Upper Tribunal (Administrative Appeals Chamber)

Bristol City Council v AW [2009] UKUT 109 (AAC) (15 June 2009)
Housing and council tax benefits
other

 


IN THE UPPER TRIBUNAL Appeal No. CH/200/2009

ADMINISTRATIVE APPEALS CHAMBER

1. This is an appeal by Bristol City Council ("the Council"), brought with the permission of the chairman, against a decision of an appeal tribunal sitting at Bristol on 20 March 2008. For the reasons set out below I dismiss the appeal.
2. I held an oral hearing of this appeal at which the Council was represented by Mr Hill, the Council's senior policy officer, and the Claimant was represented by Mr Simon Ennals, a solicitor specialising in welfare and community care law in Sheffield under the name Essential Rights Legal Practice.
3. The Claimant is a man now aged 36 who has suffered a brain injury, some physical disability and moderate to severe learning disability. His condition is such that at times he displays extremely challenging behaviour. The Tribunal found that he has one to one help with activities of daily living, two to one help with social activities and two staff present at night, one sleeping over and the other awake. Two to three staff members are present during the day.
4. The care, support and supervision which the Claimant requires to enable him to live in self-contained accommodation has been commissioned (i.e. arranged and paid for) by Bristol NHS Primary Care Trust ("Bristol PCT"), which therefore appears to have taken the view that the Claimant's accommodation needs stem primarily from his state of health, and that it is therefore statutorily responsible under the national health legislation for ensuring that those needs are satisfied. (See as to this the letter from Bristol PCT, p.134, last paragraph).
5. Until 2003 the Claimant lived with his parents at home, but that eventually became impossible and he moved into what was intended to be temporary accommodation. What he required was two-bedroomed self-contained accommodation on the ground floor, which would need to be specially adapted in certain respects (e.g. to provide a "wet room"). The purpose of the second bedroom is to accommodate the carer sleeping overnight. Neither the Council nor the private or social sector was able to provide such housing, and Bristol PCT therefore asked Golden Lane Housing Ltd ("GLH") whether it could assist.
6. An overview of GLH and its operations is set out in paragraphs 32 to 42 of my decisions, given on 28 July 2008, in a number of appeals (CH/779/2007 and others) in which GLH was also the landlord. I shall refer to those cases simply as CH/779/2007.
7. GLH found, purchased and arranged for the necessary adaptations to a property ("the Property") in or near Bristol, and granted to the Claimant an assured weekly shorthold tenancy of the Property beginning on 8 January 2007, at an initial rent of £483.91, of which £9.61 was expressed to be in respect of "supporting people" charges, and £4.81 in respect of charges for gardening.
8. The Tribunal found that Bristol PCT entered into an agreement with an organisation called the Brandon Trust under which the latter agreed to provide the vast bulk of the care, support and supervision which the Claimant required. (It is stated in a letter from the Council to the Claimant's mother dated 27 April 2007 (p.55) that the cost of providing what Brandon Trust provides is in excess of £30,000 per annum. The Tribunal made no finding about that, but it would not be at all surprising if it was of that sort of order. No copy of the agreement between Bristol PCT and Brandon Trust was in evidence before the Tribunal (or is in evidence before me)).
9. On 8 January 2007 Bristol PCT entered into an agreement with GLH (described in the agreement as "the Service Provider") governing the relationship between them in relation to the Property and the functions to be performed by GLH ("the Service Agreement"). By Clause 3(1) GLH is to "undertake the provision of specialist learning disability housing services and supported housing services detailed in Schedule 1". By Clause 3(3) "the level of service required for each tenant will be agreed between the Trust and the Service Provider as part of each tenant's Person Centred Plan". However, no copy of any such specific agreement in relation to the Claimant was in evidence, and I was told at the hearing that there was none. Bristol PCT is given the right to nominate a new prospective tenant in the event of a vacancy, and is (by Clause 4(1)) required to pay rent during void periods. Schedule 1 contains in parts 1 and 2 a list of what appear to be ordinary housing management functions, and in part 3 (headed "landlord services") a list of services which are said on behalf of the Claimant to be matters which, in general, go beyond what an ordinary landlord would provide. At the beginning of the Schedule it is stated that "the weekly rate for Part 3 of the landlord services is £9.61 exclusive of VAT."
10. Clause 1(4)(i) of the Claimant's tenancy agreement (no full copy of which was in evidence) provides that "the landlord shall provide the services set out in schedule 1 for which the Tenant shall pay the charges set out in Clause 4(vi) and Schedule 1". At pages 48 to 51 of the papers is a copy of what the Tribunal was informed was Schedule 1, or part of it. "Section 3 – Landlord Services" is in similar terms to part 3 of Schedule 1 to the agreement between Bristol PCT and GLH. There is also a "Section 4A – support provider services provided on behalf of the landlord under a service level agreement". That is a reference to the agreement between Brandon Trust and GLH. No copy of the part of the tenancy agreement containing clause 4(vi) was in evidence. The tenancy commenced on 8 January 2007.
11. By letter to the Claimant dated 16 February 2007 (p.38) GLH increased the Claimant's rent to £503.75 per week, comprised of a "basic rent" of £486.45, "supporting people charges" of £10 and a charge for gardening of £5.01.
12. The Claimant had applied for housing benefit on 9 January 2007, on a form signed by his mother on 16 October 2006. By a decision made on 27 April 2007 the Council decided that the amount of rent eligible for housing benefit was limited to that assessed by a rent officer, an amount which was assessed on 24 May 2007 at £114.23 per week. The Council decided that the Claimant's accommodation was not "exempt accommodation" within the meaning of the definition in para. 4(10) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 – i.e. accommodation

"provided by a ……registered charity …… where that body or a person acting on its behalf also provides the claimant with care, support or supervision."

The Council's decision was made on the ground that the Council did not consider that GLH provided more than minimal "care, support or supervision" to the Claimant. Its reasoning relied heavily on the fact that a cost of only about £10 per week was stated in the tenancy agreement as the amount of "supporting people charges" (see p.59).

13. The Claimant, assisted by GLH, appealed against that decision. It was not contended on the Claimant's behalf before the Tribunal that any of the care, support or provision provided by Brandon Trust was provided "on behalf of" GLH. The contention was simply that GLH itself provided "support" to more than a minimal extent.

The Council's decision was made on the ground that the Council did not consider that GLH provided more than minimal "care, support or supervision" to the Claimant. Its reasoning relied heavily on the fact that a cost of only about £10 per week was stated in the tenancy agreement as the amount of "supporting people charges" (see p.59).

14. In addition to the documents which I have referred to above there were before the Tribunal, in particular:

(a) a witness statement by Mr Dugher, a senior housing consultant with GLH. This sets out the role of GLH generally in relation to supported accommodation which it provides throughout the country. (It covers much the same ground as did the witness statement of Mr Parkinson, the national manager of GLH, which was before me in CH/779/2007. Much of Mr Parkinson's witness statement was set out verbatim in Part F of my decision in CH/779/2007).

(b) a witness statement by Mr Verge, a housing consultant with GLH for the region which includes the Property. It covers in detail the role of GLH in relation to the Claimant and the Property, and the support which is said to have been actually provided and to be available to the Claimant.

(c) a letter dated 7 January 2008 from Bristol PCT setting out the respective roles of GLH and Brandon Trust. The letter states, in particular, that

"My colleague ….. contacted many agencies to ask them to propose a care package, which would meet [the Claimant's] needs. As a result of these proposals the network decided to commission a service from GLH and Brandon Trust to provide a housing care package for [the Claimant]. The different roles of these agencies were clearly defined at the start of this commissioning process."

15. Mr Dugher and Mr Verge both gave oral evidence to the Tribunal, and the chairman took what appears to be a very detailed note of their evidence. The Council was represented before the Tribunal by a Mr Regan, an agency contract worker, and the Claimant was represented by Mr Ennals.
16. The Tribunal allowed the Claimant's appeal. It decided that GLH provided "support" to more than a minimal extent, and further that there was no suitable alternative accommodation available, and that the amount of the Claimant's rent eligible for housing benefit was therefore not restricted to the amount of the rent officer assessment.
17. The decision was made on the day of the hearing, 20 March 2008, but, owing to loss of the papers, the Statement of Reasons was not provided until 31 October 2008. In the meantime I had on 28 July 2008 given my decisions in CH/779/2007. (I should explain here that the reference in the Statement of Reasons to my decision in CH/779/2007 is not to the decision which I made on 28 July 2008, but to an interim decision which I had made on 17 August 2007 in that case, in which I set aside the appeal tribunal's decision and directed that I would myself redetermine the facts, after rehearing the evidence. My substantive decisions on 28 July 2008 followed that rehearing).
18. The Statement of Reasons is based on an acceptance of all the GLH evidence as to the assistance which was actually provided and available to the Claimant from GLH. There had indeed been no real challenge by the Council to any of GLH's evidence.
19. Although I bear well in mind that the detailed Statement of Reasons must be read as a whole, and must be read against the background of GLH's evidence which, as I have said, was accepted, I consider the following passages to be of central importance, and to give the flavour of the Tribunal's reasoning.
20. First, under the heading "findings of fact" the Tribunal said:

"GLH differ from other providers of social housing in two ways. One is the usual range of functions of a landlord, although those functions are performed in a way different from a commercial or other social housing provider, suited to the specific clients and client group served. Materials are specifically developed to be accessible given the need to present formal documents in an accessible form. Building contractors are trained in understanding working [with] those with a learning disability and a range of contractors is not used, to reassure the tenants that only a known company will carry out maintenance and repairs.

Then there is what is referred to as the Golden Lane Housing Promise: that commits GLH to the provision of services over and above the ordinary landlord services, directed specifically to promoting the tenant's well being. Their work is very much founded on understanding and working with learning disabilities, and an awareness of service needs. With all tenants they are alive to the need to monitor the care and support provided and will act as a back up provider and source of referrals. Examples have been included of the way that that works in other tenancies and they are of a nature that [the Claimant] might need to rely on in future.

………………………………………………………………….

GLH as the Service Provider undertakes [in the Service Agreement] the provision of specialist learning disability housing services and supported housing services as set out in Schedule 1 of the agreement. The landlord services pursuant to that are reflected in the schedule at pages 48-51 and are materially more extensive than landlord services provided on a normal commercial or social housing basis.

………………………………………………………………………

Since the creation of the tenancy, GLH has provided tenancy and personal and telephone support (211). Golden [Lane's] role is described in the statement of Parveen Brown (letter, page 133-5) and in particular in the statement of Mr Verge on pages 136 to 142 as well as in more general terms in Mr Dugher's statement (110-134), with examples of support provided to tenants. Mr Dugher addressed the support through the transition to [the Property], regular additional support, through the provision of tenancy meetings and a newsletter, and telephone support covering maintenance, enquiries and support issues and quality service reviews. The tenancy support provided specifically is to cover the periodic damage that is going to be caused to the premises with some frequency during periods when [the Claimant] is not in control of himself and behaving in an extreme and violent manner. Specific support for [the Claimant] has included investigation and negotiation of appropriate provision for his problem with temperature control which has led to air conditioning being installed. The quality service reviews take into account the property maintenance, the support [the Claimant] needs and his overall wellbeing. His finances can also be covered in that and have been throughout in relation to claiming housing benefit. They have worked with [the Claimant] over his understanding of the landlord tenant relationship and obligations and in relation to benefits."

21. Then, under the heading "Reasons" the Tribunal said:

"…………………………………………………………

………GLH provides substantial support over and above the work involved as landlord. The support is provided as integral to the overall care package which enables [the Claimant] to be accommodated in the community in his own home in highly supported independence.

That is evident from the extent of its involvement in identifying the housing requirement long before the tenancy was created, the support provided while the accommodation was acquired and prepared and since; the specialist approach to communicating tenancy issues; the support actually provided here throughout in relation to benefits since the October 2006 correspondence.

The period specifically at issue is of course not from October 2006 but from the start of the tenancy in January 2007 to the date of the decision here on 27 April 2007. The specific illustrations of support being provided to [the Claimant] in Mr Dugher's statement postdate that period, but do illustrate that the support available will be provided to [the Claimant] – they are not services of a purely notional relevance.

[The Claimant] is someone with a high level of complex needs and he is someone likely to need the wider range of GLH support available, in relation for example to failure or misunderstandings over the care package as well as in relation to finances and documentation, although it is not established that he has or will attend tenancy meetings.

That evidence was not substantially challenged and was confirmed and amplified at the oral hearing. In [the Claimant's] case, GLH identified the housing requirement and the associated requirements that would enable him to be cared for by staff who would be personally safe and protected in undertaking that care; searched for a suitable property over a nine month period, visiting many properties on sale; identified the adaptations required including additional heating and the wet and soft rooms and took part in the care plan for support, arranged and offered the tenancy with explanations and documents suited to the learning difficulties from which [the Claimant] suffers, negotiated the installation of air conditioning after the start of the tenancy; and provided ongoing tenancy and financial help in particular over benefits, with support on a telephone and sometimes visiting basis.

The specific approach taken to working with those with learning difficulties means that even in dealing directly with normal tenancy matters, the approach of GLH amounts to support, support which [the Claimant] has needed and will continue to need.

The support provided by GLH is of the nature of support contemplated by the regulation.

It is clearly not de minimis."

22. I propose to deal in turn with the errors of law contended for in the Council's written grounds of appeal, as amplified by Mr Hill in argument before me, although it is convenient to deal with them in a rather different order from that set out in the grounds of appeal.
23. First, it is contended that it is apparent from the Statement of Reasons that the Tribunal regarded the assistance provided by GLH up to and very shortly after the grant of the tenancy as "support" which could be taken into account in determining whether the support provided by GLH was more than minimal.
24. The period directly in issue before the Tribunal was that between the grant of the tenancy in early January 2007 and the date of the Council's decision on 27 April 2007. That is of course only a very short period, and furthermore it ran from the commencement of the tenancy. As I said in paras. 27 and 28 of my decisions in CH/779/2007, there is in such a case 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 during the relevant period contemplated that the landlord would provide. In determining that, it is relevant to look at support provided during a subsequent period, if it provides evidence of what support it was contemplated would be provided. The fifth paragraph on page 6 of the Statement of Reasons (p.231) – beginning "the period specifically at issue ……." in my judgment shows that the Tribunal correctly directed itself in relation to the points which I have made in this paragraph.
25. However, in para. 26 of CH/779/2007 I said:

"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"

I remain of the view that that must be correct.

26. The Tribunal undoubtedly did place some reliance on the nature of GLH's involvement setting up the scheme. I refer, in particular, to the passages which from the Statement of Reasons which I have put in italics in para. 21 above. In my judgment, however, it is reasonably clear, reading the Statement of Reasons as a whole, that these items were referred to by the Tribunal in order to demonstrate (i) that the Claimant was a person whose disabilities meant that he was likely to need continuing support, after the grant of the tenancy, of the nature which the Tribunal found to be available from GLH and (ii) that the nature of GLH's involvement in setting up the scheme rendered it plausible that GLH would provide support, over and above the activities which would be expected of an ordinary landlord, once the Claimant had moved in. If that was the only significance of the reference to the part played by GLH in setting up the scheme, there was in my view nothing wrong with the Tribunal's reasoning in this respect.
27. In my judgment it is not right to read the Tribunal as saying that it regarded the activities of GLH in setting up the scheme as items which counted as "support" for the purpose of determining whether the continuing support "provided by" GLH after the grant of the tenancy was more than minimal. Two factors, in particular, lead me to that view. First, as I have said, the Tribunal specifically directed itself to the period in issue. Secondly, the longer passage which I have put in italics followed a paragraph in which the Tribunal found that the Claimant was someone "likely to need the wider range of GLH support available." The next paragraph, (beginning "that evidence was not substantially challenged) was intended, it seems to me, to demonstrate that the Claimant was likely to need the GLH support.
28. Secondly, it is contended by the Council that the Tribunal did not expressly consider the significance of the fact that the sum stated in the tenancy agreement to be payable by the Claimant to GLH in respect of "supporting people charges" was £9.61 per week, which was increased to £10 per week. That same figure of £9.61 per week was, as I have said, also stated in the agreement between GLH and Bristol PCT to be the "weekly rate for Part 3 of the Landlord services". It is contended by the Council that the amount of this payment "would indicate support at only a de minimis level."
29. The Tribunal did on p.3 of the Statement of Reasons, when referring to the terms of the tenancy agreement, state that supporting people charges were £10 per week. It did not anywhere in the Statement of Reasons refer to the figure of £9.61 in the Service Agreement.
30. The question of the cost of the support was raised (apparently by the chairman) in questions directed to Mr Dugher. The following is recorded in the Record of Proceedings (p.208):

"Whilst the services are delivered to our tenants across the country, for [the Claimant] we have commissioned, or BPCT have commissioned these services directly with us in a contract and consistency [sic], they commissioned us to provide the services and there is a consideration for the services provided.

The £9 odd, does that cover the costs.

Yes it does.

GLH does have charitable resources, that traditionally we have funded that activity from. It does cover the costs, not necessarily in [the Claimant's] context, because it is about availability and how often the service is used."

31. In my judgment the sum of £10 per week is not an amount which is so small that it indicates that the support agreed to be provided by GLH, over and above its ordinary property management functions, must be minimal. £10 per week is not an obviously nominal or token payment. I would accept the submission of Mr Ennals that a satisfactory test for determining whether support of more than a minimal amount is provided is to ask whether the support provided was likely to make a real difference to the Claimant's ability to live in the Property. It is not obvious that such support as could sensibly be purchased with a payment of £10 per week could not make a real difference. I bear in mind that, if that sum was paid to GLH in respect of each of its 900 or so tenants, it would be receiving a total of some £450,000 per annum in respect of "support". It is in my judgment also relevant to bear in mind that, on the breakdown of the core rent which was before the Tribunal (p.3), a sum of only £15.78 per week was attributed to the cost of performing GLH's ordinary management functions. The sum of £10 per week to be paid by Bristol PCT in respect of what the Tribunal found to be additional functions agreed to be performed by GLH was therefore about two thirds of the cost of performing the ordinary mangement functions.
32. In my judgment, the sum of about £10 per week was not so small that it required the Tribunal, as part of its reasoning process, expressly to consider whether its finding that more than minimal "support" was provided was consistent with the amount agreed to be paid for that support. The Tribunal's attention had been drawn to the amount of the payment during the oral evidence, and it did refer in the Statement of Reasons to the fact that in the breakdown of the rent attached to the tenancy agreement "supporting people" charges were £10 per week. In my judgment it did not in all the circumstances need to do more. The issue was not whether the value of the "support" which GLH provided justified, or bore any particular proportion to, the additional amount of housing benefit which would become payable if the Claimant's accommodation were found to be "exempt accommodation." The legislation does not require or permit any such comparison. This ground of appeal is therefore in my judgment not well founded.
33. It is further contended in the grounds of appeal that:

"A complex arrangement is then put in place about who is commissioning whom to provide what. This arrangement appears convoluted and was not explored by the Tribunal. It would seem strange that an organisation that is commissioned by a support provider, then gains considerable influence over the support provider and the support provider's performance, even to the point whether they should continue as a support provider. This confusion is confirmed by the fact the Primary Care Trust provide Golden Lane with some funding. The arrangements just seem to go round in a circle and this needs to be clarified before the law can be clarified correctly."

34. The evidence indicated, as I have said, that Bristol PCT commissioned (a) personal care and supervision, and the bulk of the required support, from Brandon Trust and (b) certain items of housing related support, specified in Part 3 of the Schedule 1 to the Service Agreement, from GLH. The sum of £9.61 per week was payable to GLH in respect of this support. The tenancy agreement provided for equivalent (although not identical) additional support to be provided by GLH to the Claimant, and £9.61 (initially) and then £10 of the rent payable by the Claimant was apportioned to that. The effect of the arrangements would appear to have been that if the support charge was paid by Bristol PCT to GLH, the Claimant need not also pay it. The Tribunal did not explore that, but I do not think that it needed to.
35. Clause 3(17) of the Service Agreement obliged GLH to

"notify the Trust [i.e. Bristol PCT] immediately of any serious failures in the service provided by the Support Provider [i.e. Brandon Trust] such that the Support Provider may (in the opinion of the Service Provider) be in breach of their obligations to the Service Provider, the Trust or the tenant; and to act as an advocate for the tenants in this regard."

36. Included in GLH's obligations in Part 3 of Schedule 1 to the Service Agreement were the following:

"1.3.2 Keeping in regular contact with tenants and their support providers, including formal annual service reviews to ensure the terms of the service level agreement [i.e. the agreement between Bristol PCT and Brandon Trust] is met.

1.3.4 Receiving complaints and advocating if necessary for tenants i.e. complaints concerning support providers or statutory authorities. Where necessary assisting the tenant(s) to change their support provider."

37. On the face of the documentation GLH therefore undertook a specific obligation to monitor the performance of Brandon Trust. I do not really understand the significance of the Council's complaint, in the grounds of appeal, that "the arrangements just seem to go round in a circle." It was open to GLH to agree to undertake the monitoring obligation, and I do not think that there was any evidence before the Tribunal which would have entitled it to find that this obligation was illusory on the ground that Bristol PCT may have been statutorily obliged itself to monitor how Brandon PCT was performing. The complaint that the Tribunal did not explore this further does not seem to me to hold water in the light of the fact that the Council had not itself sought to do so, whether in cross-examination of the GLH witnesses at the hearing or by seeking directions from the Tribunal that (for example) Bristol PCT produce a copy of the "service level agreement" between it and Brandon Trust.
38. In CH/779/2007 I found, on the basis of the detailed evidence there before me, that GLH did not purport to monitor the continued adequacy of the support arrangements and of the accommodation until some time after January 2007 (see para. 228) and I further said, obiter, that I would have held that regularly monitoring the continued adequacy of support and accommodation with a view to attempting to secure improvements if necessary did not fall within the words "provides the claimant with care, support or supervision." I said that in my view the word "support" connoted the giving of giving of advice and assistance to the claimant in coping with the practicalities of everyday life, and that it did not extend to scrutinising the arrangements for the provision by some other body of care, support and supervision, with a view to remedying defects perceived by GLH, or to recommending improvements. (See para. 232). That was said, however, in the context of cases where there was no evidence that the local authority which had commissioned the support from the main support provider had also commissioned GLH to monitor it. In my judgment the Tribunal was entitled in the present case to regard GLH's monitoring of the continued adequacy of the support provided by Brandon Trust, and the continued adequacy of the Property in meeting the Claimant's needs, as an aspect of continuing support provided to the Claimant.
39. It was argued by Mr Hill at the hearing that the Tribunal had failed sufficiently to consider whether there was likely to be any real necessity for the support available from GLH given the care, support and supervision which Brandon Trust provided. One of the reasons why, by my interim decision in CH/779/2007, I set aside the appeal tribunal's decision was (see para. 19 of my interim decision – p.149) that the Tribunal had not obtained sufficient information as to the support which was available from the main support provider, and in particular had not obtained a copy of the agreement between the commissioning local authority and the main support provider. However, I do not think that that criticism can be made in the present case. There was evidence that Bristol PCT had commissioned certain care and support from Brandon Trust, and certain support (for some of which it had agreed to pay nearly £10 per week) from GLH. Schedules of the housing related support to be provided by those bodies respectively were in evidence (at 48-51) although the agreement between Bristol PCT and Brandon Trust was not. As far as I can see no submission was made to the Tribunal that what GLH had agreed to do was duplicated by what Brandon Trust had agreed to do. Further, it was obvious that GLH had greater property expertise than Brandon Trust would have had, and therefore that it was likely to be in a better position to assist with property related matters such as organising the repair of damage caused by the Claimant, and desirable adaptations such as the air conditioning.
40. It is further argued in the grounds of appeal that "The Primary Care Trust and Brandon Trust approached Golden Lane to provide an accommodation solution; the support required was already a fact that had been evaluated. The statement of reasons highlights that Golden Lane was required to provide accommodation and manage tenancy issues; this would be the situation for any landlord."
41. Whilst there was in general no challenge on behalf of the Council to the GLH evidence about what support GLH had agreed to provide and had provided, it is true that the Council's representative did seek to make the point, in submissions (see pp.219-20), that what the Council had agreed to do did not go beyond ordinary property management.
42. However, the Tribunal found that GLH had agreed, with both the Claimant and Bristol PCT, to go beyond what would be involved in ordinary property management, and that what it had actually provided since the commencement of the tenancy, and what was available to the Claimant after the commencement of the tenancy, had gone beyond ordinary property management. In my judgment the Tribunal was entitled on the evidence before it to make those findings, and sufficiently explained why it did so.
43. The Tribunal stated that it accepted the detailed evidence of Mr Dugher as to the type of support which GLH generally made available, and of Mr Verge (see in particular paragraphs 5 and 6 of his witness statement), as to the support which had been provided by GLH since the commencement of the tenancy, and that it accepted their evidence that this support went beyond what an ordinary landlord would generally provide. It further stated that it accepted the evidence of Parveen Brown (of Bristol PCT), which included a statement (p.134) that "GLH does provide care, support and supervision to [the Claimant] that is far greater than any other housing association I am aware of"). The Tribunal further stated that "the landlord services pursant to [Schedule 1 to the Service Agreement] are reflected in the schedule at pages 48-51 and are materially more extensive than landlord services provided on a normal commercial or social housing basis." (In fact, the Tribunal was in error in referring to pages 48 to 51: pages 50 and 51 comprised details of the support to be provided by Brandon Trust. The Tribunal should have referred only to pages 48 and 49, which were broadly the equivalent of Part 3 of Schedule 1 to the Service Agreement. In my judgment, however, reading that paragraph of the Statement of Reasons as a whole shows that that was an error of a clerical nature. The Tribunal in my view knew which support obligations it was intending to talk about).
44. In my judgment the Tribunal did not in all the circumstances need to provide any more detailed justification for its findings. That is particularly so in view of the fact that (as I said in para. 21 CH/779/2007)

"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 [of "exempt accommodation"]. 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)."

45. In the second paragraph on p.229 (relating to the "Golden Lane Housing Promise") the Tribunal said that "examples have been included [in Mr Dugher's statement] of the way that that works in other tenancies and they are of a nature that [the Claimant] might need to rely on in future." That was a reference to the examples in Mr Dugher's statement (pages 115 to 131) of support said to have been provided in other schemes. In my judgment the Tribunal was entitled to rely on that evidence as demonstrating the support available in the Claimant's case. In Part K of my decisions in CH/779/2007 I refused to take into account such evidence, save where the witnesses were able to give evidence of them from their personal knowledge. However, that was in the light of the objections made on behalf of the councils to its admissibility and weight, and no such objections were made in the present case. In my judgment the Tribunal was entitled to rely on those examples in the manner which it did.
46. In any event, the Tribunal make findings as to certain specific items of post tenancy support actually provided (as opposed to merely made available). These were (i) the monitoring of the care and support provided by Brandon Trust and of the continued suitability of the accommodation to meet the Claimant's needs (ii) arranging for the repair (albeit at Bristol PCT's expense) of the unusual level of damage likely to be caused by the Claimant as a result of his challenging behaviour, (iii) arranging for the carrying out of further adaptations to the Property which might prove necessary, as had in fact been the case with the air conditioning and (iv) the assistance in connection with housing benefit.
47. I have already commented upon (i) (see paras. 35 to 38 above). As to (ii), the Tribunal referred in p.227 (penultimate paragraph) to the fact that the Claimant's needs could not be met in the private rented sector, "if only because of the level of damage to property involved". The evidence was that under the tenancy agreement it was the Claimant's responsibility to repair damage caused by him, but item 1.1.7 of Part 3 of Schedule 1 to the Service Agreement required GLH to be responsible for "helping the tenant to organise work that is their responsibility under the tenancy/licence agreement; i.e. rectifying tenant damage".
48. As regards (iv), assistance with housing benefit, by the time of the decision under appeal in this case GLH had assisted by writing letters explaining its assertion that the accommodation was "exempt accommodation", and after the date of that decision had of course assisted further by instructing Mr Ennals to take the appeal to the Tribunal. I accepted evidence in para. 254 of CH/779/2007 that assistance with housing benefit was commonly given by social landlords, particularly where points arise which are peculiarly within the landlord's knowledge (as is the case with the "exempt accommodation" issue). I found in that case, however, that the assistance which had been given by GLH after the date of the decisions under appeal, in the form of taking the case to a tribunal and then to a Commissioner, could not be taken into account as evidence of the sort of support available down to that date because it was "wholly exceptional and of a different order from the type of assistance with housing benefit which was routinely available at the time of the decisions under appeal." I am not sure that that objection applied with the same force in the present case, because by the date of the Council's decision of 27 April 2007 in the present case it was clear from my decision in R(H) 2/07 that the "on behalf of" argument would not work, and very possible that the Claimant would have to go to a tribunal if he was to succeed.
49. I nevertheless consider that the Tribunal was wrong to take into account, as an item of "support" going beyond ordinary property management, the assistance which GLH gave in connection with the appeal to the tribunal. If a landlord is not (ignoring any assistance given to the tenants in arguing the "exempt accommodation" point) providing support within the meaning of the definition, I do not think that a tenant's accommodation can be brought within the definition by virtue of the fact that the landlord intends (in the event of an adverse decision being made by the council) to support the tenant by taking the case to appeal (i.e. by pursuing what would otherwise be a bad case). It cannot in my judgment be right that what would otherwise be a bad case can be made into a good one by virtue simply of the landlord's willingness to support the tenant by taking the case to appeal. If this approach needs to be put on some more reasoned basis, it can I think be put on the basis either (i) that this support is of a nature which will only be necessary if and when there is an adverse decision, and therefore is not support available down to the date of the decision or (ii) that it is support which would cease to be needed if there were a favourable decision. It is difficult to see how assistance which would necessarily cease to be provided if a favourable decision were made can qualify as support.
50. However, the Tribunal was in my judgment entitled to find that, on the basis of the support which it found (having regard to evidence from other schemes) to be available, and the other (i.e. other than assistance with housing benefit) specific items of support which it found had actually been provided, that what was available and had been actually provided to the Claimant, went substantially beyond ordinary property management, and for the purpose of the definition constituted support of a more than minimal amount which had been "provided" during the relevant period.
51. Finally, reliance is placed in the grounds of appeal on the fact that in CH/779/07 I found (when substituting my own decisions for those made by the Tribunals, after rehearing the evidence) that GLH did not in those three cases provide more than minimal support.
52. However, that does not of course mean that in this case the Tribunal erred in law in reaching the opposite conclusion. Two tribunals may reach different conclusions on the same evidence without one of them being wrong in law. The question whether a particular item of alleged support goes beyond ordinary property management, and whether such "support" as is provided is more than minimal in extent, are ones on which different minds may legitimately differ. In any event, as Mr Ennals rightly submitted, the evidence before the Tribunal in this case was significantly different from that which was before me in relation to the three properties involved in CH/779/07, although there are naturally many similarities. Differences to which I would particularly draw attention are the following.
53. First, this case concerns a later time period, beginning in January 2007, which was the date after which I found in CH/779/2007 that GLH's practice of conducting more detailed "quality service reviews" began.
54. Secondly, there was no real challenge in this case to GLH's evidence as to the assistance which it provided and made available. In CH/779/07, by contrast, there was lengthy cross-examination of the GLH witnesses, together with disclosure of GLH documentation relating to visits and telephone contact. There was, for example, detailed investigation of the number of visits which had been made by GLH to each property, and the purpose of those visits, and of the number and purpose of calls to the 24 hour telephone line.
55. Thirdly, by the time of the hearing before me in CH/779/07 at least three years had elapsed since the grant of the tenancy in two of the cases, and more than two years in the third one. It was therefore possible to look at the support which had actually been provided over a much longer period than in the present case (where by the time of the Tribunal hearing only about a year had elapsed since the grant of the tenancy). I took the view in CH/779/07 that, looked at over that much longer period, the rarity of the instances in which some items of support (e.g. assisting with repairs) had been called upon indicated that the support was not more than minimal.
56. Fourthly, in this case the commissioning body was the primary care trust (not the social services authority) and it entered into agreements with GLH and Brandon Trust as to the functions to be performed by them respectively, and as to a sum to be paid by Bristol PCT to GLH in respect of some of the support activities which GLH agreed to carry out. Such an agreement was present only in one of the three GLH appeals before me in CH/779/07 (the Hounslow case), and was in different terms (see paras. 188-194 of my decision) and did not provide for a specific payment to be made by the commissioning body to GLH in respect of support activities.
57. Fifthly, the was no evidence in the appeals in CH/779/2007 that it was considered that the nature of the tenants' disabilities was such that they would cause an unusual amount of damage to the property (and therefore that GLH's willingness to arrange for the repair of such damage, despite it being a matter for which the tenant was liable under the tenancy agreement, would be unusually onerous).
58. I have also referred in this decision to certain other points of distinction between the cases.
59. Overall, the differences are such that in my view no argument can plausibly be mounted that the Tribunal in this case must have erred in law in reaching a different conclusion from that which I did in CH/779/2007. The chairman of the Tribunal was made aware, at a preliminary hearing on 10 January 2008, that I was due to hear CH/779/2007 and would be redetermining the facts (see p.169). Either party could have requested that this case be postponed until after I had given my decision in CH/779/2007. The Tribunal did not err in law in proceeding to hear the matter on 20 March 2008.
60. In my judgment, therefore, none of the points argued on behalf of the Council discloses an error of law on the part of the Tribunal, and I must therefore dismiss this appeal.

Charles Turnbull

Judge of the Upper Tribunal

15 June 2009