Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/1961/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before Judge of the Upper Tribunal Miss E. Ovey

 

Decision:  The decision of the Appeal Tribunal given on 14^th January 2010 contained an error on a point of law.  Accordingly, the claimant’s appeal against the decision is allowed.  I set aside the tribunal’s decision and remit the matter to be heard by a new tribunal, to be constituted differently from the previous tribunal. 

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by the Aylesbury Vale District Council (“the Council”) against the decision of the First-tier Tribunal given on 14^th January 2010.  By his decision, the tribunal judge allowed the claimant’s appeal against the decision of the Council made on 30^th March 2009 that the claimant’s eligible rent for housing benefit purposes should be restricted to £106.83 per week.  He decided that the amount of rent sought, namely, £178.31 a week, was reasonable.

 

The facts

 

2. The primary facts of the matter are as follows.  The claimant made a claim for housing benefit on 23^rd February 2009.  In it she stated that her date of birth is 14^th October 1988, so she was then aged 20.  Her household for housing benefit purposes included her son, born on 1^st July 2008, who was therefore aged just under 8 months.  The claimant described herself as living in a hostel which contained a living room, three bedrooms, two bathrooms or shower rooms, three toilets, a kitchen and one other room.  All the accommodation was shared except for the bedrooms, of which the claimant and her baby occupied one.  The landlord was Life Housing (“Life”).  She had moved to the property on 23^rd February 2009 and held it on an assured shorthold tenancy for a rent of £133.57 a week.  (It appeared from the tenancy agreement that that was in fact the rent exclusive of ineligible service charges.)  She had not previously claimed because she had been “living at home”.

 

3. The day after the claimant’s claim form was received, the head of corporate services and finance of Life wrote to the Council explaining that Life is a charity providing supported accommodation for vulnerable young mothers and women expecting a baby.  He said that Life wished to increase its rents to £178.31 a week with effect from 6^th April 2009 for existing residents and attached a breakdown of the elements comprised in that rent, of which £10.31 was recognised to be ineligible for housing benefit purposes.  He added that the local women’s refuge provided similar accommodation and charged comparable rents at about £170 per week for each resident.

 

4. The Council responded on 4^th March 2009 stating that at first sight the new rent was such that the Council would consider it to be unreasonably high in comparison with that charged for suitable alternative accommodation.  The Council asked for further information so that it could decide whether the rent should be met by housing benefit or should instead be restricted to the level for suitable alternative accommodation, which was said to be currently about £80.77 a week.

 

5. The further information was duly provided on a form dated 18^th March 2009 in respect of both the claimant and her fellow occupant.  From this it appeared that there was only one toilet, but the “other” room was in fact an office, which neither tenant occupied, a laundry and a dining room.  The landlord offered support to the tenants, the cost of which was not included in the rent but was funded by a Supporting People grant.  The landlord was contractually liable to provide the tenants with support.

 

6. In the meantime, the Council had received a rent officer’s determination in respect of the rent (pp.33-34 of the bundle of documents).  I will need to return to the determination later, but for present purposes it should be noted that the determination found that the rent was significantly high, specifying for comparison a rent of £95 a week.

 

7. It seems from the Council’s response to the claimant’s appeal that when the claim was made the Council began to make a payment on account of £55 a week.  By a decision made on 30^th March 2009 and notified to the claimant by letter dated 31^st March 2009 the Council informed her that as a result of a change in eligible rent her claim had been reassessed from 6^th April 2009 and she was entitled to housing benefit of £106.83.  It was explained that the contractual rent of £178.31 was subject to a rent reduction of £61.17 and a further reduction of £10.31 in respect of ineligible service charges, leaving a balance of £106.83.  That figure itself included “extra help” of £11.83, since the claim-related rent was £95.  I have not seen anything to show what conclusion was reached on the claim for the period prior to 6^th April 2009.

 

8. It is clear that the deduction of £10.31 is not the subject of dispute, since the relevant service charges are recognised as ineligible.  The practical issue is as to the reduction of £61.17.

 

The Council’s reasons

 

9. The Council gave careful and detailed reasons for its conclusion that the rent reduction should be made (pages 42 to 46 of the bundle).  Before considering those reasons in detail, it is convenient to set out the legal background, which in these respects I understand is agreed.

 

10. Awards of housing benefit are governed principally by the Housing Benefit Regulations 2006, S.I. 2006 No. 213, as amended.  Reg. 11 provides, in summary, that housing benefit is payable in respect of the payments specified in reg. 12 and a claimant’s maximum housing benefit is to be calculated by reference to the amount of his eligible rent determined in accordance with whichever of a number of specified provisions applies. 

 

11. Para. 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006, S.I. 2006 No. 217, as amended, provides that the eligible rent of a person who is liable to make payments in respect of a dwelling occupied by him as his home which is exempt accommodation is to be determined in accordance with reg. 12 and reg. 13 in the form set out in para. 5 of Schedule 3 to the Consequential Provisions Order.  Under para. 4(10), “exempt accommodation” is defined to include accommodation provided by a registered charity where the charity or a body acting on its behalf also provides the claimant with care, support or supervision.  This claimant’s accommodation is therefore exempt accommodation and the alternative versions of regs. 12 and 13 apply.

 

12. Under the alternative reg. 12, housing benefit is payable in respect of, amongst other things, rent and service charges, other than ineligible service charges.  The amount of a person’s eligible rent is the aggregate of the amounts he is liable to pay less ineligible service charges, but subject to the provisions of regs. 13 and 13ZA as to restrictions on unreasonable payments and rent increases.  The alternative reg. 13 requires the relevant local authority to consider whether the claimant is occupying a dwelling larger than is reasonably required by him and others who also occupy that dwelling, having regard in particular to suitable alternative accommodation occupied by a household of the same size, and whether the rent the claimant is paying is unreasonably high by comparison with the rent payable in respect of suitable accommodation elsewhere.  If the local authority concludes that the dwelling is larger than is reasonably required or that the rent is unreasonably high, it is obliged, subject to paras. (4) to (7) of the regulation, to treat the claimant’s eligible rent as reduced by such amount as it considers appropriate, having regard in particular to the cost of suitable alternative accommodation elsewhere, and the claimant’s maximum housing benefit is to be calculated by reference to the eligible rent so reduced.

 

13. The alternative versions of regs. 12 and 13 are specified provisions for the purposes of reg. 11, so the claimant’s maximum housing benefit is to be determined in accordance with those provisions.

 

14. Reg. 14 imposes on the local authority an obligation to apply to a rent officer for a determination to be made in pursuance of the Housing Act functions in a case where para. 4 of Schedule 3 to the Consequential Provisions Order applies because the dwelling is exempt accommodation.  The expression “Housing Act functions” is defined by reg. 2 as having the same meaning as in s.136(1) of the Social Security Administration Act 1992, which in turn directs the reader to s.121 of the Housing Act 1988.  There the functions are effectively defined as the functions given by order made by the Secretary of State.  The relevant order is then found to be the Rent Officers (Housing Benefit Functions) Order 1997, S.I. 1997 No. 1984, as amended.  Art. 3 of the Order requires the rent officer to make the determination in accordance with Part I of Schedule I and to comply with Part II of Schedule I when making the determination.

 

15. Under Schedule I of the Housing Benefit Functions Order, the rent officer is required to determine, among other things:

 

(1) whether, in his opinion, the rent payable under the tenancy is significantly higher than the rent which the landlord might reasonably have been expected to obtain, and if so, the rent which the landlord might reasonably have been expected to obtain under the tenancy;

 

(2) whether the dwelling exceeds the size criteria for the occupiers and, if so, the rent which the landlord might reasonably have been expected to obtain for a dwelling which accords with the size criteria;

 

(3) whether the rent payable for the tenancy is exceptionally high, and if so, the highest rent which is not an exceptionally high rent and which a landlord might reasonably have been expected to obtain for the tenancy.

 

16. A determination under those provisions should therefore give the local authority a starting point for applying the provisions in the alternative version of reg. 13.  It is to be noted that in the present case the determination did not state that the dwelling exceeded the size criteria for the occupiers or that the rent was exceptionally high.

 

17. With that background in mind, I return to the Council’s reasons for reducing the claimant’s rent.  Having concluded that the claimant’s accommodation was exempt accommodation, the Council rightly identified the alternative version of reg. 13 as the appropriate provision.  It asked itself whether the claimant’s rent was unreasonably high and concluded that it was, by reference to:

 

(1) the rent officer’s significantly high rent determination; and

 

(2) a comparison with the rent charged for suitable alternative accommodation.

 

18. This clearly involved the Council in deciding what was suitable alternative accommodation, for which purpose the Council correctly identified reg. 13(9)(a) as the relevant statutory provision.  It reads, so far as material:

 

“in deciding what is suitable alternative accommodation, the relevant authority shall take account of the nature of the alternative accommodation and the facilities provided having regard to the age and state of health of all the persons to whom paragraph (10) applies …”

 

(The paragraph goes on to deal with security of tenure, but that is not material in the present case.)  Para. (10) applies, so far as relevant, to the claimant and any member of his family, defined in reg. 2, by reference to s.137 of the Social Security Contributions and Benefits Act 1992, to include any person under the age of 16 for whom the claimant is responsible.  In the present case, therefore, the persons concerned were clearly the claimant and her baby.

 

19. The Council noted that Life had said that the accommodation had no special facilities to facilitate the provision of support to the tenants and that the rent did not include a charge for care, support or supervision.  The reasons continue:

 

“As a result the only facilities that the Council had to consider were those that related to the fabric of the dwelling.

 

The Council found that the claimant was not elderly or in poor health.”

 

20. The statement of reasons then went on to explain that the Council had considered R. v. Housing Benefit Review Board for East Devon District Council ex parte Gibson (1993) 25 H.L.R. 487 and, as had been done in that case, had reviewed the rents charged for claimants in the private sector with similar circumstances to the claimant who had made new claims for accommodation with the same facilities in the Council’s area over the previous three months.  The Council was also aware that although, as stated in Gibson, it was not required to identify specific available properties, it would have to take reasonable steps to show that a pool of accommodation was available.  The highest comparator rent was found to have a rent of £106.83.  That, combined with the rent officer’s determination, confirmed that the claimant’s rent was unreasonably higher than that charged for suitable alternative accommodation.

 

21. The statement of reasons did not itself set out the nature of the accommodation which the Council had treated as suitable alternative accommodation, the results of its review of rents or the steps it had taken to show that a pool of accommodation was available.  The bundle, however, includes an internal checklist (pp.47-48), showing that suitable alternative accommodation was taken to be “accommodation that provides at least exclusive occupation of one bedroom with shared access to other facilities” and that the comparison had been “a check on all accommodation suitable for a single person which matches the tenancy arrangements currently in place for the claimant”.  It was said to provide the same level of facilities.  The Council had taken advice from the housing department and monitored local estate agents and letting advertisements in the local press, and was satisfied that there was an active market in the type of accommodation currently occupied by the claimant at a lower cost.  The Council indeed identified 251 properties matching the criteria adopted, a list of which appears at pp.51-55, showing a very wide range of rents.

 

22. The Council’s power and obligation under reg. 13(3) to restrict the eligible rent is subject to paras. (4) to (10) of the regulation, as noted in paragraph 12 above and as is rightly recognised in the statement of reasons.  Para. (4) has the effect that where the claimant is a member of the same household as a child for whom he is responsible, no deduction is to be made unless suitable alternative accommodation is available:

 

“and the authority considers that, taking into account the relevant factors, it is reasonable to expect the claimant to move from his present accommodation.”

 

Para. (9)(b) provides that the relevant factors are:

 

“(i) the claimant’s prospects of retaining his employment; and

 

(ii) the education of any child or young person … if such a move were to result in a change of school”.   

 

23. The Council expressed its conclusion on the para. (4) issues as follows:

 

“In this case, we were able to identify a pool of cheaper accommodation that would have been available to the claimant, specifically as covered above.  In this case, the claimant was not employed and her child was under school age, so, having taken into account the relevant factors, we decided it was reasonable to expect the claimant to move.”

 

In those circumstances, the Council decided to perform its para. (3) obligation by restricting the claimant’s eligible rent to the highest rent in comparator accommodation.  The statement of reasons concluded with a (correct) statement that the claimant had the right to appeal against the decision to restrict the eligible rent by submitting her reasons in writing to the Council by 30^th April 2009. 

 

24. In its internal checklist the Council added that it had also considered whether it was appropriate to expect the claimant to move given the age of her child, but noted that she had only recently moved to her present address, demonstrating that the child’s age was no barrier to a move.

 

The appeal to the First-tier Tribunal

 

25. The claimant appealed against the Council’s decision by letter dated 1^st May 2009 but with a received date-stamp of 15^th May 2009.  Upon inquiry by the Council, the delay was explained by a statement from the claimant’s representative that “considering the vulnerable nature of the clients we needed an opportunity to sit with them and explain the process.  This was made more difficult by the presence of children and working around their daily lives.”  I infer from this that an appeal was also brought by the claimant’s fellow resident in the accommodation.  The ground of appeal stated in the letter was simply that the claimant believed that the decision was wrong, but the letter went on to say that the representative would submit more detailed reasons. 

 

26. In fact there is nothing in the papers to show that more detailed reasons were provided until a written submission was received by the Tribunal Service on 13^th January 2010, the day before the hearing.  The covering letter referred to a request that there be non-attendance by either the representative or the local authority due to the adverse weather conditions (the representative being based in north Northumberland).  The record of proceedings and the decision notice refer to non-attendance by both parties by consent.  What is not clear to me is whether the submission reached the Council before the hearing.  The points raised were naturally not addressed in the Council’s own initial submission, which had already been produced, and there is no trace of a supplemental submission from the Council. 

 

27. The Council’s submission:

 

(1) dealt with the lateness of the appeal, concluding, in effect, that its powers under regs. 5 and 19 of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001, S.I. 2001 No. 1002, could not be exercised and that therefore it did not “support the application for a late appeal”;

 

(2) dealt with the merits of the appeal largely by restating the reasons given in its previous statement of reasons.  The Council went on, however, to draw attention to the cases of R. v. Royal Borough of Kensington and Chelsea ex parte Carney [1996] EWHC Admin. 62 and R. v. Housing Benefit Review Board of Camden London Borough Council ex parte W (1999) 32 H.L.R. 879, in which it was held that the only factors which could be taken into account in deciding whether it was reasonable to expect the claimant to move were those set out in para. (9)(b).

 

28. The representative’s submission contained the following relevant background information:

 

“All Life residents are extremely vulnerable and have been referred by partner agencies such as social services, homeless units, Connexions and children’s services.  The Life supported housing schemes with associated accommodation and support services have been identified as the most suitable accommodation for these vulnerable women.

 

Life is the only specialist provider of supported accommodation for vulnerable mothers in Aylesbury and the surrounding Buckinghamshire area, including schemes in High Wycombe and Hemel Hempstead as well as Aylesbury.

 

[The claimant] is a vulnerable 20 year old mother with a 4 month old baby (at time of admission) who was referred by Connexions in February 2009 following a breakdown of family relations.  [She] was unable to secure/maintain a private tenancy and was placed with Life as the accommodation and associated services were deemed the most suitable to meet her needs.

 

[The claimant] has been the subject of a robust support assessment and ongoing support plan to enable her to attain independent living and to ensure the health and well being of herself and her baby.

 

[She] moved out of the Life accommodation into a two bed maisonette in November 2009 following a successful supported period with Life.”

 

29. The points made by the representative in the submission may be summarised as follows:

 

(1) the Council was wrong in its assessment of what was suitable alternative accommodation and accordingly of the costs of such accommodation.  Private sector rentals or social general needs housing were not suitable to meet the claimant’s needs at the time of her admission to the Life scheme.  Such accommodation did not provide the comprehensive accommodation and support services provided by Life to meet her needs.  The Council did not consider suitable alternative accommodation in the wider Buckinghamshire area (which would include other Life accommodation), the Women’s Aid accommodation, or two bedroom accommodation, which would be suitable for a mother with a child.  When the rents for such alternative accommodation were considered, it could be seen that the claimant’s present rent was not unreasonably high;

 

(2) it would not be reasonable to expect the claimant to move having regard to her personal circumstances.  R. v. Housing Benefit Review Board of Westminster City Council ex parte Mehanne [2000] 1 WL.R. 16 and R. v. Housing Benefit Review Board of Westminster City Council ex parte Pallas [1997] EWHC Admin 818 allowed the Council to avoid the limitations of Carney and consider other factors;

 

(3) the Council did not justify the amount of the rent restriction otherwise than by referring to the highest rent of their proposed alternative accommodation.  Commissioner’s decision CH/4970/2002 required the Council to consider the amount of the reduction and to give reasons for it.  Here the eligible rent of £133.57 charged in respect of the accommodation in 2008-2009 was met in full and it was unreasonable and incorrect of the Council in 2009 to restrict the rent to £106.83 a week.

 

30. The tribunal judge gave a detailed decision notice which he subsequently directed should stand as the statement of reasons.  As set out in paragraph 1 above, he allowed the appeal.  Having summarised the respective submissions of the parties, with some comments, he said:

 

“6. I am satisfied that the authority has approached this appeal generally, at best.  A comparison of my summary of their submission in paragraph 2 above, where I endeavoured to include all of the detail they provided, with the outline from the representative of the processes that authorities should go through in case such as this, demonstrates very clearly the gaps in their enquiries and in their conclusions.  Their answer might have been the same had they carried out those enquiries but their failure to do what was necessary and what courts and the Commissioners have made clear … is required of them meant that their submission is inadequate.  The evidence from the representative points out the authority’s omissions but then goes on to address the relevant issues.  I am satisfied that it shows that the amount of rent sought is not unreasonable, that there is no evidence of suitable alternative accommodation, and that a move to new accommodation could be detrimental to the appellant.  Accordingly I find that the amount of rent sought is reasonable and the appeal succeeds.”

 

31. In its application for permission to appeal the Council submitted that the tribunal judge had made the following errors of law:

 

(1) he had decided to hear the late appeal although the appeal did not appear to meet any of the conditions which would allow it to be heard;

 

(2) he had wrongly proceeded on the basis (made explicit in para. 4 of the decision notice) that the Council was required to take into account factors other than those identified as “the relevant factors” by para. (9)(b), contrary to the Court of Appeal’s decision in ex parte W;

 

(3) in considering what might constitute suitable alternative accommodation, the tribunal judge had wrongly (as shown by para. 3 of the decision notice) taken into account the support provided by Life, which was not provided as part of the tenancy but separately under the Supporting People scheme, and for which Life was separately recompensed;

 

(4) the tribunal judge seemed to have accepted assertions that other authorities met the full costs of similar properties with similar facilities without any evidence to confirm those assertions.

 

32. The application for permission to appeal came before the same tribunal judge, who granted it “to resolve the correctness or not of the approach to the late appeal and also to allow consideration of the additional points raised”.  He also explained that although he had not formally considered the issue whether the appeal could be admitted out of time, the fact that he had given a decision on the substantive points meant that he had taken the decision and the reason for doing so was the nature of the claimant’s vulnerability as explained in her representative’s submission.

 

Further submissions on this appeal

 

33. Following a case management direction given on 27^th October 2010 the Council made a further submission amplifying their grounds of appeal.

 

34. As to the late appeal, the Council repeated the substance of its submission in relation to its own power to extend time for appealing.  It then recognised that the First-tier Tribunal has a much wider power under rule 5(3)(a) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008, S.I. 2008 No. 2685, to extend time for appealing, but contended that it is incumbent on any tribunal exercising that discretion to explain its reasons for doing so in a decision notice or a statement of reasons when requested and that failure to do so  constitutes an error of law. 

 

35. The Council repeated its submission as to the effect of ex parte W.

 

36. The Council disputed the apparent contention by the claimant that only accommodation provided by a landlord with the same specialist support skills could be considered as suitable alternative accommodation.  Here no specialist facilities were provided in the accommodation.  The statutory phrase “the nature of the accommodation … having regard to the age and state of health” of the claimant and her child therefore did not require the Council to look for accommodation provided by a landlord with specialist skills.  The housing benefit scheme was not intended to enable landlords who also provide support paid for by the Supporting People fund to charge a disproportionately high level of rent for accommodation without specialist facilities.

 

37. The Council pointed out that the assertions about what other authorities did were not put to the original decision maker, who therefore could not be said to have erred in not considering that evidence.  Further, even supposing that such rents were indeed met, there was no way of knowing whether that was because they were considered reasonable or because there was a dearth of suitable alternative accommodation.

 

38. In response the claimant’s representative continued to rely on the original submission on the substantive issues, but supported what was said about other local authorities by copies of decisions by Wycombe District Council and Dacorum Borough Council dated 6^th July 2010 and 25^th October 2010 respectively.  Not surprisingly, the representative said that the claimant was entirely satisfied with the process and decision of the lower tribunal hearing as respects the late appeal, while also asserting that there were special circumstances for the purposes of reg.19 of the Decisions and Appeals Regulations.

 

My decision:  the late appeal point

 

39. There seems to have been some confusion on this point.  There is in fact a record that when the appeal was received by the Tribunal Service the question whether time should be extended was referred to a tribunal judge for decision and on 23^rd June 2009 time for appealing was extended.  I have added the relevant pages to the bundle, together with a copy of a letter dated 24^th June 2009 to the Council informing the Council of the decision:  see pp. 146-148.

 

40. It was therefore unnecessary for the tribunal judge who decided the appeal to consider whether to extend time, because that decision had already been made and, apparently, notified, without itself being appealed against.  I note that the reference to the judge of the question whether time should be extended was made on a standard form referring to a set of rules no longer in force, but in view of the admittedly wide power given by rule 5(3)(a), that does not appear to me sufficient on its own to invalidate the decision to extend time. 

 

41. On the footing that that decision is valid, it is immaterial whether the tribunal judge followed a proper procedure in not formally extending time and not giving his reasons for (as he seems to have thought) extending time informally until after receiving an application for permission to appeal.  Since, however, this was one of the grounds on which the tribunal judge gave permission to appeal, I should state that in my view a decision to extend time should be made expressly and formally, not least so that the parties are in a position to challenge it on an informed basis, if they so wish and to the extent that they are able to do so. 

 

42. It seems to me possible, since the Council was apparently unaware of the extension of time originally granted, that the notification either went astray or was mislaid somewhere in the Council’s offices.  If the latter is correct, that is simply unfortunate for the Council.  If the former is correct, it may be that through no fault of its own the Council lost the opportunity to appeal promptly against the extension of time.  Nothing in this decision is to be taken as precluding the Council from challenging the decision to extend time, if it is able to identify a basis on which to do so, although I add by way of comment that I do not find it surprising that an extension was granted in respect of an appeal which was 15 days out of time and was brought by a vulnerable claimant represented by a distant (although clearly well qualified and rationally selected) representative.

 

My decision:  the substantive points

 

Ex parte W

 

43. The first point raised by the Council is that in considering whether it was reasonable to expect the claimant to move the tribunal judge wrongly took into account factors additional to those specified in reg. 13(9)(b), contrary to the decision of the Court of Appeal in ex parte W.  It is clear that the tribunal judge was urged to do so by the representative’s submission (p.91).  In paragraph 4 of the decision notice the judge said:

 

“The representative … goes on to remind me that I – and the authority – must take into account other relevant factors such as the possible effect on the appellant’s well-being and the well-being of her child, any disruption to her support facilities, and whether she had yet achieved the ability to live independently.  He suggests that this was ignored and indeed I can find no evidence of it being considered.”

 

The factors mentioned by the tribunal judge are the ones identified by the representative in his submission at p.91 and I therefore conclude that the judge took them into account specifically on the issue of whether it was reasonable to expect the claimant to move.

 

44. In so doing, the tribunal judge erred in law.  The Court of Appeal plainly did decide in ex parte W that the only factors a local authority could properly consider on that issue were the factors specified in reg. 13(9)(b):  see para. 57 of the decision.  It was recognised that additional matters might be relevant at other stages in the application of reg. 13 (then reg. 11 of a previous set of regulations), but there was no scope for additional factors to be taken into account when dealing with a reasonable expectation of moving.

 

45. The claimant’s representative submitted that:

 

“subsequent case law and clarification in the Court of Appeal has established that whilst these two factors are important and regarded as being particularly persuasive this does not mean that other factors are irrelevant.”

 

In my view, that is not a correct summary of the state of the authorities.

 

46. As set out in paragraph 29(2) above, the representative relied on R. v. Housing Benefit Review Board of the City of Westminster v. Mehanne, in which the Court of Appeal decided that the use of the expression “having regard in particular” in the equivalent of reg. 13(3) did not limit the range of circumstances to be considered in determining the amount of the reduction in the eligible rent or exclude all consideration of factors other than the factor particularly identified.  In ex parte W the Court of Appeal expressly drew attention to the difference between the “closely confined” wording of what is now para. (4) and the “more open” wording of para. (3).  Mehanne cannot fairly be said to have clarified ex parte W or to have established (as would be necessary) that ex parte W was wrong.

 

47. The representative also relied on R. v. Westminster City Council ex parte Pallas, a first instance decision which preceded ex parte W and in which, at paragraph 24, the judge accepted that the question of the claimant’s health, not being a specified relevant factor, could not be taken into account for para. (4) purposes.  What the judge did was to treat a substantial risk to the claimant’s health if he were to have to move as a circumstance relevant to the question whether suitable alternative accommodation did indeed exist:  see para. 27.

 

48. What seems to have happened is that the representative has based the submission on a passage in CPAG’s Housing Benefit and Council Tax Benefit Legislation appearing at p.1210-1211 of the 23^rd edition, which reads:

 

“This decision [i.e., ex parte W] must be treated as authoritatively resolving the question of whether other factors besides those set out in para. (9)(b) can be taken into account…

 

However, there is comfort for claimants in the acknowledgment by the Court of Appeal … in ex parte W that ‘credible reasons why a claimant cannot move can properly be considered under other aspects of [regulation 13]’.  It is suggested that the Court is here referring to the question of whether the alternative accommodation identified by the council is in truth suitable.  If the claimant cannot move, alternative accommodation cannot be suitable for him.  The Court is thereby effectively endorsing the approach taken in …Pallas.”

 

This passage itself in my view correctly states the position.  It does not, however, say that in considering whether a claimant can reasonably be expected to move the local authority may take into account any factors other than those specified in para. (9)(b), as the representative seems to have understood.  

 

Support provided by Life

 

49. At the heart of the second ground of appeal is the question what constituted suitable alternative accommodation for the claimant. The Council’s position, as I understand it, is straightforward.  In effect, it is said that the claimant’s current accommodation had no special physical facilities to facilitate the provision of support and no part of the rent related to the provision of support, so when looking at the nature of the alternative accommodation and its facilities to see whether it was suitable, the Council was equally not required to look for special physical facilities or a landlord able to provide support.  The claimant was not elderly or in poor health, so the Council could look at any accommodation which provided at least exclusive occupation of one bedroom with shared access to other facilities.  The tribunal judge, to paraphrase the grounds of appeal, had effectively treated the provision of support as if it were a feature of the accommodation, so that only landlords who also provided support could provide suitable alternative accommodation. 

 

50. The first step is to consider whether that is indeed what the tribunal judge did.  The Council in its grounds of appeal draws attention to para. 3 of the decision notice, but that paragraph is primarily summarising the submission of the claimant’s representative.  In para. 6, however, which is set out in paragraph 30 above, the judge expressed himself as satisfied that there was no evidence of suitable alternative accommodation.  Since there plainly was evidence of a substantial amount of accommodation meeting the Council’s test of suitable alternative accommodation, it must follow that in the judge’s view the Council’s test was wrong.

 

51. The representative’s submission on the question of suitable alternative accommodation in fact had a number of aspects

 

(1) the Connexions service assessed the claimant’s housing and support needs as in excess of accommodation available in the private sector or social general needs housing;

 

(2) suitable alternative accommodation was not compared on a like for like basis as set out in R. v. Housing Benefit Review Board of Tweeddale District Council ex parte Malcolm [1994] S.L.T. 1212;

 

(3) leaving aside the claimant’s support needs, no consideration had been given to two bedroom accommodation, for which the claimant would qualify;

 

(4) the Council had not taken into account the suitable alternative accommodation to be found in the wider (but still reasonably local) area.

 

Points (1), (2) and (4) all find mention in para. 3 of the decision notice and in my view must therefore be taken to be the basis on which the tribunal judge reached his decision.

 

52. I have not found this aspect of the matter easy, but I have concluded that the tribunal judge did not err in law in taking into account those various matters in reaching his decision on suitable alternative accommodation.  I bear in mind that the question is whether the accommodation is suitable for the claimant:  see R. v. Canterbury County Court ex parte Woodhouse (2^nd August 1994, unreported but referred to on p.1211 of CPAG’s Housing Benefit and Council Tax Benefit Legislation).  I also bear in mind the decision in Pallas, considered in paragraphs 47 and 48 above.  Finally, I approach the matter on the footing that the concept of suitable alternative accommodation is intended to enable the identification of accommodation in which the claimant, having moved to it, could reasonably be expected to continue living (ignoring for this purpose any questions of security of tenure).

 

53. Approaching the matter in that way, it seems to me that the Council was required to consider the actual housing needs of the claimant and to look for accommodation which would meet those needs.  Those needs, as it seems to me, would include the claimant’s need for support, although in the absence of clear evidence on the point I am not to be taken as saying that it follows that appropriate support could only be provided by the landlord of the property.  On the information before me, it does not appear that the Council took into account the specific housing needs of the claimant, as opposed to the housing needs of any woman of the claimant’s age currently occupying a single bedroom and using shared facilities.  There is no reference to methods of meeting the claimant’s actual housing needs in the survey of the availability of suitable alternative accommodation that the Council conducted.  Given the claimant’s particular needs, I take the view that the tribunal judge could properly consider whether the Council’s survey had been sufficiently wide-ranging and conclude that that was not the case.   

 

54. In summary on this aspect, then, I accept that the Council was not required to look only for housing with special physical facilities or with a landlord who would provide support.  I do not accept, however, that the tribunal judge imposed such a requirement.  The Council was required to look for accommodation which was suitable given the particular housing needs of the claimant and the tribunal judge did not err in law in his decision on the question whether or not the Council had done so.

 

55. I add also that it is not clear to me why, even ignoring the claimant’s need for support, the Council looked only at single bedroom accommodation.  The size criteria in Schedule 2 of the Housing Benefit Functions Order allow one bedroom or room suitable for living in for each of a person who is not a child and a child and an additional room for living in.  On that basis, the suitable alternative accommodation for the claimant seems to be accommodation with two bedrooms and a living room, which is in effect the point made by the claimant’s representative as mentioned in paragraph 51(3) above.  Although she had the use of only one bedroom in the Life accommodation, it appears that there were several shared rooms, including a room with laundry facilities, which would obviously be useful for a mother and baby.  In the absence of a detailed like for like comparison it is by no means clear that the sort of accommodation considered by the Council could fairly be considered suitable alternative accommodation even without regard to the claimant’s support  needs.

 

56. I do, however, accept the Council’s submission that the purpose of housing benefit is not to enable landlords who also provide support paid for by the Supporting People fund to charge disproportionately high rent not related to the accommodation provided.  I do not say that that is what happened in the present case, but the Council is properly concerned to see that that does not happen.

 

Evidence about other authorities

 

57. There seems to me to be force in the submission that the tribunal did not have evidence that other authorities were meeting Life rents in full from housing benefit.  Nor, as explained in paragraph 26 above, is it clear to me that the Council ever had the opportunity to meet this point.  Still less did it have the opportunity to do so at the point when the decision was made, although in para. 3 of the decision notice the tribunal judge refers to the failure to consider the practice of other local authorities as one of the criticisms made by the claimant’s representative.  To the extent that the tribunal judge placed reliance on that criticism (which is not clear), he therefore seems to me mistakenly to have taken into account an immaterial matter.

 

Additional points

 

58. In my view, there is force in the representative’s criticism of the Council’s failure to explain the basis for the reduction of the eligible rent to £106.83.  I say that for two reasons:

 

(1) Commissioner’s decision CH/4970/2002 establishes the general principle that the amount of the reduction must be considered and reasons must be given for the decision;

 

(2) in the year 2008/2009 the Council had been meeting rental charges of £133.57 per week for the same property.  While I can understand that the Council queried the very significant increase proposed by Life, at first sight the reduction below what the Council itself had previously been prepared to pay in housing benefit is hard to justify.

 

59. In the circumstances set out in paragraph 26 above, I am uncertain whether the Council had a fair opportunity to address the claimant’s case before the First-tier Tribunal.

 

Overall conclusion

 

60. While I have not accepted all the submissions on the part of the Council, I have concluded that the tribunal judge made an error of law in dealing with the ex parte W point as he did:  see paragraph 44 above.  That error may clearly have had a significant effect on his decision.  Bearing this in mind, together with the natural justice point identified in paragraph 59 above, I set aside the decision.

 

61. It appears to me clear that in the light of all the matters considered above, this case should be remitted to the First-tier Tribunal so that the parties have the opportunity to ensure that all the issues are explored with adequate evidence.  In particular, given the views I have expressed on suitable alternative accommodation and the reduction in the eligible rent, it would clearly be inappropriate for me to re-make the decision by restoring the decision of the decision maker and I do not have the material necessary to give any other decision.

 

62. I therefore remit the matter to be heard by a tribunal constituted differently from the previous tribunal.  That tribunal should, of course, have regard to what I have said about the applicable law.  I give no further directions. 

 

 

(Signed) E. Ovey

Judge of the Upper Tribunal

 

(Dated) 15^th April 2011