 2 shall cease to be payable on 31 March 2003".

Schedule 2 contains a provision that "The Council will pay the sum of £[blanked out] per annum (2001-2) to include any transitional housing benefit passed from the Housing Provider to the Support Providers for housing-related support under this Contract."

Schedule 4 contains a provision that "until 31 March 2003 housing related support is commissioned on behalf of the Housing Provider through the County Council as part of this Contract."

Clause 2.1 provided that the contract was to commence on 1 April 2000 and was to continue in force for a period of 3 years "unless terminated in accordance with the provisions of Condition 17 save that such parts of it relating to housing-related support as specified in Schedule 2 will cease to apply on 31 March 2003 without affecting the remainder of the Contract which shall continue in full force and effect."

The contract contains (in Schedule 3) detailed provisions for monitoring by the County Council of the services to be provided by OLD

It is reasonably clear that the intended effect of the contract was that housing related support was to be provided by OLD, but that since such support would until 31 March 2003 be eligible for transitional housing benefit (payable to the tenant and then by the tenant to the landlord as part of the rent), the housing related support was to be regarded as commissioned by the County Council on behalf of the housing provider (i.e. GLH in the case of the Oxford Property), and the sums payable by way of transitional housing benefit were to be regarded as passed by the housing provider to OLD. It is further clear, on the face of it, that the contract was intended to cease to apply to the housing related support when transitional housing benefit came to an end on 31 March 2003.

However, by a document described as an Interim Contract and made on 4 April 2006 between the County Council and Ridgeway, it was recited as follows:

"(A) The Council and the Service Provider have entered into various contracts for services as are more particularly described in Schedule 1 (the "Services Contracts")

(B) The Council wishes to ensure the continuation of the services for an interim period pending agreement of a new contract to cover all of the services provided under the Services Contracts and some additional services which are also more particularly described in Schedule 1

(C) This Interim Contract incorporates the terms and conditions of the Services Contracts and the Service Provider agrees to provide the existing and additional services under this Interim Agreement until the new contract is in place, on the terms and conditions of the Services Contracts, save as otherwise set out in this Interim Contract."

By Clause 1: "The Service Provider will provide the existing and the additional Services in accordance with the terms and conditions of the Services Contracts and the terms and conditions set out herein from 1 April 2006 until ...."

Schedule 1 listed four contracts, of which the first was the Agreement dated 1 April 2000 referred to above.

By a further Agreement between the County Council and Ridgeway dated 29 September 2006 the Interim Contract was in effect continued until 31 December 2008.

It is not wholly clear what the contractual position was in relation to housing related support after the end of transitional housing benefit on 31 March 2003. I would infer from the terms of the later interim contract, however, providing as it did for the continuation of all the services, that it was considered that from 1 April 2003 Ridgeway continued to be contractually obliged to the County Council to provide at the Oxford Property the housing related support listed in Schedule 5 (O p.327) to the contract of 1 April 2000, but that from that time none of those services were commissioned on behalf of the housing provider (i.e. GLH) and no part of the payment was to come from transitional housing benefit, but rather payment for all the services was to be made by the County Council direct to Ridgeway. Indeed, in a letter dated 21 November 2005 from GLH to Oxford City Council (O p.49) it was stated that housing related support "was previously paid through transitional housing benefit but now is paid direct to [Ridgeway] through a supporting people contract." It is, I suppose, possible that there was a separate contract between the County Council and OLD governing the position as regards housing related support from 1 April 2003, but no such contract has been provided by the County Council, who were asked to supply relevant contracts.

(ii) Management Agreement between GLH and OLD

By an Agreement dated 18 June 2001 between GLH and OLD, described as a "Management Agreement", it was in effect provided that OLD would carry out on behalf of GLH certain of GLH's housing management functions. I summarised the principal provisions in paragraph 6 of my interim decision dated 17 October 2007, and so do not set them out here. For example, OLD agreed to issue tenants with an assured shorthold tenancy agreement, and to collect the rent. By Clause 15.1 OLD agreed to collect the rent and other charges due under the tenancy agreements and to "remit from the same the sum of £206.63 per week per tenant to GLH and to "apply the sums retained from the rent and charges collected to the provision of the support services to the tenants." Although there is a reference there to support services, in fact the matters which OLD agreed in the Management Agreement to carry out were primarily strictly housing management functions of GLH. However, one partial exception to that was that in Clause 11.2 OLD agreed "in close liaison with GLH to provide the tenants with assistance and advice concerning their entitlement to income support, housing benefit or any other relevant welfare benefit." Another exception is that in Clause 12 OLD agreed to assist tenants to find suitable alternative accommodation if the property was no longer suitable for them and GLH agreed to provide OLD with such assistance as OLD might reasonably request.

Mr McGoogan stated in his witness statement that "GLH have an agreement with [OLD], as part of this agreement it outlines that if we and our tenants were ever unhappy about the quality of care, GLH has the ability to teminate the agreement and work with social services to source a more suitable care provider." He accepted in cross-examination that the Management Agreement contains no such provision.

Mr Drabble does not contend that any of the support which OLD gives to the tenants is given on behalf of GLH, under the Management Agreement. That is no doubt because, since the coming to an end of transitional housing benefit in April 2003, OLD has been paid for such support by the County Council as the body having statutory responsibility to provide care services and/or as the Supporting People administering authority.

(iii) Agreements between the County Council and the Claimants

There are also in evidence unsigned care plan agreements between Oxfordshire County Council and Michael and Errol dated 1 August 2007 containing a "summary of the needs that we have agreed" and "the agreements and/or Help arranged by the local authority." Michael and Errol are said in the Agreements to require 24 hour support, to be provided by Ridgeway. There are spaces in the standard form agreements for details to be given of "help that other people have agreed to give" and "any unmet needs and risks identified". Nothing was inserted in those spaces.

However, no detailed care plans or assessments are in evidence. In a Direction which I made on 17 October 2007 I directed that the local authority parties (in this case Oxford City Council) should seek to obtain (among other documents) care plans. The County Council were asked for and supplied relevant documents, but have not supplied any care plans as such, which suggests that there may not have been any.

The support actually provided by GLH to the Oxford claimants: GLH's evidence

During the cross-examination of Mr McGoogan by Mr Bhose it became apparent that Mr McGoogan was referring to a document which was not in evidence. It was made available and copied. It is headed "Mr McGoogan's Girdlestone file INDEX". I shall refer to it in this part of my decision as "the Schedule". It contains a list of dates when visits to the property were made by GLH, the name of the person who visited, and a short description. Mr McGoogan said in evidence that it was prepared as an aide memoire by obtaining information from a variety of files which were in different locations across the country – this property had been moved from the west region to the south east region and then back again. The relevant documents in those files are not in evidence (save where referred to below).

The Schedule shows a total of 7 visits in the years 2001 to 2006 (both inclusive), the first visit shown being one on 11 October 2001. Mr McGoogan's evidence was that, although it recorded every visit by him, he very much doubted whether it contained a record of every visit by GLH staff. He said that GLH staff are now told to record visits, but that as it was not part of his operational responsibility he could not say when a system for recording all visits started. He said [T 57] that he did not think that GLH had been good at record keeping.

The first visit listed on the schedule was a visit by John Verge (then the housing consultant for the west region) on 11 October 2001 "to discuss noise issues following complaint by neighbour." Mr McGoogan gave evidence [T 44] that the problem was that Michael had been making a lot of noise in the garage and the elderly couple next door had complained to the environmental health officer. Mr Verge visited and attended a meeting with the environmental health officer and the house manager from OLD to discuss possible solutions. It was considered that there really was not much that could be done to soundproof the garage. It was agreed that the house manager would approach the neighbours, who did in fact become quite friendly and the matter was resolved. The garage was subsequently partially boarded out by GLH because the use of it changed in that Errol started using it for his wood working room, and it was necessary to seal off the electrics, cabling etc.

The Schedule then shows visits by Mr Verge on 6 February 2002 and 20 February 2002 which are stated on the Schedule to have been in relation to housing benefit issues. Mr McGoogan's evidence was [T 61] that when GLH staff do visits they are alerted to many things, but there are no documents evidencing what else might have been discussed at these visits.

Next on the Schedule is a visit two years later, on 20 February 2004, by Harvey Gardner (a development manager for GLH) which is stated to be in respect of "HM [housing management], HB [housing benefit] and maintenance issues." Mr McGoogan thought that Mr Gardner might have dealt with the specification for boarding out the garage at that time, but no documents were produced to back that up.

Next is a visit on 21 December 2005 by Titilope Fakoya (of GLH), which is described on the Schedule as follows: "visit from Titilope region 3 team – JV remembers alerting Claire Hall to do visit quickly. No record on file of visit documents but letters advising visit were sent." Copies of what are said to be the letters to Michael and Errol there referred to were produced, but they are dated (apparently wrongly) 26 April 2004. They stated:

"GLH would like to visit every tenant once a year to see if you are happy in your home. I will be coming to visit you on 21 December 2005 at 11.45 a.m.. Please find attached a Supported Living Your House booklet. This needs to be completed before the visit and returned to me in the envelope enclosed. If you need support to fill this in ask your support provider to help you."

It is clear from a computer printout (headed "Citrix Presentation Server Client"), which appears to record the content of an e-mail from Ms Fakoya following her visit, that she had identified a number of repair and maintenance issues which needed to be dealt with. It concluded by saying that Nigel Litton would visit the site.

A copy of what appears to be a specimen of the "Supported Living My Home" booklet referred to in that letter is in evidence at O p.95. (During the hearing a copy of a booklet in the same form and said by GLH to have been completed on behalf of Peter in the Sheffield case was produced by GLH). In the "Introduction" it states: "This book helps us to find out what you think about the support you get. The answers you give will help us to know what we can do to make things better." The booklet contains questions about the tenant's opinion of (among other things) the support he/she is receiving, and of whether the home is a nice place to live and is right for his/her needs. It is clear that neither Michael nor Errol would have been capable of completing it unaided. Given that the OLD personnel actually providing day to day care and support would have had to complete it, or at least to supply the information to be recorded in the document, it is difficult to see how it could, if completed, have contained anything but positive comments about the support. No copy of such a booklet completed on behalf of Michael and Errol at either this visit or any other visit was produced by GLH. I find that no such booklet was ever completed in relation to the Oxford Property.

Mr McGoogan accepted in cross-examination that at least part of the reason for the visit of 21 December 2005, and for it needing to be done quickly, was that the rent had recently been restricted by the decision of the City Council at issue in this appeal. In his witness statement Mr McGoogan said (under the heading "monitoring our tenants' well being – quality service reviews" ) that "recent visits to Michael and Errol in 2005, 2006 and 2007 show that they are not only happy in their home but that they are more settled and content." However, he accepted in cross-examination that, as the note on his Schedule indicates (see para. 98 above), there was no annual visit report or other record which shows what actually happened at the visit on 21 December 2005, or that it related to anything other than maintenance. His witness statement was therefore inaccurate, so far as the 2005 visit was concerned. It was further inaccurate in that (as appears below) there was in fact no visit in 2006 at which support issues were considered in any way.

The next entries on the Schedule are in relation to visits by Nigel Litton (a maintenance surveyor employed by GLH) on 1 February 2006 and 3 April 2006 in relation to "various maintenance issues highlighted by Titilope [Fakoya] in her visit."

Next on the schedule is a visit by Nicki Rhodes of GLH on 11 January 2007, the description on the schedule being "Annual Quality Service review – year 2006/7 visit by Nicky Rhodes region 3 team". A copy of the resulting "Annual Scheme Review Form" was produced during the hearing, again as a result of Mr Bhose's cross-examination. It is a standard form document to be completed by the person making the visit. Under "support arrangements" the following questions are set out: "Have any support arrangements changed since the last review?" "Have any funding issues changed?" In addition there are boxes where details of complaints to GLH or the support provider from tenants/relatives, advocates or statutory bodies are to be given. The answers inserted by Ms Rhodes following her visit are remarkably uninformative. Mr McGoogan described it in evidence as "a pretty poor review." [T 66]. It records that both tenants were met, a box was ticked stating that the support arrangements had not changed since the last review, that problems in relation to housing benefit had arisen, boxes were filled in stating that there had been no complaints to GLH or the support provider from tenants etc. And then in a large box headed "notes/agreed action from scheme review meeting" it was stated that "Both tenants seemed very happy with both their home and their support. They both had interests that the support providers were supporting them to achieve. The team leader showed an interest in the tenant participation meetings and I agreed to forward her further information." It is in my view clear, having regard to the very severe nature of the tenants' disabilities, that Ms Rhodes could only have obtained information from the carer(s), rather than from the tenants themselves.

There is an "annual condition survey" attached to the review form relating to the visit on 11 January 2007 which records (as either "good, fair or poor") the condition of the various parts of the building.

The next visit on the Schedule is one by Brian Shortall of GLH on 8 August 2007, which resulted in the production of a much fuller report, commenting on the tenants' lifestyles and the quality of the support which they were receiving. For example, the report states that "I had no areas of concern about how David [which should have read "Michael"] and Errol were treated by staff" but that "the manager ..... was open, enthusiastic and committed but I feel that the tenants could be interacting more with the local community by now." Various other suggestions for possible improvements were made, including the possible use of assistive technology in monitoring Michael's safety in the bathroom. The comments concluded by saying:

"I think if we were to reprovide for this scheme we would be looking at individual needs of the residents – do they wish to remain as a pair I saw little evidence of this – they seem to be mostly oblivious – though largely accepting of each other. I don't think we would put them so close to a hospital – I think we would go for something nearer the community – shops etc. "

There were then four subsequent visits to the property by Mr McGoogan. A file note made by him in relation to a meeting on 9 November 2007 states that he met with Oxfordshire social services and informed them that it was felt by GLH that the support service being provided by Ridgeway was ""old fashioned" and perhaps a little staid", and that social services agreed to think about that. He said in evidence that Ridgeway have now decided to put the Oxford Property into their new support model, called a "cluster" model. The note also records that social services said that neither tenant qualified for payments from the Independent Living Fund (ILF), which surprised him (Mr. McGoogan). Mr McGoogan's oral evidence was that the County Council looked into it and found that it was a technical error not to have claimed ILF funding and that they had now claimed it and the overall saving for the tenants was about £25,000 a year per tenant.

There have also been very recent recent discussions between GLH, Ridgeway and the County Council about the possibility of altering the property so that a third tenant can be accommodated.

Mr McGoogan also gave in evidence, as an example of how dealing with a mere repair item can lead to support beyond that, of how on a recent visit (not to this property) relating to maintenance a GLH surveyor was alerted to the fact that the tenant was hiding food behind radiators etc. The surveyor came up with the idea of putting a post box in the building in which the tenant could "post" the food, rendering the problem more manageable. [T55]

Mr McGoogan accepted that there were no records of anything amounting to an annual visit until the visit in December 2005. However, he said in answer to Mr Bhose, that "our record keeping is probably not what it should be".

Mr McGoogan said in his witness statement that "GLH has given support to both Michael and Errol throughout their tenancy, be this one to one support via our regional staff or telephone support when Michael and Errol call our helpline." The latter part of this statement was (as Mr McGoogan accepted in his oral evidence) plainly wrong, as Michael and Errol would clearly not be capable of using the helpline.

Mr McGoogan was asked by Mr Bhose whether, apart from the schedule of visits, there is any record of any calls made by either of the tenants or their carers to GLH. He replied that GLH probably had some records on an electronic system relating to maintenance, but apart from that there were no such records. Mr McGoogan said that there are support issues other than maintenance which 24 hour carers do telephone GLH about, but that there was no record that carers for Michael and Errol had done so.

Mr McGoogan was asked by Mr Bhose how long the system of annual reviews had been in place. He replied: "I couldn't tell you precisely, it's been in place for some time. It did start off when we first started at [GLH] as a, simply as a visit, it then moved to a different form of visit and now it's called the quality service review. [T 66].

Mr McGoogan said in evidence, with regard to the absence of detailed care plans, that "I suspect what is at work here is a very good support provider, care provider, and they essentially fulfil that part of that function and try to cover some of the gaps that might have existed. " [T 76] .

Mr Mc Googan also gave evidence that, because Errol had taken to sitting by the patio door in the lounge with the result that there was not enough ventilation, GLH had been asked to open up one of the windows which was closed and fixed shut, but the double glazing firm had gone out of business, which had resulted in complications.

It is GLH's evidence that neither Michael nor Errol has in fact ever attended a tenant participation meeting.

The support actually provided to the Oxford claimants: summary of my findings and conclusions

I would summarise my findings relevant to the support provided to Michael and Errol at the Oxford Property as follows

(1) GLH has no contractual or statutory obligation to provide any support to Michael and Errol.

(2) The County Council, as the local authority with statutory duties and powers in relation to the provision of care and support, has commissioned Ridgeway (formerly known as OLD) to provide 24 hour care and support. The County Council has the power and duty to monitor the continued effectiveness of that care and support. There has been no criticism of the exercise by the Council of its powers and duties. However, no detailed care plans would appear to have been drawn up by the County Council.

(3) Ridgeway are and have since the outset of this scheme been and have been regarded by GLH as very good support providers. No criticism whatever of the support provided by them was made until the quality service review in August 2007.

(4) OLD provided the assistance in connection with Michael and Errol's initial move to the property described in paras 57-8 and 60-1 above.

(5) GLH did not visit the tenants with a view to monitoring the continued adequacy of the support and accommodation until January 2007. Although the letters informing the tenants of the visit in December 2005 stated the purpose of the visit as being "to see if you are happy in your home", I find that that visit was in fact concerned solely with maintenance issues. Had the adequacy of the support and accommodation been evaluated at that visit, I would have expected there to be a written record of that. Similarly, had there been any visits before December 2005 in which the continued adequacy of the support and accommodation had been considered by GLH, I would have expected there to be a record of that, and I therefore find that there were no such visits. It is difficult to see what would have been the point of evaluating the continued adequacy of the support and the accommodation in meeting the tenants' needs if no record of the evaluation was kept.

(6) At the visit in January 2007 the continued adequacy of the support and accommodation was considered only cursorily. A much more detailed review was purportedly carried out at the visit on 8 August 2007.

(7) At a visit on 11 October 2001 GLH discussed with OLD a complaint by a neighbour about noise coming from the garage. But this ended up with it being agreed that the house manager (i.e. an OLD employee) would approach the neighbour.

(8) At some point, possibly in 2004, GLH partially boarded out the garage in order to render it safe for use by Errol for woodworking.

(9) GLH have assisted on a number of occasions in connection with housing benefit, but it is not clear what that assistance consisted of. Since 2005 GLH have of course assisted in relation to the issue in these proceedings.

(10) GLH has not been able to produce any evidence that carers for Michael and Errol have used the 24 hour telephone line for any specific matters not involving ordinary property management. I therefore find that there has been no such use of the telephone line. Michael and Errol are of course not capable of telephoning themselves.

(11) Neither Michael nor Errol has ever attended a tenant participation meeting.

(12) The recent discussions about the possibility of altering the property to enable a third tenant to be accommodated do not seem to me to amount to GLH doing more than carrying out its property management function. Clearly GLH's consent would be necessary for any such scheme.

(13) The evidence about the recent request to open up one of the windows which had become fixed shut is in my view also probably no more than a repair item for which GLH is in any event responsible.

(14) At a meeting with the County Council on 9 November 2007 Mr McGoogan mentioned the possibility of obtaining money from the Independent Living Fund. But that seems to have arisen not in the course of GLH providing support to Michael and Errol in relation to their finances, but in passing during the course of a conversation about the possibility of a third tenant being introduced. It was agreed that the matter would be looked into by the County Council, rather than by GLH.

I THE SHEFFIELD CASE (CH/2805/2007)

Introduction

The Sheffield Property is a 5 bedroomed house in Sheffield. It is and has since August 2004 been occupied by the claimant tenant, Peter, and three other tenants with learning difficulties, pursuant to tenancies granted by GLH. The fifth bedroom is occupied by a person giving overnight care and support.

Mr Dugher

Evidence was given at the hearing on behalf of Peter by Mr Rod Dugher. He is a senior housing consultant with GLH. He is responsible for managing the GLH housing team, and so has a national role in that respect. He has worked for GLH for 6 years. Initially his role was regional, covering the area which included Sheffield, which is how he came to be involved with Peter and other residents of Fairthorn.

Basic facts in relation to the Sheffield Property

On the basis of the documentary evidence and the evidence (both in his witness statement and orally) of Mr Dugher (which I accept to the extent that it is set out in the following findings), I find the following basic facts, which I think are uncontentious.

(a) Peter

Peter is now aged 32. He has profound and multiple learning difficulties. An overview of his disabilities and the support which he in practice requires is set out in the very detailed support plan prepared by Home Farm Trust on 28 April 2007 [S 285 onwards]. He does not speak but has a fairly good understanding and is able to use Makaton sign language (a very basic form of sign language) to communicate. When Peter is happy he will smile and make "cooing" noises. He enjoys communicating by clapping hands with people. It is easily apparent which activities Peter particularly likes. He has a close relationship with his parents, who also live in Sheffield, and he regularly visits them at weekends.

Copies of Service plans for home support, drawn up by Sheffield City Council ("Sheffield CC") are at S 279-284. That at p.282 states that the particular support dealt with in that plan "forms part of an overall 24 hr package in a supported living house."

(b) Provision of support by Home Farm Trust

That 24 hour care, supervision and support is and has at all material times been provided by Home Farm Trust ("HFT"), who are commissioned to do so by Sheffield CC.

HFT is a national charity and an established national provider of a wide range of services for people with learning disabilities. According to HFT's support plan [S 300A] "HFT uses a variety of measures that monitor and check performance and provide assurances and evidence that the service is being delivered to specification and on time. HFT has a well established quality assurance system which has been in operation for 5 years." An example of one of HFT's care plan meeting reports, considering in detail the adequacy of the support which Peter was receiving (albeit during his time at Fairthorn), is at [S 300K].

HFT has a longstanding relationship with GLH whereby HFT provide support to GLH's tenants in a range of supported living schemes across the country [S 152].

(c) GLH's initial involvement with Peter

Peter has received care and support from HFT since 1995. Until 2 August 2004 he lived in Fairthorn, a large registered care home in Sheffield owned and managed by HFT. There were 15 other residents in that home, split into 3 flats. However, HFT decided to close that accommodation because it considered that it had ceased to be appropriate to meet the needs of the residents. GLH was approached at the point when it became clear to HFT and Sheffield social services that there was no appropriate housing available either from the local authority or local housing associations. GLH started working very closely with HFT, as well as the residents and their wider support network, to discuss the housing options available and to put together very detailed housing specifications that would outline the needs of each individual.

That work started in 2002, some 18 months before Peter and other residents of Fairthorn became tenants of GLH. During that period GLH attended at least 20 planning meetings with HFT.

One of the options explored in the planning meetings was that of GLH acquiring properties which would meet the needs of Peter and the other residents. It was a requirement of the care plans of Peter and the other three residents of Fairthorn who had chosen to live together that there be a carer sleeping on the premises at night. This meant that a 5 bedroomed property was needed. In addition, it was desirable that the accommodation be close to local amenities in order to promote the tenants' independence, including better access to public transport, health care services, education etc. It was also considered desirable that the activities and college attended by Peter and the other residents were accessible from the property. (Fairthorn had been in a relatively rural location).

GLH located and acquired the Sheffield Property (although according to a letter from GLH's solicitor [S 91] GLH merely had a lease of 7 years granted by HFT).

GLH carried out adaptations to the property in order to ensure that Peter and the other residents could live comfortably there. Those included non-slip flooring in the kitchen and all bathrooms and WCs, window restrictors to all windows, laminated internal glazing, additional handrails to the stairs and additional external lighting, and an alarm connected to the front door to alert care staff if it was opened. These works were carried out before the tenants moved in (paragraph 4 of Mr Dugher's witness statement). I also accept Mr Dugher's oral evidence [T 93] that prior to Peter moving in GLH, owing to Peter's tendency to play with water and in order to avoid the risk of flooding, installed self-closing taps.

At around the time of commencement of the tenancy GLH provided two half-day training sessions to the HFT care team to increase their knowledge and understanding about the differences between a supported living scheme and a registered care home. [H 371; T92].

(d) Grant of the tenancy

On 4 August 2004 GLH granted to Peter an assured shorthold tenancy , commencing on 2 August 2004, of one bedroom in the Sheffield Property, together with shared use of the living room, dining room, kitchen and bathroom. The tenancy agreement was in GLH's standard form. By Clause 1(4) of the Agreement "the landlord shall provide the services set out in the attached Schedule for which the tenant shall pay a service charge." That schedule contained five items. The second to fifth items required the landlord to keep clean, so far as practicable, the tenant's bedroom, the communal parts and the exterior windows and to keep the exterior areas maintained and the gardens in good order. The first item required the landlord "as far as practicable to provide general counselling and support."

The initial rent under the tenancy was stated as being £177.19 per week, which was broken down into £136.72 by way of "net rent", £40.47 by way of "service charge" and nil in respect of "other charges." The landlord was empowered to increase the net rent by giving at least one month's notice in writing. A more detailed breakdown of the rent which was produced by GLH for housing benefit purposes [S 33] showed that no part of the rent was payable in respect of support provided to Peter by GLH. GLH's contention to Sheffield CC [S.63] was that "the housing related support GLH provides is currently charged at nil. This is because to date we have funded these activities through our charitable work, Mencap, GLH's housing investment bond, and fund-raising." Again, it has not been argued by Mr Drabble that the provision in the Schedule to the tenancy agreement relating to counselling and support did in fact impose any obligation on GLH to provide any counselling or support.

At around the time of the signing of the tenancy agreement Peter was given a pictorial tenancy agreement in order to attempt to assist him to understand his rights under the tenancy, and Stephanie Lumley, a GLH housing manager, helped to guide Peter through the tenancy agreement [H 371]. In oral evidence [T 117] Mr Dugher said that at that meeting GLH would have gone through the accessible tenancy agreement with Peter and his care team, and looked through GLH's responsibilities as landlord and Peter's responsibilities as tenant.

(e) The housing benefit claim and decision

On 5 August 2004 Sheffield CC received a claim form for housing benefit and council tax benefit completed on behalf of Peter by Matthew Driver, an assistant services manager with HFT. It was explained on the form that "Peter unable to complete due to learning disability." It was stated on the claim form that no part of Peter's rent was payable in respect of "personal care and support." On 23 August 2004 the Council received a further claim form, completed by Peter's appointee. In a box for further information it was stated that "the Claimant has a learning disability and receives care and support from [HFT]."

Sheffield CC referred the rent to a rent officer, who decided that the "claim related rent" was £50 per week.

On 18 October 2004 the Council decided that the maximum rent which could be used in calculating the Claimant's housing benefit entitlement was £50 per week. That is the decision now under appeal to me. Eventually, after considerable correspondence an appeal was lodged on behalf of Peter on 22 September 2005. One of the grounds of appeal was that GLH itself provided some support to Peter.

The appeal was heard by an appeal tribunal on 29 May 2007, which dismissed the appeal, finding that the support provided by GLH was not more than minimal. By my interim decision made on 17 October 2007 I set aside the Tribunal's decision as erroneous in law.

There are 9 other tenants of GLH in Sheffield who have appealed in similar circumstances, of whom 8 were former residents of Fairthorn. Three of those are of course the other three tenants of the Sheffield Property. Those appeals have been held in abeyance pending the outcome of this case.

(f) Contractual documentation relating to the provision of support

(i) Agreements between Sheffield CC and HFT

A copy of the very detailed terms of agreement between Sheffield CC and HFT, setting out the terms on which support is provided, is in evidence at [S 221] onwards. It includes a term [S 273] that "the Purchaser [Sheffield CC] shall monitor the Service Provider to evaluate the Service Provider's performance against the standards in this service specification ."

(ii) Management Agreement between GLH and HFT

On 2 August 2004 a Management Agreement in writing was entered into between GLH and HFT in the same form as that relating to the Oxford Property. I summarised the main provisions in paragraph 8 of my interim decision dated 17 October 2007. I would make the same comments in relation to it as I made (see paragraphs 88-90 above) in relation to the Management Agreement dated 18 June 2001 in respect of the Oxford Property. This Management Agreement was of course entered into after the transitional housing benefit scheme had already come to an end, but Mr Drabble does not contend that it had the effect that any of the support provided by HFT was provided on behalf of GLH.

The support actually provided by GLH to Peter: GLH's evidence

(a) General

I accept Mr Dugher's evidence that very soon after he moved in Peter was disturbed by neighbours having a barbecue. Emily Collinson of GLH spoke to the neighbours, since when there has been no issue. [H 373; T 94].

I further accept Mr Dugher's evidence that it became apparent after Peter moved in that he had been touching the gas cooker and care staff were worried about the risk which this posed to Peter and contacted GLH. GLH met the HFT care team at the property and after discussion GLH arranged for the installation of a secondary on/off valve to the gas appliances that was out of sight just under the kitchen units, in order to minimise the risks to Peter and the other tenants. [H 372; T 93].

In addition, it was found by HFT staff after Peter moved in that there was a risk of Peter scalding himself with water from the hot taps, and GLH at HFT's request therefore installed temperature control valves on each hot water supply. [H 372; T93].

I further accept the evidence in Mr Dugher's witness statement [H 373] that at a visit by GLH in December 2007 the care staff wished to look into ways of reducing fuel bills. Emily Collinson of GLH has since visited and agreed to help the care staff to apply for a warm front grant on Peter's behalf. I do not think that that involved more than ordinary housing management. GLH's consent to the energy saving works would clearly be necessary, and the works will also enure to the benefit of GLH.

Tenant Participation Forums for properties in the area which includes the Sheffield Property are held alternately in Rotheram and Nottingham. Mr Dugher's oral evidence [T 126] was that they are held at least 3 times a year. Recent meetings have looked at safety in the home, safety on the streets, recycling and fire safety. Peter is sent information about meetings and a newsletter about what has been happening in other forums around the country. Mr Dugher's oral evidence [T 114] was that Peter attended one such meeting on 2 December 2005 with his care team, but has chosen not to attend since, that choice having been communicated to GLH by his care team from HFT.

In the north of the country GLH employs one building contractor, Anvale, who deliver all their maintenance services. Their tradesmen take part in a training course, put together and run by GLH. This training is designed to ensure that people working on behalf of GLH have a good understanding of learning disabilities. [H 372]

During the hearing before me Mr Dugher produced a document headed "[the Sheffield Property] Contacts", which is a list of contacts between GLH and third parties relating to the Sheffield Property from before the commencement of the tenancy down to 22 April 2008. Mr Dugher's oral evidence [T 100 onwards], which I accept, was that it was prepared over a period of about 3 months for the purposes of the hearing as an aide memoire. The information in it is drawn from a variety of sources, including tenancy files and the Access Management System ("AMS"). Mr Dugher said of the AMS that "it's a computerised record system, and what we have increasingly done, particularly over the last year, is made sure that entries are recorded on there where calls come in for example to the 0845 number, or are dealt with by our central team there." [T 103]. He said that it was not exhaustive of contacts with HFT staff at the Sheffield Property, because, for example, calls to his mobile (and he spends the vast majority of his time out of the office), or to mobiles of his colleagues, would not be logged. [T 102; 104].

Mr Dugher stated in paragraph 6 of his witness statement that "From [the Sheffield Property] since 2004 we dealt with over 80 calls. These have included reports of repairs, adaptations required and general enquiries and advice." In cross-examination by Miss Perez he accepted that all the calls recorded on the "contacts" list and shown as "AMS Contact" were in relation to repairs, and that he was not able to point to any calls relating to "general enquiries and advice." [T 104].

A number of the events listed on the "contacts" list relate to action taken by GLH in relation to housing benefit, but very little detail is given. The vast majority of the housing benefit entries appear to relate to the question whether the rent eligible for housing benefit is restricted to the amount of the rent officer's determination.

Mr Dugher gave evidence [T 105-6] that things which came in as a repair could lead to asking what was causing the need for repair. He gave an example from the Sheffield Property where the contractors were sent in to deal with small damp patches coming from the attic shower unit just above the door frame (entry no 109 on the contacts list, dated 17 October 2005). He then got a call from the care staff saying that there was damp on the ceilings as well and that the problem had not been fixed. Mr. Dugher followed this up with the contractor who said that all that they had done was to put additional sealer round the bath (the shower being a shower over the bath). It emerged on further investigation by Mr Dugher with the care staff that Peter and the other tenants get a lot of water on the floor when having a bath, and he was able to encourage the care staff to mop it up.

Mr Dugher also [T 106-7] gave the example (no. 0191 on page 19 of the "Additional Examples of Support" Bundle – see para. 216 below) of a case in Nottingham where in 2005 a telephone call was received out of hours to say that a fence had been set on fire in the night. GLH arranged for the replacement of the fence through insurance but then investigated why this had happened. Mr Dugher went to the property and it emerged that the tenants had been having problems with local children and he followed it up with the care staff and a community police officer.

However, as regards Mr Dugher's evidence referred to in para. 148 above (80 phone calls), I am unable to find that there have been any calls or other contact in relation to the Sheffield Property between GLH and HFT support staff relating to matters other than repairs and maintenance, adaptations, or housing benefit. I am unable so to find because no specific evidence of any such additional matters has been given, and in view of the detailed nature of the "Contacts" list.

(b) Visits by GLH to the Sheffield Property

Mr Dugher gave evidence [T 117-8] that during the first year of the tenancy he had visited the Sheffield Property on a number of occasions, not recorded on the contacts list, to see whether Peter and the other tenants were settling in OK. However, in the absence of further detail as to what happened at such visits. I am unable to find that such visits were or gave rise to anything amounting to "support" provided by GLH.

Mr Dugher gave evidence [T 118] that there was no recorded formal review visit during the first year of the tenancy (August 2004 to August 2005), and that he could not recollect such a visit. I find that there was none.

The first mention of a scheme review on the contacts list is on 19 January 2006, described on the list as "property related scheme review." Mr Dugher said [T 120] that a "scheme review proforma" was prepared in relation to the visit, and that the only matters mentioned in it related to repairs. A copy of a document headed "Scheme Reviews Pro-Forma", relating to this visit, was produced during the hearing before me. Below the heading it states: "Comments/works required from Annual Scheme review form to be transferred onto this form. Form to be e-mailed for action to PSD." This particular document is clearly designed simply to record the works which were found at the visit to be necessary, and it was completed with details of the works necessary in relation to each room. The reference at the top to the "Annual Scheme review form" indicates that it was contemplated that there might be some other document, relating also perhaps to matters other than repairs. However, no copy of any such additional document was produced. I find that the only matters to which consideration was given at this visit were repair and maintenance matters. Had other matters been considered, the results would surely have been recorded in writing and a copy kept in GLH's files.

The next recorded visit was on 4 January 2007, where the entry on the Contacts list reads "Emily and I visited the property and met with staff and tenants, the property was well presented and homely and both staff and tenants were keen to see us and show us round. Django showed his room which was full of dolphin pictures and quilt cover. Sydney was tidying up in the kitchen but did want to know if we wanted a drink. All staff and tenants got on well and welcomed us into their home." However, no copy of a review form relating to this visit was produced by GLH.

The next recorded visit was on 14 February 2007 when Lynda Wardell, according to the contacts list "visited today and arranged annual visit for 28 February 2006 [clearly meaning February 2007]. Issues re gas fire spoke to Louise re this. All OK." Then for 28 February 2007 there is an entry "QSR" "Supported Living in My Home, booklet from GLH QSR undertaken by Emily Donovan." Again, no copy of a review form relating to this visit was produced by GLH. However, GLH has produced a copy of a completed "Supported Living My Home" booklet. It is said by GLH to have been completed on behalf of Peter, although the signature in the space at the end marked "signed by the tenant" is illegible – it is not in fact clear that it relates to Peter, rather than one of the other three tenants. It was signed by Emily Donovan, said to be the "Housing Manager", on 28 February 2007. The comments on the form appear to be in her writing. It is my view clear that the comments must have come mainly from the HFT staff, rather than from Peter himself. For example, under the heading "health care" is a question (to be answered "yes" or "no"): "I can talk to the people that support me if I am unhappy or not well." This is ticked "yes", but the comment made is: "Lay down and sleep more. Facial expression changes." Under the heading "Information" is a question: "I have information about GLH." The "yes" box is ticked and the comment is: "info in my file, like tenancy, rent etc." In relation to "I feel safe in my home" the comment made is: "tenants do not interact much but live happily side by side with me." It is in my view inconceivable that those comments could have come from Peter himself.

The comments are largely positive. The only negative comments on the form are the following: that Peter does not always feel that he can make decisions about his life, that he sometimes wishes that he had more choice about day time activities like a day centre, and that he wishes he could have more time 1:1 with the staff – "this is what I enjoy the most". Towards the end of the form there is a page headed "Notes" which is to be completed by the Housing Manager. Under "Actions" on that page two matters are mentioned. First, that Louise is to call Jenny about the garage door lock. Secondly, "big question around how bills are paid, these are not directly paid by tenants. Staff not happy with the way things are done. This would help staff understand things better. Send this to Anna Laycock." It is clear from an earlier answer that Anna Laycock is the social services key worker. On the next page is stated: "maintenance followed up with Louise", and on 1 March 2007 Emily Donovan signed the last page to indicate that "the above action/s have been carried out successfully."

There is a completed "quality service review" report relating to a visit by Rochelle Watson of GLH on 22 November 2007. This standard form contains detailed guidance notes, relating to each heading, as to the matters which should be considered. For example, in relation to "support provider" it states: "In this section you are required to undertake a view of general standards, administration and record keeping. The suggested method for finding evidence, observation, discussion, safety records" [and there then follow 8 bullet points, relating to such matters as "appropriate staffing levels to reflect the tenants' care assessments"]. The comments made about the support were as follows:

"3 staff members on shift at time of visit. This is usual/required, all 4 gentlemen have separate needs and would be difficult if only 2 or 3.

Annual and monthly reviews are carried out. No issues have been apparent in the last couple.

All staff didn't appear on edge with questions and were more than happy to help answer them. All staff are given full training on what is required within the household for all 4 tenants.

Communication and complaints log are in place and used by all."

Under the "executive summary" towards the beginning of the document it is stated: "all tenants happy", and the only recommendation made was: "To check with tenants re the TP meetings. As all levels of disabilities attend and all can be involved."

I find that the first formal visit which considered matters other than repairs and maintenance was that on 4 January 2007, more than 2 years after the grant of the tenancy. Even at that visit, the continued adequacy of the support provided by HFT and of the accommodation appears to have been considered only very cursorily.

Mr Dugher says in his witness statement [H 369] that "review meetings continue to take place regularly with HFT, and are an important way of ensuring that our tenants are still receiving the right care and continue to be happy in their home". There are references in the contacts list to "project meetings with HFT" after Peter moved to the Sheffield Property (e.g. on 1 September 2004, 6 October 2004, 9 March 2005). However, no evidence as to the content of any such meetings has been supplied by GLH, and I am therefore unable to find that they involved the giving of support to Peter.

(c) Evidence from HFT and Peter's parents

At H 386-7 is a statement by Matt Driver of HFT. I would refer in particular to the following passages:

"Since the start of the tenancies GLH have maintained ongoing relationships with all tenants. This includes undertaking regular reviews with tenants in their home and with HFT support staff to see if their tenants remain happy in their homes. There have been a number of occasions where GLH have undertaken specific work supporting tenants to understand their responsibilities where issues have arisen which could jeopardise their tenancies. GLH have approached this for example by providing support and advice on how best to address recurring difficulties with neighbours.

For all HFT staff GLH have always been approachable, we have key contacts for our services. Their staff team are knowledgeable of all aspects of supported living and are readily available to discuss, give advice and take action regarding issues relating to their tenants, the property and housing support."

At H 388 is a letter from Peter's parents. It includes the following passage:

"Peter has, as a result of his extensive disabilities, many special requirements and his accommodation and living environment are a major part of satisfying his needs. The extensive service provided by GLH towards this is clearly essential to satisfying Peter's requirements and greatly exceeds the arrangements for any normal housing situation. Peter has frequent contract reviews, and these have clearly shown how suitable the arrangements are for Peter's particular case."

The support actually provided to Peter: summary of my findings and conclusions

I summarise my findings in relation to the Sheffield Property as follows:

(1) GLH has no contractual or statutory obligation to provide any support to Peter.

(2) Sheffield City Council, as the local authority with statutory duties and powers to provide care and support, has commissioned HFT to provide care, supervision and support in accordance with Peter's needs, as assessed in detail by Sheffield City Council. This involves a 24 hour care and support package. Sheffield City Council have the power and duty to monitor changes in Peter's needs and to monitor HFT's performance.

(3) HFT is a charity and an established national provider of a wide range of services for people with learning disabilities. They provided care and support to Peter at Fairthorn and have at all material times provided and been regarded by GLH as providing an excellent support service at the Sheffield Property.

(4) GLH played the role in setting up the scheme for supported living at the Sheffield Property which is described in paragraphs 125-30 above. It included carrying out the minor works referred to in paragraph 129 above.

(5) Shortly after the commencement of the tenancy an employee of GLH spoke to a neighbour about a noisy barbecue (paragraph 141 above).

(6) After the commencement of the tenancy GLH also carried out the works referred to in paras. 142-3 above. (shower; secondary gas valve; water temperature control valves.).

(7) GLH did not visit the Sheffield Property with a view to purporting to monitor the continued adequacy of the support and accommodation until, at the earliest, January 2007 (nearly 2½ years after the commencement of the tenancy). Even at that visit matters other than repairs and maintenance appear to have been considered only very cursorily. More detailed reviews were purportedly carried out on 28 February 2007 and 22 November 2007.

(8) GLH has not satisfied me that there have been any telephone calls or other contact between HFT support staff at the Sheffield Property and GLH, relating to matters other than repairs, minor adaptations and housing benefit. Peter would not himself be capable of using the helpline.

(9) GLH have regularly assisted with housing benefit. But no evidence has been supplied by GLH that that assistance has concerned matters other than the issue arising in these proceedings.

(10) Peter has attended only one tenant participation forum. That was on 2 December 2005, when he attended with HFT staff, but he has chosen not to attend since.

(11) Mr Drabble asserts in his final submission that "GLH is in regular contact with HFT, as well as Peter's parents." However, I do not think that there is any evidence that GLH is in regular contact with Peter's parents. Indeed, I note that paragraph 8 of Mr Dugher's witness statement [H 373] says that "Peter's parents know the staff team at GLH from the planning meetings and would not hesitate to contact GLH with any queries" (my emphasis). Nor does the letter from Peter's parents (para. 164 above) refer to any contact between them and GLH after the commencement of the tenancy. I therefore find that there has been no regular contact with Peter's parents since the commencement of the tenancy.

(12) In the light of my above findings the witness statements of Mr Dugher were in my view materially misleading in important respects. That prepared for the purpose of the Tribunal hearing stated [S 175]: "Since the commencement of the scheme in August 2004 there have been regular visits to the scheme to see tenants. We have visited on over 13 occasions and undertaken reviews at least annually. Our scheme review is a comprehensive review with our tenant looking at their wellbeing to ensure they remain happy in their home and their support continues to be appropriate for them." My finding (7) above is flatly inconsistent with that. Para. 7 of Mr Dugher's witness statement prepared for the purpose of the hearing before me [H 372] spoke of "quality service reviews" and their ambit in the present tense, but gave the impression that reviews of that nature had been carried out regularly since the commencement of this scheme. Further, in referring to tenant participation forums Mr Dugher said (in para. 5 of his witness statement [H 372]) that "Peter and his fellow tenants have attended and taken part in these meetings", but without stating that Peter had attended only one such meeting. That was again materially misleading.

(13) In making the above findings I do not overlook the evidence of Mr Driver of HFT [H 386-7] or that of Peter's parents [H 388], referred to in paras. 163-4 above. However, that evidence is in terms which are simply too general to be of any real assistance. For example, Mr Driver's statement that GLH have given support and advice about addressing difficulties with neighbours implies that this has happened on several occasions. GLH have given evidence of only one such occasion, near the start of the tenancy. His statement that there have been "regular reviews with tenants in their home" does not say when a such a review first took place.

J. THE HOUNSLOW CASE (CH/779/2007)

Introduction

The Claimant (Jade) is a woman now aged 23. Until moving into the Hounslow Property she was living with her parents, who provided the necessary care and support, but by August 2005 wished to move out.

Alison Hand

Evidence was given on behalf of Jade in relation to the Hounslow Property by Alison Hand. She is a qualified social worker and has been working for GLH as a housing consultant for about 2 years. She has been responsible for the Hounslow property for 10 months [T 132].

Basic facts

On the basis of the documentary evidence and the evidence of Ms Hand (which I accept to the extent set out in the following findings) I find the following basic facts, which I think are uncontentious.

(a) The Hounslow Property

GLH have owned the Hounslow Property since March 2003. It is a 3 bedroomed house in Isleworth and provides accommodation for two young ladies, the third bedroom being occupied by an overnight carer. Prior to 2002 GLH worked closely with the social services department of the London Borough of Hounslow ("Hounslow") when asked about whether GLH could help find accommodation for two identified young women. All other avenues were fully explored and GLH's research showed that for adults with a learning disability who required specialised housing, it was not possible to secure appropriate housing. GLH liaised with John Calvert from the housing department at Hounslow in an attempt to secure housing through the local authority and local housing associations but was told that they would not house someone with "special needs". It was at that stage that GLH agreed to look at providing housing for the two ladies and so purchased the Hounslow Property after a long process of working with their support network and looking at what type of property would meet their needs.

(b) GLH's initial involvement with Jade

In 2005 one of the tenants of the Hounslow Property moved on and it was at that stage that Helen Taylor, a senior social worker from the Hounslow community team for people with learning disabilities (and the author of the community care assessment and plans referred to below) contacted GLH enquiring about providing accommodation for Jade. At that stage GLH worked closely with Owl Housing, the support provider, and arranged for Jade to visit the property and meet the other tenant. Alternative accommodation was again looked into but due to Jade's specific needs there was nothing available to meet her assessed needs. For around 2 months Jade was helped to carry out visits to the property and to meet with the other tenant until it was finally agreed that Jade would move in to the property in October 2005.

(c) Jade

Jade is able to communicate verbally. A community care re-assessment dated 24 August 2005 by Hounslow social services [H 247-256] stated that a placement (i.e. the Hounslow Property) had been located. That assessment described its purpose as being "to obtain a picture of her skills/abilities and current needs and support required to enable Jade to live independently."

The assessment described Jade's main physical problems as being that she had epilepsy involving partial seizures that are uncontrolled and unpredictable. They usually last for 2 minutes and she can usually tell when she is going to have a seizure and will find a quiet place to sit down. As regards her mental health the assessment recorded that she appeared to experience depression. Due to removal of a brain tumour Jade was said to have a poor memory and to need reminding of things such as attending appointments. It was stated that Jade required support and encouragement around personal care and independent living when she was depressed.

The assessment then went on to set out the activities of daily living and the support which Jade required. It was stated that she required some supervision whilst bathing (owing to the danger from epilepsy), and guidance and support with cooking, prompting and guidance with housework, advice on healthy eating and support with food shopping. A summary at the end of strengths and protective factors said that "Jade is very independent although requires a degree of support namely around budgeting, cooking and correspondence. Jade also needs support with medical appointments and her health should be monitored. If Jade is to move into a placement a daily record should be kept of her well being. Jade requires emotional support at times, particularly when out in the community (more so during the evening)."

In a section of the assessment labelled "Further action" it was stated: "Referral to Owl Housing and Golden Lane Housing."

(d) Health and care plans

A health and social care plan dated 10 October 2005 [H 257 onwards], also drawn up by Hounslow social services, summarised the "identified risks and needs from the assessment" and then listed "what will be done and who will do it" in relation to each such risk and need. In each case listed in that box was

"In Borough – Supported Living CC

Owl Housing Ass L.D. V.R.H."

In no case was GLH listed as an entity intended to provide support. One of the listed risks and needs was "Income and benefits: Jade requires some support with budgeting."

A revised health and social care plan dated 9 August 2006 [H 260] was in very similar terms to that dated 10 October 2005, save that it stated that Jade required personal care and assistance when bathing, and that a bath seat and plastic grab rail were to be obtained through OT (occupational therapy). Again, GLH was not listed as an entity intended to provide support.

Alison Hand stated in evidence [T 129] that Jade's care package is not a 24 hour care package, so that there are times of day when she is on her own. She further gave evidence [T 133] that Jade's support package was formerly 7 nights a week and has been reduced to 5 nights a week. That accords with the evidence of Owl Housing [H 391] that the support at the Hounslow Property "provided twenty four hour support with a planned reduction in support hours over time." A GLH quality review report dated 25 January 2008 (see para. 205 below) states that Jade's support was 24 hours, but "under review" and that there are 2 nights when staff do not sleep in.

(e) Grant of tenancy

The tenancy agreement was dated 12 October 2005 and is in GLH's standard form. It gave Jade a tenancy of her bedroom, together with shared use of a living room, kitchen and bathroom. It contained the standard provision that "the Landlord shall provide the services set out in the attached schedule for which the Tenant shall pay a service charge." The Schedule listed simply, under the heading "services to be provided to [the Hounslow Property]", "as far as practicable to provide general counselling and support." However, the "rent schedule breakdown" attached to the tenancy agreement showed no sum as payable in respect of "supporting people charges". It is common ground that the rent of £254.90 per week was comprised of £245.20 in respect of rent and £9.70 in respect of service charge (attributable to council tax) and that the rent did not include any payment in respect of support to be provided by GLH.

There is a document signed by Jade dated 12 October 2005 [H 45] in which she acknowledges having had a tenancy pack explained to her by Sarah Hiles, Housing and Development officer with GLH. The tenancy pack included a "tenancy guide." The letter to Jade from GLH enclosing the pack refers to tenant participation meetings, and further states: "You need to fill in a housing benefit application form so your rent will be paid. Please ask your support provider to help you." The enclosed "tenancy pack checklist" said: "A member from Golden Lane Housing/your support worker will go through this pack with you".

Alison Hand gave evidence [H 383], and I accept, that GLH's then housing and development officer for the South East Region (Sarah Hiles) talked through the tenancy agreement with Jade in order to help explain what it really meant to be a tenant and what her responsibilities would be. Sarah Hiles also ensured that Jade had an accessible pictorial tenancy agreement. She also discussed repairs, how to make a complaint, what support was provided to tenants and other tenancy related matters.

A bath seat and plastic grab rail were installed at around this time, but GLH did not fund this because there was money left in the disabled facilities grant [T 137-8].

(f) Housing benefit claim and decisions

An application for housing benefit was made on 12 October 2005, signed by Jade. Ms Hand's evidence is that Sarah Hiles filled in the form on Jade's behalf and submitted it.

On 8 July 2005 the rent officer had determined that the local reference rent in respect of the dwelling occupied by Jade pursuant to her tenancy was £150 per week. As I understand it, however, (see H 50), housing benefit was initially awarded to Jade in the full amount of the contractual rent of £254.90 per week. On 17 February 2006 GLH gave notice to Jade that the rent would increase to £258.04 per week with effect from 3 April 2006. As a result, Jade applied for an increase in the amount of housing benefit and a decision appears to have been made by Hounslow on 4 May 2006 which has been treated by both parties as being that housing benefit was limited to the amount of the local reference rent of £150 per week, on the ground that Jade's dwelling was not "exempt accommodation" within the meaning of para. 4(1) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006.

Jade, assisted by GLH, appealed against that decision. On 12 October 2006 an appeal tribunal allowed the appeal, finding that GLH provided "support" to Jade. By my interim decision made on 17 August 2007 I set aside the Tribunal's decision as wrong in law.

(g) Contractual documents relating to the provision of support

(i) Agreements between Hounslow and Owl Housing

At H 263 is a document dated 17 October 2005 and headed:

"London Borough of Hounslow

Social Services Department

Non-residential care request Form (Contract)"

It is asserted in a submission on behalf of Hounslow [H 240] that the writer understands from social services that this care request form is the contract for the provision of care and payment thereof resulting from the community care assessment and plan in respect of Jade, and that the parties to the contract are the London Borough of Hounslow (social services) and Owl Housing ("Owl"). Owl is stated in the document to be the "Agency". At the foot of the second page of the document it is stated that "this request form is the contract for the supply of the services detailed above." The total weekly cost of the care and support to be provided by Owl is said in the document to be £1160.37 per week, less £318.36 to be met from the Supporting People budget, leaving a cost to be paid by social services under the contract of £842.01 per week. However, the boxes for "details of support service requested", which were intended to state the days of the week and times during each day of the week when support services would be provided, were not filled in. There was no provision for sums to be paid in respect of any support to be provided by GLH. I would assume that there must be some separate contract between Hounslow, as Supporting People administering authority, and Owl in respect of the support stated in the above document to be paid for out of the Supporting People budget, but no such document has been produced by Hounslow. The letter from Helen Taylor (Jade's former social worker) dated 18 January 2008 [H 389) confirms that the supporting people budget funds considerable housing related support for Jade. She refers to "the Supporting People contract." As I have said, however, no such contract is in the papers. It seems extraordinary that there is not some more detailed document regulating the contractual position between Hounslow and Owl.

(ii) Agreement between Hounslow and GLH

Commencing at p.85 in the Hounslow Bundle is a document described on the first page as follows:

"London Borough of [Hounslow]

Social Services Department

In partnership with

Golden Lane Housing

Nomination Agreement relating to properties providing supported accommodation for people with learning disabilities"

The Agreement is dated 8 October 2002 and the parties are Hounslow and GLH. It recites that the "service provider" (i.e. GLH) provides accommodation for persons for whom Hounslow in its capacity as authority for the provision of social services and for commissioning such services is wholly or in part responsible. Clause 1 states that the "form of service to be supplied" is "provision of supported accommodation for people with learning disabilities." Hounslow is described and defined as "the Service Commissioner". The blank for the address of the property defined in the Agreement as "the property" is not filled in, but the property is defined as including "any other properties subsequently added to this Agreement" and as I understand it the Hounslow Property has been treated as being subject to this Agreement.

By Clause 4.1 GLH undertakes "the provision of Housing at The Property" and by Clause 6.2 agrees to "undertake the provision of the housing management service including those items detailed in Schedule 2 ...." There are provisions entitling Hounslow to nominate tenants to vacancies, and for Hounslow to bear some of the risk of voids, and other financial provisions. Schedule 2 lists 15 categories of "Housing Management Services". Items 1 to 7 are clearly no more than ordinary housing management services. Items 8 to 15 are as follows:

"8. Tenant consultation, information and participation related to housing matters only

9. Dealing with tenant disputes

10. Giving advice on claiming housing benefits

11* Giving advice relating to "move on"

12* Contacting relatives or care services directly when there seems to be cause for concern.

13* Giving advice on dealing with the police and courts where this relates to housing matters where the Housing Provider is not a party to the proceedings.

14* Advice to tenants on aids and adaptations.

15. Administrative overheads directly related to housing management."

It is stated below that list that the asterisk "denotes that this advice will be provided jointly by the Service Provider and the provider of care or support or otherwise via the Service Commissioner."

By Clause 7.4 Hounslow agrees to "arrange the provision of the welfare services listed in Schedule 6"

Schedule 6 to the document is as follows:

"The provider of care support and welfare services will meet all of the needs as detailed in other agreements and as referred to in the tenant's own Community Care Assessment and Care Plan Agreement. The provision of care support and welfare will attempt to maximise each tenant's independence in all aspects of their life.

The form of care provider/care provisions will be determined through either:

(a) Social Services will contract with a care provider directly; or

(b) Tenants will make their own arrangements under direct payments with Social Services taking responsibility for monitoring these arrangements."

No reliance has been placed by Mr Drabble on this document as in fact requiring GLH to provide the housing related support set out in Schedule 2. I suspect that Schedule 2 was appropriate in 2002, when housing related support was payable via transitional housing benefit, but that it ceased to be so with effect from the expiry of transitional housing benefit from April 2003. I suspect that such of the items in Schedule 2 as extend beyond ordinary housing management were simply treated as inapplicable after April 2003. As Mr Drabble has in his written submissions placed no reliance on this Agreement I need not consider it further. Mr Drabble submits that I should look simply at what support GLH in practice provides and makes available.

(iii) Agreement between GLH and Owl Housing

Commencing at p.75 in the Bundle is a "service level agreement" dated 4 April 2005 relating to the Hounslow Property and made between GLH and Owl. Clause 3 states that "GLH appoints [Owl] to provide the services for the Term in return for the payments." The "services" and the "payments" are defined as those listed in Schedule 1. There the "services" are stated to be "general counselling and support" and the rate to be paid is stated as "£0.00".

It is difficult to understand what the purpose or effect of this document can have been. It has not been relied upon by Mr Drabble as having the effect that some of the support provided to Jade by Owl is in fact provided on behalf of GLH (rather than on behalf of Hounslow) and I therefore do not need to consider it further. It can in my judgment simply be ignored. The explanation may well be that given in evidence by Alison Hand [T 140], namely that prior to April 2003 a document of this nature would have had some purpose because GLH would have paid to Owl some of the payments which it received by way of transitional housing benefit. That does not of course explain why such a document was signed in 2005.

The support actually provided by GLH to Jade: GLH's evidence

(a) General

I accept Ms Hand's evidence [T 130] that because the occupants of the Hounslow Property are not as disabled as is often the case with GLH tenants, the Hounslow Property tends to be regarded by the occupants as something of stepping stone, with people coming and then moving on. Ms Hand stated [T 135] that the other tenant of the Hounslow Property (Kim) had recently moved into local authority accommodation, but still has special needs and therefore continues to have support from Owl. GLH were aware of and talked to Owl about Kim's plans to move [T 145].

A list of recorded contacts, during the period 2 April 2001 and 8 April 2008, between GLH staff (on the one hand) and either the tenants or the Owl support staff (on the other) was produced by GLH during the hearing, and Ms Hand was asked questions about it. The list was drawn up for the purpose of these proceedings from information located in a number of sources at GLH. There are approximately 43 recorded contacts since Jade moved in to the Hounslow Property.

Ms Hand's evidence was (and I accept it) that the list is not exhaustive; there would, for example, have been calls from Jade or the Owl support staff to the mobiles of GLH staff dealing with the Hounslow Property, of which there would be no record at GLH.

Most of the contact is with the support staff rather than with Jade herself. The overwhelming majority of the contact relates to repair and maintenance items which are GLH' s responsibility under the tenancy agreement. A number of the entries relate to housing benefit; however the entries after 12 October 2005 (the day when the tenancy agreement was signed) relating to housing benefit all appear to relate to the restriction of housing benefit which is at issue in these proceedings.

On 7 November 2007 there is an entry recording that GLH had been asked by the support staff to get a quote for a new integrated oven. There is a further entry relating to that on 15 January 2008. Ms Hand gave evidence that Jade had purchased a new oven through the GLH helpline [T 146]. Ms Hand's evidence was that GLH would assist with adaptations or other works going beyond their liability to repair in as much as GLH would arrange for the work to be carried out but would not fund it [T 146; 158]. She said that this was a service which Hounslow social services valued. [T 146], and gave the purchase of the oven, through the helpline, as an example.

Miss Hand stated in her witness statement that GLH works with one contractor in the South of the country, Quadron Construction. Staff at Quadron have taken part in a training course put together by Nicky Thompson, tenant participation officer at GLH, which explains what it means to have a learning disability. This is done so that tenants and care staff can feel safe in their home knowing that only one company will come to undertake repairs.

(b) Visits

The only entries which appear to relate to visits to the Hounslow Property by GLH staff are as follows. On 17 November 2004 there is an entry described as "monitoring visit" by Sarah Hiles. No minutes or record of that meeting were produced in evidence by GLH. There is a record of the tenancy agreement being signed on a visit to the property by Sarah Hiles on 12 October 2005.

There is an entry relating to an annual visit by Nicki Rhodes on 25 January 2007. A copy of the "Annual Scheme Review Form" of that meeting was produced. It records as follows: "both tenants were happy with the house and the support that they were receiving. Both tenants enjoy going out and away on holidays. The property was very clean and the tenants were happy with the new decs."

There is an entry relating to an "annual visit" on 10 December 2007, where Jade and the former tenant Kim and care staff were met at the property by Brian Shortall of GLH. There is a "quality review report" dated 25 January 2008 which appears to relate to that visit. This is a document extending to some 11 pages which requires the person conducting the "quality review" to answer a large number of questions, and to allocate in relation to each topic a rating of green ("the scheme is managing well with no issues"), amber ("minor issues have been identified; a plan agreed and is being monitored") or red ("major issues have been identified; a plan is agreed and is being monitored").

Of particular potential relevance to my decision are the following comments in the boxes. In a box headed "key issues arising from the Annual Review (important things you want to say about the scheme)" is written: "This is a very good scheme for the residents with a good provider. Unfortunately it is under threat to survive financially due to the restriction in benefit and the impact of the original Turnbull judgment. Hopefully this situation will be resolved in May. If not the Local Authority will need to financially support the scheme." On a page relating to "tenant well being" there is a guidance note on the standard form as follows: "please list what you actually found to determine our tenants' wellbeing. This includes if they are treated respectfully and offered choice and supported to make informed choices. Refer to Visit guidance notes for further examples." The answer on that page is "Interview with [Jade] on the day of the visit, contact with care staff." On a page relating to the "support provider" the Guidance Note is: "please list what you actually found to determine the effectiveness of the support provider and administration undertaken." The comment made by Mr Shortall is: "Relationship with the support provider – Owl, has always been very good. See the "supportive statement" supplied by Owl to the Social Service Commissioners. They welcome partnership and see GLH as an integral part of the support package."

Ms Hand states in her witness statement that at that meeting "there followed a discussion with Jade where she expressed her concern over the ongoing void at the property …… but also, in the long term, her wish to set up home independently, and how GLH could help her achieve this. Various avenues were approached, independent living, shared ownership, living with a partner etc. GLH would expect to be fully involved in any tenant's progression or "move-on" from one of our properties and also hope to be able to re-home them in a suitable GLH property if possible." None of that is recorded in the "quality review report". However, that discrepancy was not put to Ms Hand in cross-examination, and I therefore find that such a discussion did take place, either at that visit or at the subsequent visits on 8 and 11 April 2008.

Ms Hand stated in evidence [T 130] that when Jade missed a tenant participation meeting in March or early April 2008 GLH's tenant participation officer, Nicky Thompson visited her and Jade raised a question about the possibility of her boyfriend moving into the property and so there were some things that had to be worked through about how the tenancy agreement worked. (The contacts list referred to above confirms that there was a visit by Nicky Thompson on 8 April 2008). As a result Ms Hand went to see her on 11 April. Jade said that she would like her boyfriend to move into the property and to have a family and for it to become her family home. Ms Hand explained to Jade that she would not be permitted to remain in the property with a baby. Jade further mentioned that she had contacted social services and didn't have a social worker, her previous social worker (Helen Taylor) having left. Ms Hand contacted the duty desk for social services , and was eventually called back on 8 May (the first day of the hearing before me) by Jade's new social worker who had very recently been allocated. I accept that evidence. There is an entry relating to this for 8 April 2008 on the list of contacts. The entry concludes: "This was a positive experience for Jade and she told GLH about her plans for the future. She explained that she would like her boyfriend to move into [the Hounslow Property], have children and for it to become a family home."

Ms Hand further stated [T 133], when asked about GLH's role in working towards Jade moving on, that, looking at other examples, the sort of things which GLH might do would be to be in touch with the housing department again and look at other schemes in the area where the tenant might be referred to (e.g. shared ownership schemes). She said that this would probably be a joint role with the care provider. I also accept that evidence.

Ms Hand said [T 133] "we have a very good relationship with Owl, you know they do an excellent care role with Jade."

Ms Hand stated in her witness statement: "Since Jade became a tenant of GLH we have visited her on many occasions in her home to ensure she is still happy and settled and that the care she receives is still suited to her needs." However, the only visits on the recorded contacts list which it would seem might have included that as a purpose were those on 25 January, 10 December 2007 and 8 and 11 April 2008, referred to above.

Ms Hand was asked by Mr Drabble in re-examination whether she regarded GLH as providing support to Jade, and answered "yes". When asked to spell out what the support consisted of she said [T 159]:

"…. she is able to make contact with us directly in a number of ways on the telephone, she attends the tenant participation meetings, we visited her at the property, we're aware of significant life changing issues for her such as who she's going to live with, who's going to be sharing with her now, recent involvement over plans for her relationship, to have a family, I think we've been a key part of those people in talking some of these things through with Jade because she needs to hear the same message from a number of people…."

(iii) Evidence of Helen Taylor and Owl Housing

A letter from Helen Taylor (Jade's former social worker) dated 18 January 2008 [H 389] includes the following passages:

"The combination of 2 organisations, namely, Golden Lane and Owl Housing, which both have considerable expertise in enabling people with learning disabilities to lead independent lives, has proved to be very successful, not just for [Jade], but also for previous tenants who have subsequently moved into their own self-contained accommodation via a housing application to the local authority.

The different roles of each agency was clearly defined at the start of this commissioning process. GLH provide accommodation to [Jade] at [the Hounslow Property] and support her to manage all her tenancy issues, which include supporting her with applying for housing benefit, dealing with maintenance and repairs, providing instructions on how to use equipment in the flat (e.g. a boiler) and any issues relating to her neighbours. .........

To summarise, the continuity of [Jade's] current housing and support is vital to enable her to increase her confidence, and to help her to move into her own accommodation in the near future."

A statement from a Mr Stevens of Owl dated 10 January 2008 [H 391-2] includes the following passages:

"Whilst GLH liaises and fully informs Owl Housing support staff of any tenancy relationship issues their interaction with the tenants is appropriately thorough and direct when dealing with such issues as housing benefit claims, repairs, customer satisfaction surveys, and tenant involvement. As an organisation that deals with numerous social housing landlords Owl Housing has found GLH's approach, continued involvement and contribution to the success of our tenants' placements to be unique and invaluable.

The support and living environment currently provided to Jade at [the Hounslow Property] by both her Owl Housing support team and GLH is of paramount importance if her positive development is to continue towards her goal of a home of her own with reduced support in future."

The support actually provided by GLH to Jade: summary of my findings and conclusions

My findings and conclusions in relation to the issue what support has actually been provided by GLH to Jade are as follows:

(1) GLH has no contractual or statutory obligation to provide any support to Jade.

(2) The London Borough of Hounslow, as the local authority with statutory powers and obligations to provide support, has commissioned Owl Housing to provide support meeting Jade's assessed needs. This is not a 24 hour care package, so that there are times of the day when she is on her own. Overnight support has recently been reduced from 7 to 5 nights a week.

(3) Hounslow was, at around the dates material to this decision, carrying out its obligation to monitor Jade's needs and the adequacy of the support provided to her, as evidenced by the revised health and social care plan dated 9 August 2006 (paragraph 177 above).

(4) Owl Housing are and have been regarded by GLH as good support providers.

(5) GLH did not purport to monitor the continued adequacy of the support provided by Owl Housing to Jade and of the accommodation until the visit by Nicki Rhodes on 25 January 2007. At that visit the continued adequacy of the support and housing were considered only cursorily (as evidenced by the report of that visit – paragraph 204 above). I do not accept the evidence of Ms Hand [para. 211 above] that since Jade became a tenant GLH has visited her on many occasions in order to ensure that she is still happy and that the care which she receives is still suited to her needs. I find that the only visits which have taken place, since the grant of Jade's tenancy, are those on 25 January 2007, 10 December 2007, 8 April 2008 and 11 April 2008 (referred to in paragraphs 204, 205, and 208 above). I consider that if there had been other visits, they would have been referred to on the "Contacts" list.

(6) At the visit on 10 December 2007, which led to the completion of the "quality review report", the continued adequacy of the support regime was considered in substantially more detail than had previously been the case.

(7) GLH provided the assistance to Jade in connection with her initial move to the property described in the witness statement of Ms Hand (paragraphs 180-1 above).

(8) The assistance which GLH has given in connection with housing benefit since the commencement of the tenancy has related mainly, and probably exclusively, to the problems caused by the decision of the Council now under appeal to me.

(9) Although Ms Hand gave evidence in her witness statement that the tenants of the Sheffield Property have used the helpline many times for assistance from GLH, I find that the only such call which may have involved the giving of support (i.e. to have gone beyond ordinary housing management) was the assistance with the purchase of the oven (paragraph 201 above). That appears to have been a call from Owl staff, rather than from Jade herself. GLH may not have been bound, under the tenancy agreement, to provide a new integrated oven, and hence the assistance with the oven may well have gone beyond ordinary housing management. I find that there were no other calls to the helpline (whether from Jade or the Owl support staff) relating to matters going beyond housing management because, if there had been, a record would have been kept.

(10) Although I accept Ms Hand's evidence (para. 199 above) that there will have been telephone calls between (i) Jade or the care staff and (ii) GLH staff on their mobiles, which will not have become recorded on the contacts list, there is no satisfactory evidence that such calls involved support, as opposed to ordinary housing management issues.

(11) The discussion which I have found took place at the visit on 10 December 2007, relating to a possible move to other housing (paragraph 207 above), does appear to have involved the giving of some support.

(12) I accept Ms Hand's evidence (paragraph 208 above) as to what occurred at the visits on 8 and 11 April 2008. However, the discussion as to whether Ms Hand's boyfriend would be permitted to move in and whether the property could become her family home would not appear to have involved anything more than ordinary housing management. It would of course be necessary for GLH, as landlord, to consent to any such arrangement. I accept that some support was given when Ms Hand contacted the new social worker, but it was minimal: the new social worker would no doubt have contacted Jade in any event, and there would in any event appear to be no reason why Owl staff could not have done so.

(13) Jade has attended 5 tenant participation forums [T 132]..

(14) I take into account Ms Hand's answer to Mr Drabble (paragraph 212 above) that she thinks that GLH is providing support. However, that is the issue which I have to decide. Ms Hand's summary of what that support consisted of seems to me to take the matter no further: I have dealt in my above findings with the conversations between GLH and Jade about which there is evidence. Ms Hand's statement, in that answer to Mr Drabble, that Jade "needs to hear the same message from a number of people" may well indicate that some of the conversations with GLH have been an unnecessary duplication of what Jade's social worker and/or her support staff have been telling her.

(15) In making the above findings I do not overlook the evidence from Helen Taylor and Owl Housing (paragraphs 213-4 above). However, that evidence is in my judgment simply too unspecific to be of any real assistance on the question what support is provided by GLH.

K GLH'S EVIDENCE AS TO SUPPORT PROVIDED IN RESPECT OF OTHER ACCOMMODATION: THE LISTS OF EXAMPLES.

Appendix 3 to Mr Parkinson's witness statement [H 408 onwards] is a list of examples, extending to some 13 pages, of what is said to have been support provided by GLH in other schemes, grouped under (broadly) the categories of support referred to in Section D (paragraph 30) above. On 1 May 2008 (i.e. a week before the hearing) the claimants' solicitors provided to the other parties and to me an 86 page document setting out some 300 further examples of what are said to be support provided by GLH in relation to other schemes. Mr Parkinson gave evidence, in chief, about some of the examples in the "Additional Examples" document, and one of the examples in Appendix 3 to his witness statement, of which he professed some personal knowledge.

Miss Perez submitted at the outset of the hearing that if I considered, when coming to my decision, that any of the examples in the "Additional Examples" document were material, her clients (Sheffield CC) should (in view of the very late production of that document by GLH) be given the opportunity to contact the care providers to see whether they agreed that there had been a failure in care provision, as alleged in some of the examples. Mr Bhose submitted at the outset that none of the examples (whether in the Appendix to the witness statement or in the "Additional Examples" document) carried any evidential weight, given (in particular) that none of the underlying documentation had been produced and that the examples were, as he described them, "self-serving".

I do not think that any of the examples, save some of those to which GLH's witnesses were able to speak from their own knowledge (which I deal with further below), have any evidential value. My reasons for that are as follows. First, most of them are set out very briefly, and there is simply insufficient detail to assess exactly what part GLH played and what its significance was. It is impossible to judge whether GLH was really providing "support" to more than a minimal extent. Secondly, GLH did not produce any of the documents on which the summaries in the lists were presumably based. Thirdly, I have found that reference to documentation which was produced at the hearing in relation to the Oxford and Sheffield cases has shown the evidence of Mr McGoogan and Mr Dugher to be materially inaccurate in the respects which I have set out above. In paragraph 228 below I also find the evidence of Mr Parkinson to be misleading in relation to the important issue of the nature of the annual reviews. I am therefore not satisfied, on a balance of probability, that the examples accurately represent, so far as they go, the significance of the role said to have been played by GLH.

Mr Drabble submitted to me in opening that GLH was not seeking to prove on the balance of probability the facts set out in any particular one of the examples, but rather the nature of GLH as an organisation. He submitted that the very large number of the examples, whatever the precise detail of them, demonstrated that GLH is an organisation that does from time to time intervene in a way that matters crucially to its tenants. I do not think that that approach really works. It seems to me that if no one of the examples, taken individually, enables me to find that GLH intervened, in that particular scheme, in a manner amounting to the provision of support, the position is not improved by the fact that there are a very large number of such examples.

As regards the examples of which Mr Parkinson professed personal knowledge, and gave oral evidence about, I comment as follows.

As regards numbers 0263 (p.61 of the Additional Examples) and 0847 (p.30 of the Additional Examples) it emerged in cross-examination that Mr. Parkinson had no personal knowledge of them. Further, in neither of those cases is there sufficient detail properly to assess the part played by GHL and whether it really amounted to the giving of support. It is said in those examples that there was a re-assessment by social services of the tenant's needs, and that the support provider also played a part in that happening. It is impossible, without much more detail, and without examining such documentation as may be available, to assess the real significance of what GLH did.

As regards no.0181 (p.18 of the Additional Examples) Mr Parkinson elaborated on this in evidence [T 14]. The tenant was seen lying on the floor and being fed his lunch in that position during a tenant participation forum. According to Mr. Parkinson that led to a "series of interventions, both directly with the care provider and directly with the commissioners [i.e. social services]" Mr Parkinson said that he believed that, through those interventions, the situation and the way that the tenant received his care had improved greatly. Again, however, in the absence of further detail as to exactly what GLH did, and notes of relevant meetings etc., it is in my judgment impossible to assess the significance of the part played by GLH, as compared with that played by the support provider and social services.

As regards no.0292 (p.23 of the Additional Examples), the facts set out do appear to evidence the giving of support by GLH to those particular tenants, who are able to ring the helpline and who are clearly substantially less disabled than the tenants in the Oxford and Sheffield cases before me.

As regards no. 0848 (p.39 of the Additional Examples), I accept that it would appear that GLH has developed a relationship with this particular tenant (who, again, is capable of using the helpline and is substantially less disabled than the tenants in the Oxford and Sheffield cases before me) which involves GLH giving emotional and practical support and advice of a type which one would expect to be available from a support provider. However, no details have been given as to the extent of support available from support providers, and why the tenant could not obtain the same support from her support provider.

Mr Parkinson also spoke [T 17 onwards] to the example at [H 408] in Appendix 3 to his witness statement, relating to a scheme in Basingstoke. GLH became aware through a family member of what it saw as poor performance by the care provider. GLH raised that with the care provider, which eventually resulted in the care provider giving 7 days' notice that they would be withdrawing care. Mencap were commissioned by social services to take over as care provider. It is stated in the example that "there is a history of poor care management by local services", and Mr Parkinson confirmed in evidence [T 35] that the social services authority was not as good as it should be.

L CONCLUSIONS AS REGARDS THE CATEGORIES OF SUPPORT SAID BY GLH TO HAVE BEEN PROVIDED

In his written submissions on behalf of the claimants Mr Drabble itemised the support said to have been provided by GLH by reference to the categories of support set out in the claimants' appeal letters (see paragraph 30 above). I shall adopt the same format.

(1) Liaising with the support provider and the social services/support commissioners and other professionals to ensure that support and housing remains appropriate to the needs of the tenant.

It is part of the claimants'case that GLH regularly (i.e. at least once a year) visits its schemes, partly for the purpose of checking that the support and housing remains appropriate to the needs of the tenants. However, I have found that in relation to these three schemes GLH did not visit the properties with a view to monitoring the adequacy of the support until January 2007. I have found that previous visits had been concerned solely with repair and maintenance issues. I have found that even at the visits in January 2007 the adequacy of the support regime was considered only cursorily. I further find, on the basis of the evidence in theses three cases, that it did not become GLH's practice to visit properties with a view to considering the continued adequacy of the support and the accommodation until about January 2007. I have noted, in my consideration of the Oxford and Sheffield cases, the "Supported Living My Home" booklet, which would appear to have been existence since at least December 2005. However, only one example of such a document actually having been completed has been produced, namely that completed in relation to the Sheffield case on 28 February 2007. I do not regard the existence of the booklet as evidencing that it was GLH's practice, before that date, to carry out a detailed review of the support arrangements.

I further find, on the basis of the detailed evidence in the three cases before me, that at some time after January 2007 the decision was taken by GLH to change the name of the formal visits to "quality service review", and to purport to conduct a much more thorough review of the adequacy of the support arrangements and of the accommodation. I do not accept the evidence of Mr Parkinson that there was no change in the nature of the reviews carried out. In particular, I do not accept that it was from the outset GLH's practice, in relation to these schemes, routinely to review the adequacy of the support and accommodation in the sort of detail evidenced by the review reports dated 8 August 2007 (relating to Oxford), 22 November 2007 (Sheffield) and 10 December 2007 (Hounslow). In my judgment Mr. Parkinson's evidence (see paragraph 6.1 of his witness statement, set out in Section F above) was materially misleading in this respect. The change, at some time after January 2007, in the nature and intensity of the reviews carried out cannot in my judgment be explained as simply an improvement by GLH in its record keeping. If in 2005/6 it had been GLH's practice to purport to monitor the adequacy of the support and the accommodation in the sort of detail now recorded in (for example), the record of the visit on 8 August 2007 in the Oxford case, a record of the results of such monitoring would surely have been made and kept. There would surely have been no point in conducting such a review if no record were kept. Indeed, it may be that, in relation to these schemes, GLH has deliberately extended the scope of its formal reviews in order to attempt to improve its position in relation to housing benefit. I make no finding one way or the other about that, because I do not think that I need to.

I therefore find that, as at the dates which are material in these three cases, GLH did not purport to provide, at any rate in relation to these three schemes, a service of regularly monitoring the continued adequacy of the support and accommodation.

It would no doubt be argued by GLH that, even if my above findings are taken as given, the examples of support in the Appendix to Mr Parkinson's witness statement, and in the "Additional Examples" document, show that if GLH did become aware (e.g. from relatives, or at a tenant participation forum, or at a visit) that something was or might be going badly wrong with the care and support provided by the support provider, it would intervene and attempt to get the position rectified. I accept, on the basis of (in particular) the Basingstoke example (paragraph 225 above), that there are circumstances in which GLH intervenes if it becomes aware of what appears to be a serious failing in the care and support regime. However, I do not think that the willingness and ability so to intervene in what must be exceptional cases falls within the words "provides ….. support" in the definition of "exempt accommodation". I have said above (paragraph 21) that in my view those words are in some circumstances capable of covering a service (e.g. a telephone advice service) that is made available to a claimant (or a support provider), even if no advantage is taken of it in the period under consideration. However, in my judgment the words "provides support" at least require that the available service is one which can and realistically may well be called upon at any time. I do not think that they cover the case where intervention will only be required in the fairly unlikely event of the support which is intended to be provided by some other body being or becoming inadequate. If (contrary to my view) they do cover that situation, they in my view that element of the support provided by GLH was, in the case of the present schemes, where there has been no real criticism of the support providers or the local authorities, of minimal benefit. Mr Parkinson accepted in evidence that the local authority involved in the Basingstoke example was not as good as it could be.

I further accept that there may be cases (such as that in Additional Example nos. 0848 and 0292) where GLH develops a particularly close relationship with the tenant or their relatives, and where those persons for some reason look to GLH for everyday support which one would expect to be provided by a support provider. However, again, the possibility of GLH providing that sort of support does not seem to me to be of more than minimal benefit to tenants (such as those in the present cases) who and whose families do not look to GLH for support in that way.

I am conscious that my finding that in none of these three cases did GLH at the material times monitor in detail the continued adequacy of the accommodation and support may be unsatisfactory to all parties in the sense that my decision would not answer the question whether GLH, having (as I have found) changed its practice, is now providing support in these cases. Even if I had found that at the material dates it was GLH's practice, in relation to these schemes, regularly to monitor the continued adequacy of the support and the accommodation in the sort of detail evident in the report of 8 August 2007 in the Oxford case, with a view to attempting to secure improvements if necessary, I would have held that that does not fall within the words "provides the claimant with care, support or supervision." In my judgment the word "support" connotes the giving of advice and assistance to the claimant in coping with the practicalities of everyday life. I do not think that it extends to scrutinising the arrangements for the provision by some other body of care, support and supervision, with a view to remedying defects perceived by GHL, or to recommending improvements. Taking again the example of the report of 8 August 2007 in the Oxford case, the author of that document stated that the purpose of the review was "to look at the property and Errol and [Michael's] lives and see how much [the Oxford Property] is fitting the bill in enabling them to fully experience Supported Living." I do not think that there is a sufficient element, in that activity, of assisting Michael and Errol to cope with the practicalities of every day life to amount to "support", as that word is used in the definition of "exempt accommodation".

If, contrary to my view, the monitoring of the continued adequacy of the accommodation and of the support to be provided by others does amount to the provision of "support", in my judgment it is of minimal benefit to the claimants in the present cases, for the following reasons. First, the power and duty to monitor the continued adequacy of the support and of the accommodation lies in the local authority, as the commissioning body. Secondly, there has been no reason to suspect that the local authorities in these cases have not been exercising their powers perfectly competently. Thirdly, there has been no criticism of the care providers in these cases (other than that raised very recently in the Oxford case). In my judgment any such monitoring of the continued adequacy of the accommodation and support would at the material times have been (and is now) in effect an unnecessary duplication of what others are in any event bound to do. It is in my judgment further of significance that GLH staff do not in general have qualifications and training which equip them to assess the needs of people with learning disabilities living in supported accommodation. That is accepted by GLH in the documentation relating to insurance which was handed to me towards the conclusion of the hearing on 9 May. It includes a very detailed assessment of the risks arising from GLH's then operations. In a section dealing with action to be taken by GLH within 3 months of implementation of the recommendations in the report it is stated, under the heading "commissioning and monitoring", that GLH should "make reasonable enquiries expected of a concerned landlord and not an expert in care provision or assessment."

In reaching the above conclusions I do not overlook a number of points emphasised by Mr. Parkinson in his evidence and relied upon by Mr Drabble in his written submissions. First, that the precise needs of a tenant in supported accommodation may only really become apparent after he has moved to that accommodation, and that those needs may in any event change over a period of time. Secondly, that there may be a change of care provider – Mr. Parkinson's evidence is that it has recently become more common for commissioning authorities to re-tender the care package in order to ensure best value, and that if there is a change in care provider GLH provides an important role in ensuring continuity. Thirdly, it is said that it is a mistake to assume that all the needs of a tenant have been logically and fully assessed by the local authority, with a resulting care package tailored to meet all needs. There appear to have been no care plans in the Oxford case.

However, I do not think that those factors would have led me to conclude (even if I had accepted that it was GLH's practice, at the dates relevant to these appeals, regularly to monitor the continued suitability of the support and accommodation) that the willingness and ability of GLH to intervene in the event of there being room for improvement in the support arrangements is of more than minimal value in these three cases, where there has been no criticism of either the local authority or the support providers, and no suggestion that the tenants' needs may change or that there will be a change of support provider.

Mr Drabble asked Mr Parkinson to explain, in the light of the fact that it is the local authorities' job to reassess changes in the care and support needed by a tenant, what GLH "brings to the party" in this respect. Mr Parkinson replied [T 11] that "the duty to reassess the need does sit with social services and what we are bringing is our knowledge of the tenant. We've seen the tenant both within their environment, their home, and we've actually seen them interacting with other people, other tenants, other organisations through the tenant networks. So actually we manage to build up a picture of our view of that tenant's needs." However, it seems to me that in most cases GLH will see relatively little of a tenant once a tenancy is granted. Most tenants do not attend participation forums. A GLH employee conducting a monitoring visit will (at any rate if the tenant is as disabled as the claimants in the Oxford and Sheffield cases) have to obtain most of the information from the support provider, or possibly from parents or other relatives. That was, indeed, apparent from Mr McGoogan's answers to Mr Bhose as to how a review would be conducted [T 69]. The GLH personnel will not in fact see how the tenant lives from day to day. The support provider will have a far better knowledge of that than GLH does, and a social worker visiting on behalf of a local authority should surely have at least as good a knowledge.

Towards the conclusion of the hearing on 9 May 2008 I was handed a copy of GLH's indemnity insurance policy, together with a very lengthy risk analysis carried out by the GLH senior management team. The risk analysis was sent by GLH to its brokers on 11 January 2007. The insurance policy is dated 9 May 2007 and has effect from 30 April 2007. The risk analysis set out what activities GLH carries out and intends, under an implementation plan, to carry out. The significance of all this was said to be that GLH is insured against liability for loss arising in the course of providing support (and not simply in the course of providing housing). However I do not consider that to be of any assistance in relation to the issues before me, because I am concerned with the position at significantly earlier dates, and because there is detailed evidence before me as to what GLH has actually done and made available in relation to these schemes. The fact that GLH has chosen to insure itself against particular risks does not really assist.

(2) Encouraging the tenants to attend participation meetings

The availability of such meetings is clearly of no more than minimal benefit in relation to the Oxford case (where Michael and Errol have never attended such a meeting) and the Sheffield case (where Peter attended only once). It is true that the existence of the meetings is a facility which is available to those tenants, but that fact in practice provides no benefit to them. In the Hounslow case Jade has attended, and may well continue to do so. Mr Parkinson's evidence [H 367] is that "organising tenant forums is a general landlord function, however the expertise needed to organise these meetings for tenants with learning difficulties sets GLH apart from other landlords." I would accept that the work involved in planning and holding such meetings may well go somewhat beyond what a landlord would normally provide in the exercise of its housing management functions. However, I do not think that the possibility of attending such meetings can provide "support" to more than a minimal extent, even in the Hounslow case.

Mr Drabble makes the point in his closing submission, as Mr. Parkinson did in his evidence in chief [T 14 onwards] that a tenant's attendance (or non-attendance) at such meetings may provide the opportunity for problems to be identified. This is clearly not so in the Oxford and Sheffield cases, where the tenants' non-attendance is of no significance as regards their support needs. I do not think that this factor can render the holding of the meetings (or encouraging the tenants to attend) to amount to more than minimal support. The mere fact of Jade not having attended at the recent meeting, although it may have resulted in the tenant participation officer visiting her, does not appear to have been indicative of any failure in the support regime.

(3) Giving advice on dealing with police and the courts

There has been no situation where such support has been necessary in relation to these schemes. In Additional Example 0191 (p.19 of the Additional Examples), about which Mr Dugher had personal knowledge and gave oral evidence, GLH liaised with the police and the care provider in relation to a fence which had been set on fire. However, it was clearly in GLH's interest, as landlord, that the fence should not be repeatedly burnt. I would not regard that example, which is only very briefly described in the Additional Examples document, as extending much, if at all, beyond GLH's ordinary property management functions. Nevertheless, I would accept that GLH may be prepared, where necessary, to give such advice to an extent going beyond that which an ordinary landlord would do, and that its staff may have skills and experience which are not necessarily available to the care and support providers. But the fact that no such support has been necessary in these three schemes, in the more than 10 years (in total) for which they have been on foot, in my judgment indicates that the availability of such support is not of more than minimal value.

(4) Assisting tenants in arranging for tradesmen to undertake work and arranging adaptations to cope with disability.

I shall also deal under this heading with "minor maintenance matters", which is included by Mr. Drabble in the last category of alleged support, but which is more conveniently dealt with here. Mr Drabble, in his final written submission, submits that a more suitable description of this head of support might be "a pro-active approach to housing adaptation and maintenance issues that goes well beyond that which would be expected of a "mere" landlord. The whole approach of GLH to property maintenance and adaptation is infused with the need to provide much more than a conventional housing service."

In considering this item it must be borne in mind that GLH's repair and maintenance obligations under the standard form tenancy agreement are very extensive. The tenant agrees merely to keep the interior of the premises in "good and clean condition" and to make good any damage to the premises caused by the tenant.

The following examples from the present schemes are relied upon by GLH. From the Oxford case there is the partial boarding up of the garage, possibly in 2004, to render it safe for use by Errol for woodworking (paragraphs 95 and 97 above). It is by no means clear that this went beyond the landlord's obligation in Clause 2(5) of the standard form lease to "take reasonable care to keep any shared accommodation ……… in reasonable repair and fit for use by the Tenant." Given that GLH knew that the garage was being used for woodwork, it is arguable that they had an obligation to render it safe. Even if this went beyond GLH's obligations as landlord, it was closely allied to those obligations.

Again from the Oxford case there are the recent discussions about opening up a window which has become fixed shut (paragraph 114 above). I have concluded that that is probably no more than a repair item for which the landlord is responsible.

From the Sheffield case there is the episode relating to water coming from the shower (para. 150 above), the installation of a secondary gas valve (para. 142 above) and the installation of water temperature control valves (paragraph 143 above). I accept that those works would appear to have gone beyond GLH's strict obligations under the tenancy agreement. However, the installation of the secondary gas valve would appear to have been clearly in GLH's interest, as owner of the property, in that Peter's tendency to play with the gas cooker raised a risk of fire.

In the Hounslow case there is the assistance with the purchase of an oven (para. 201 above).

McGoogan gave the example, from another scheme, of GLH arranging a "post box" into which a tenant could "post" food which he was in the habit of hiding behind radiators etc. (paragraph 108 above).

On the basis of these examples, and the evidence of GLH witnesses, I find that GLH does not, in relation to matters of maintenance and safety, restrict its activities to items for which it is or might be liable under the tenancy agreement. It is willing to adopt a proactive approach to suggesting modifications and improvements, and to assist with carrying those out, or with purchasing items, although that assistance would not extend as far as paying for the works or items where it is not liable to do so. I draw attention again to Ms Hand's evidence (paragraph 201 above) that GLH would assist with adaptations or other works going beyond their liability to repair in as much as GLH would arrange for the work to be carried out, but would not fund it. This is of some benefit to the tenants, even when they have 24 hour carers, in that GLH is likely have greater expertise in property related matters than do the support providers. I would not accept the argument (put forward on behalf of the local authorities) that where (as in the Oxford and Sheffield cases) the tenants themselves are incapable of considering such matters, the availability of such advice and support is of benefit only to the support provider. It seems to me that the provision of knowledge and expertise, and connections with contractors, which the support provider does not have is of some benefit to the tenants.

However, the fact that examples of such activity in the three cases before me are few and far between, and that they are closely allied to the landlord's property management activities, and are matters to which the support provider ought to be able if necessary (although perhaps less easily) to attend, in my judgment render this support of little consequence.

I do not attribute any significance to the fact that GLH has given some training in disability awareness to the contractors regularly employed by them. The benefit from this to tenants and support providers, if any, is too uncertain to be taken into account.

(5) Dealing with neighbour and tenant disputes

The only instances from these schemes under this head is that from the Oxford case in which GLH discussed with the support provider the complaint by a neighbour about noise from the garage (para. 95 above), and from the Sheffield case in which GLH spoke to a neighbour about a noisy barbecue (para. 141 above). Both those instances occurred shortly after the tenancy commenced, although I would regard them as evidence of the sort of involvement which GLH is prepared to have at any time during the schemes. Additional example 0292 (p.23 of the Additional Examples) contains, in the third paragraph, an example of GLH giving some advice direct to the tenant about children milling around outside the property. However, it seems to me that support of this nature ought to be available from the support provider, although I would accept that GLH employees may well be more used to dealing with such matters. In view of the rarity of the need for this assistance from GLH, and the availability of assistance from the support provider, I do not think that the availability of this service amounts to more than minimal benefit.

(6) Giving advice about housing related benefits

GLH has undoubtedly assisted in connection with housing benefit in relation to these three schemes. However, I have found in each case that (with the exception with the assistance with filling in the housing benefit claim form which was given by Sarah Hiles of GLH in the Hounslow case – para. 183 above) there is no sufficient evidence that the assistance went beyond helping with the issue which is being dealt with in these appeals.

I do not think that GLH can pray in aid the undoubtedly very extensive assistance which it has given to the tenants in connection with these appeals. I accept that it goes way beyond what a landlord could ordinarily be expected to provide. However, it is wholly exceptional and of a different order from the type of assistance with housing benefit which was routinely available to tenants of GLH at the time of the decisions under appeal.

In so far as GLH may have assisted with other housing benefit matters, GLH clearly has a direct interest in the tenants being awarded their due entitlement by way of housing benefit. Para. 16 of Sheffield City Council's submission to the Tribunal [S 1H] stated that assistance with claims for housing benefit is commonly given by social landlords. It seems to me likely that that is so. In particular, it must be the case that where points arise which are particularly within the landlord's knowledge (e.g. the question arising in the present case as to whether the accommodation is "exempt accommodation", which involves looking at what support GLH provides), the landlord will usually assist, at least to a reasonable extent.

As regards the suggestion by GLH to Oxfordshire County Council on 9 November 2007 that Michael and Errol might qualify for payments from the Independent Living Fund, this seems to have been a wholly exceptional situation where there had been some sort of technical error in not claiming, and where Mr McGoogan simply expressed his surprise that it was not being claimed. GLH were not in any way taking it upon themselves to advise about the tenants' finances. The subsequent consideration and application for this payment were dealt with by others. (Paragraphs 106 and 116(14) above).

Mr Parkinson's witness statement [H 364] states that GLH provides support and advice to tenants in relation to their entitlement to (in particular) the council tax discount available in the case of occupants with severe mental impairment. However, there is no evidence that any such advice was sought or given in relation to these schemes. Further, by the nature of this discount it is likely to be claimed at or soon after the commencement of the tenancy, so that advice will be given, if at all, at that stage as part of setting up the supported living scheme, but not thereafter.

(7) Liaising with relatives

There appears to be no evidence that GLH have, since the tenancies commenced, had any contact with the parents of either Michael and Errol in the Oxford case or Jade in the Hounslow case. Mr Dugher's evidence in the Sheffield case is that Peter's parents play an important part in his life and that he often spends the weekend with them. He goes on to say in para. 8 of his witness statement [H 373] that "Peter's parents know the staff team at GLH from the planning meetings and would not hesitate to contact GLH with any queries." There is, however, no evidence that since the commencement of the tenancy there have been communications between GLH and Peter's parents, or other relatives, which has involved GLH giving "support" to Peter. The letter from Peter's parents [H 388] does not appear so to assert.

I accept that there may well be occasions, in respect of GLH's properties generally, when GLH communicates with parents, or other relatives, after a tenancy has commenced. However, the fact that there appears to have been no such contact in any of the three schemes concerned in this case in my judgment indicates that this is likely to be a fairly rare event. One would expect the relatives to communicate with the support provider in the first instance, unless they are concerned about what is a clearly property related matter (in which case GLH is likely to be doing no more than exercising its ordinary property management function when dealing with the query).

(8) Undertaking resettlement activities

I accept that GLH would, if requested, be likely to give such assistance as it reasonably could in the event of a tenant wishing to leave, or the accommodation for some reason becoming unsuitable. That was the evidence of Miss Hand [T 133], which I accept in this respect. She said that it would be likely to be a joint role with the support provider. That evidence is also consistent with the degree of time and trouble which GLH expends in ensuring, prior to the commencement of tenancies, that the accommodation will be suitable for the intended occupants. Further, I note that the standard form Management Agreement provides as follows in Clause 12:

"If any tenant no longer requires the management, care and support services provided at the Property [the support provider] will use its reasonable endeavours to procure suitable alternative accommodation, and GLH agrees to provide [the support provider] with such reasonable assistance as [the support provider] may reasonably request."

Of course, it might well not be necessary for GLH to provide such assistance. For example, GLH does not appear to have provided any assistance in helping Kim (the tenant formerly sharing the house with Jade in the Hounslow case) to find local authority accommodation. It may well be that the tenant, in conjunction with the support provider and the local authority, could find new accommodation without GLH's assistance. However, GLH might well have expertise which would be of assistance in finding new accommodation.

There is no doubt that such assistance in finding other accommodation is potentially of great benefit to any particular tenant. There is also no doubt that it goes beyond what a landlord would ordinarily do in managing its property. However, suppose that this were the only respect in which GLH claimed to provide support. My strong inclination would then be that GLH would not be providing "support", within the meaning of the definition of "exempt accommodation". I think that the reason why not is similar to that which I discussed in para. 230 above. The words "provides ….support" are looking at the support provided as at the time when the question whether accommodation is "exempt"" is being considered. Although I have said that the words "provides ….support" are capable of including cases where the landlord makes available support which the tenant may need to call upon from time to time during the tenancy, I do not think that they include making available support which will only be called upon if and when it is contemplated that the tenant will leave the accommodation.

I do not therefore think that the words cover such assistance as is available from GLH in finding and moving to new accommodation. In the Oxford and Sheffield cases there has been no question of such support in fact being necessary to date. However, I feel rather less confident about applying my reasoning to the Hounslow case, in the light of Ms Hand's evidence (para. 197 above; T 130] that the accommodation in that case has been occupied by people with less severe learning difficulties and has been regarded as something of a "stepping stone" before moving on elsewhere [T 130], and her evidence of the discussion which took place with Mr. Shortall at a visit on 10 December 2007 (para. 207 above). Nevertheless, given the meaning which I have given to "provides …. support", I do not see how a distinction can be drawn between the Hounslow case and the other two cases.

The 24 hour telephone service

I have said in para. 21 above that the making available of this service could itself amount to the provision of "support", if what is being offered by way of advice and remedial action extends beyond ordinary housing management. As also noted above, Mr Parkinson's evidence in para. 7.1 of his witness statement was that about 20% of the 7573 calls to that number in 2007 were support related, as opposed to being general management calls. I am unclear how that figure was arrived at. In the Sheffield and Hounslow cases GLH has, as noted above, drawn up detailed lists of all the calls and visits relating to those properties of which it has records. I have found, in relation to those cases, that there is no specific evidence of any calls relating to matters other than repair and maintenance or housing benefit. If that is typical of the records which are available in relation to other schemes, it is unclear where the evidence that about 20% of the calls were "support related" can have come from. The local authorities' advocates were unable to put any of this to Mr. Parkinson, because the lists of contacts were not produced by GLH until after he had completed his evidence.

In any event, my findings above, in relation to these three schemes, are that (save, very possibly, the example relating to the new oven in the Hounslow case), there is no specific evidence of telephone calls by either the tenants or the support staff which related to matters other than ordinary property management.

M. OVERALL CONCLUSION

I have found, in relation to each of the categories of support said by GLH to have been provided, that either GLH did not at the material times provide support, or (in cases where it did so) that it did not do so to more than a minimal extent. I further find that, when one aggregates such minimal support as I have found to be provided under some of the categories, the support provided was not more than minimal.

Mr Drabble submits that a helpful way of looking at the issue is to ask whether the identity of GLH as a landlord which provides more than routine "bricks and mortar" services is important to the success of the placements. However, that question can only be answered positively if (a) GLH was at the material time doing something more than or different from ordinary property management, and which amounted to the provision of "support" and (b) that was important to the success of the placements. No-one familiar with the evidence in this case could doubt that the claimants in these cases are (and were at the times material to these appeals) fortunate to have GLH as their landlord. GLH can (and could at the material times) be relied upon to exercise its powers and duties as landlord in a thoroughly sympathetic way, and with particular regard to the claimants' learning difficulties. I have also found that GLH would at the material times have been likely to intervene if it became aware of something going badly wrong with the support arrangements, and to assist, if necessary, with obtaining other accommodation if it became necessary or desirable for a tenant to leave. However, it does not follow from that that GLH was at the material times (or is now) providing "support", or that that support was (or is) important to the success of the placements. In my judgment, and for the reasons which I have tried to explain, the very limited extent to which GLH was at the material times providing support was of minimal significance in relation to the success of these placements.

N. DISPOSAL

It follows that in my judgment the decision which I should in each case substitute for that made by the appeal tribunal is simply to dismiss the appeal from the relevant decision of the local authority.

(signed on the original) Charles Turnbull Commissioner

28 July 2008