Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case Nos.   CH/1530/2010

ADMINISTRATIVE APPEALS CHAMBER CH/1532/2010

CH/1534/2010

CH/1535/2010

CH/1537/2010

CH/1538/2010

CH/1539/2010

CH/1540/2010

 

1. These are appeals by 8 claimants, brought with my permission, against decisions made by a First-tier Tribunal sitting at Oxford on 8 April 2010. For the reasons set out below those decisions were in my judgment wrong in law and I set them aside. In exercise of the power in s.12 of the Tribunals Courts and Enforcement Act 2007 I re-make the First-tier Tribunal’s decisions as follows:

 

The Claimants’ appeals against the decisions made by Aylesbury Vale District Council are allowed (i) to the extent indicated in the Decision Notice and Statement of Reasons of the First-tier Tribunal signed on 22 April 2010 and (ii) to the additional extent that the sums eligible for housing benefit properly include each Claimant’s share of the part of the service charge attributable to costs incurred by the landlord in maintaining the communal garden and grounds.

 

2. Each of the Claimants is substantially disabled and has a tenancy of a bedroom in a block of 6 flats owned by Aragon Housing. Each of the flats has 2 bedrooms, lounge and kitchen. One of the bedrooms in each flat has an ensuite bathroom, and there is a separate bathroom for the use of the tenant who has the other room. Four of the flats have two tenants in each. One of the remaining two flats is occupied by only one tenant, due to his needs, and the sixth flat is occupied by one tenant and by whichever member of staff is staying at the premises. The flats have a communal garden area. The tenancy agreements recite that the accommodation is offered as part of a scheme aimed to promote independent living for people with a learning/physical disability.

 

3. The only issue decided by the First-tier Tribunal which is in issue in these appeals is whether each Claimant’s share of the part of the service charge attributable to the costs incurred by the landlord in maintaining the communal gardens is eligible for housing benefit. Aylesbury Vale District Council (“the Council”) decided that the gardening maintenance costs were not eligible, and the First-tier Tribunal upheld that decision. The Secretary of State for Work and Pensions accepted my invitation to be joined as Second Respondent to these appeals by the Claimant to the Upper Tribunal  an invitation which I made in view of the fact that my decision may be of significance in other cases.

 

4. The tenancy agreements state that the tenancy comprises a bedroom for the tenant’s exclusive use and “shared communal facilities”, described in the agreement as “bathroom, kitchen, lounge, garden”. In Clause 1 the tenancy is stated to be a “weekly non-shorthold assured tenancy which begins on [ ] and thereafter weekly until brought to an end.”

 

5. The agreements state that “the total rent for your home (inclusive of service charge) at the start of the tenancy is £[ ] per week.” A breakdown of that total sum into the amounts in respect of “rent”, “service charge” and “personal charge” is then shown. By Clause 2.4 “The Association may charge for services …..” By Clause 2.3 “The Association may, after consulting the Tenants affected, increase, add to, remove, reduce, or vary the services provided.” By Clause 2.5 “the cost of services shall be split equally between all rooms concerned.”

 

6. The landlord’s obligations do not in terms include an obligation to maintain the garden. However, Clause 5.2.2 does provide as follows:

 

“[the landlord] and the support agency will take reasonable care to keep the common entrances, halls, stairways, passageway and other parts including the electric lighting in good repair. We will make sure they are fit for use by you, other occupiers and visitors to your home.”

 

7. The tenants’ obligations (unsurprisingly) do not include any obligation to maintain the communal garden. The tenants’ only obligation in relation to the condition of the premises is to keep the inside of their respective rooms in good and clean condition.

 

8. By Clause 9.4 it is provided that the landlord can end the tenancy by “getting a Court Order for possession according to the provisions and requirements of legislation current from time to time. A summary of the grounds for possession, which apply at the date of this Tenancy, is provided separately for information only.” The list provided includes the situations where rent due has not been paid, and where a term of the agreement has been broken by the tenant.

 

9. The claim by each Claimant for housing benefit, as elaborated on in subsequent correspondence between the landlord and the Council, included in the service charges for which the tenant was said to be liable a sum (£1.50 per week per tenant) in respect of the costs incurred by the landlord in maintaining the garden.

 

10. By reg. 12(1) of the Housing Benefit Regulations 2006 the payments in respect of which housing benefit is payable include “(e) payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends.” Reg. 12(8) provides:

 

“In this regulation, regulation 12B (eligible rent) and Schedule 1 (ineligible service charges) -

“service charges” means periodical payments for services, whether or not under the same agreement as that under which the dwelling is occupied, or whether or not such a charge is specified as separate from or separately identified within other payments made by the occupier in respect of the dwelling;

 

“services” means services performed or facilities (including the use of furniture) provided for, or rights made available to, the occupier of a dwelling.”

 

11. Para. 1 of Schedule 1 to the 2006 Regulations provides (so far as directly material) as follows:

 

“The following service charges shall not be eligible to be met by housing benefit –

(a) charges in respect of day-to-day living expenses including, in particular, all provision of –

 

(i) …………………………………………………………………

(ii) …………………………………………………………………

(iii) leisure items such as either sports facilities (except a children’s play area), or television rental, licence and subscription fees (except radio relay charges and charges made in respect of the conveyance and installation and maintenance of equipment for the conveyance of a television broadcasting service);

(iv) cleaning of rooms and windows except cleaning of –

(aa) communal areas; or

(bb) the exterior of any windows where neither the claimant nor any member of his household is able to clean them himself,

where a payment is not made in respect of such cleaning by a local authority (including, in relation to England, a county council) or the Welsh Ministers to the claimant or his partner, or to another person on their behalf; and

(v) …………………………………………………………………….

 

(b) ……………………………………………………..

(c) ………………………………………………………

(d) ………………………………………………………

 

(e) ………………………………………………………

 

(f) ………………………………………………………

 

(g) charges in respect of any services not specified in sub-paragraphs (a) to (f) which are not connected with the provision of adequate accommodation.”

 

12. By para. 8 of Schedule 1 “communal areas” means “areas (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.”

 

13. In its Statement of Reasons the First-tier Tribunal referred to the facts and arguments in a decision by Deputy Commissioner Agnew in CH/755/2008 and then continued as follows:

 

“The Deputy Commissioner upheld the tribunal’s decision. He accepted and approved both of the reasons given by the tribunal. They were that the charge was not one upon which the tenant’s right to occupy depended and that the charge was not connected with the provision of adequate accommodation. These two grounds are separate and free standing. The landlords would say to me no doubt that they undertook to provide a garden but that is an obligation upon them and not upon the tenant. My reading of the lease does not identify any obligation on the tenants to keep the garden in any good state. That is understandable given their disabilities but however I look at it there is no obligation on them. Turning to the alternative ground the Deputy Commissioner accepted the tribunal’s finding that it would be speculative, highly improbable and simply not credible to conclude that if the gardening costs were not paid it would become overgrown and unsafe. In that case the garden was attached to a bungalow. In this case the garden will not be an integral part of the property in the same way as it was in CH/755/2008 because of the way that flats are designed. Of course the landlords want to make it a pleasant amenity for the tenants but the arguments they advanced on why it should be accepted as part of the provision of adequate housing do not stand up against the precedent of CH/755/2008. This component of the service charges is not allowable.”

 

14. In my judgment the part of the service charge attributable to the costs incurred by the landlord in the upkeep of the garden is eligible for housing benefit. First, it is in my judgment clear that payment of this element of the service charge is “a condition on which the right to occupy the dwelling depends”, within reg. 12(1)(e) of the 2006 Regulations. Although the tenancy agreements contain no express obligation on the landlord to maintain the garden, in my judgment the landlord is plainly entitled to do so, and to include the costs of doing so in the service charge. If the tenants do not pay that (or any other) element of the service charge, the landlord can seek an order for possession.

 

15. Secondly, in my judgment the gardening charges are not “day-to-day living expenses” within the opening words of para. 1(a) of Schedule 1. Para. 1(a) goes to considerable trouble specifically to list items which are considered to fall within that description. If charges for gardening had been intended to be included, I would have expected them to be specifically mentioned. Further, it is difficult to see why, if cleaning of communal areas is eligible, maintenance of a communal garden is not. 

 

16. Thirdly, in my judgment the gardening charges are for services “connected with the provision of adequate accommodation”, and so not rendered ineligible by para. 1(g). If the communal garden was not maintained it would clearly become, at the very least, highly unsightly and unsuitable for use by the tenants. I agree with what was said in para. 15 of the Appendix to CIS/1460/95:

 

“In general, where the terms on which a claimant occupies a dwelling include the right to use premises (including gardens, grounds walkways etc) beyond the dwelling exclusively occupied by the claimant, services related to the adequacy of those premises should be accepted as related to the provision of adequate accommodation.”

 

15. In my judgment the facts and reasoning in CH/755/2008 are plainly distinguishable. In that case the tenancy was of a two bedroomed bungalow and garden. There was no question of any part of the premises being shared or communal. The tenant’s obligations included an obligation to keep the garden in a good state of cultivation. Some 9 years after commencement of the tenancy the landlord began to provide a gardening service to the tenant, for which an additional service charge of £6.95 per week was charged.

 

16. The tribunal upheld the council’s decision that this additional charge was not eligible for housing benefit, on two grounds. The first was that the charge was a voluntary and optional extra and was not a payment that was a condition of occupying the accommodation, in that the claimant had requested the service to be provided for her; the claimant was not compelled to accept the service or pay for it. The Commissioner held that upon the limited evidence available to the tribunal that was a conclusion which it was entitled to reach. Such a conclusion is clearly not possible in the present case, where the landlord is in my view entitled under the terms of the tenancy agreement to include the costs of maintaining the garden in the service charge, and non-payment by each tenant of his or her share of that charge would give the landlord a ground for seeking an order for possession.

 

17. The second ground on which the tribunal had upheld the council’s decision in CH/755/2008 was that the gardening charge was not “connected with the provision of adequate accommodation” in that it was not established that if it was not paid (a) the tenant would lose the tenancy or (b) the garden would become overgrown and/or unsafe. The tribunal found that there was no evidence from the claimant or her GP that her state of health prevented her from complying with her tenancy obligation to maintain the garden. The Commissioner again held that the tribunal was entitled on the evidence before it to come to those conclusions. Again, conclusions to that effect are not possible on the evidence in the present case. It is doubtful whether any individual claimant has the right, let alone obligation, to maintain the communal garden, and in any event the tenancies are on the basis that the tenants are persons who need support by reason of their disabilities. It is clearly not contemplated by the tenancy agreements that the tenants will either maintain the communal garden themselves or engage outside contractors to do so. If the garden is not maintained, it will clearly become unsightly and unsuitable for use.

 

18. It is submitted by the Council that the situation where a garden is communal cannot properly be distinguished from the situation where the tenant has exclusive occupation of his or her own individual garden (as in CH/755/2008). It is submitted that if there were such a difference “it would lead to a situation where two tenants who each have individual gardens separated by a low fence would be in a position where any service charge for the maintenance of these two gardens would not be met by Housing Benefit. However, if the landlord then removes the low fence and classifies the two gardens as one communal garden, the charge would then fall to be met by Housing Benefit.”

 

19. The Council further submits as follows:

 

(1) The Oxford English Dictionary defines “adequate” as meaning “satisfactory or sufficient”, and Parliament intended Housing Benefit only to cover those service charges that would commonly be part of a rental contract between landlord and tenant, and are necessary to make the accommodation suitable for a claimant to live in.

 

(2) Many landlords do not include maintenance of a communal garden in the rent they charge, but there is no suggestion that the accommodation they are providing therefore falls to be described as inadequate or is not satisfactory or sufficient.

 

20. However, for present purposes there is in my judgment an important difference between the situation where a tenant (or a number of joint tenants) has or have exclusive possession of the garden, and the situation where each tenant has merely a right to use a communal garden.

 

21. If the garden is not communal, but rather is in the exclusive possession of the tenant (or two or more joint tenants), but the landlord agrees to maintain it, and charges the tenant for doing so, it is very arguable that what the tenant has done, by agreeing to a tenancy agreement in those terms, is in substance simply to employ the landlord to do something (maintain the garden) which a tenant would normally be expected either to do for himself, or (if he could not or was unwilling to do so) to pay someone else to do. The gardening charge payable to the landlord would on those facts very arguably amount in substance to “day-to-day living expenses” and so would be excluded by the opening words of para. 1(a). Further, because the tenant could simply carry out the works himself, or pay someone else to do so, the charges would very arguably not be “connected with the provision of adequate accommodation.”

 

22. If, on the other hand, the garden is a communal one and the landlord agrees in the tenancy agreements to maintain it, the tenants are not in principle entitled to maintain it themselves or to employ a contractor to do so. Still less is any individual tenant, acting on his own initiative, entitled to do so. Each tenant’s right is to have the garden area there, properly maintained, as something which is pleasant to look at and, so far as practicable and permitted by the terms of the tenancy, available to walk around in. It could not therefore be said that a tenant’s share of the costs incurred by the landlord constitutes “charges in respect of day-to-day living expenses” within para. 1(a) of Schedule 1. Furthermore the charges would in my judgment be charges “connected with the provision of adequate accommodation”. If (as here) there is no express obligation on either landlord or tenant to maintain the communal garden, the landlord is at least entitled to do so, and (if, as is likely, the service charge provisions in the tenancy permit) to add the costs to the service charge. The same conclusions in my judgment then follow as regards eligibility for housing benefit. Although, in this situation, the tenants acting in concert would probably be entitled, as against the landlord, to maintain the garden, it is doubtful whether any individual tenant, acting on his own initiative, would be entitled to do so.

 

23. Further, the fact, if it be a fact, that “many” landlords do not in the tenancy agreement undertake to maintain a communal garden does not mean that it is unusual for a landlord to retain control of the garden areas and to maintain them. That is the only way in which the landlord can ensure that the garden areas will be maintained, thereby protecting the rental value of the dwellings. Whilst it may not be common form in, for example, council tenancy agreements for the landlord to undertake to maintain a communal garden, I believe that such an obligation would often by undertaken by the landlord or a management company in tenancy agreements relating to a private block of flats. The Council, in its submission in reply, accepts that that is so in the case of registered social landlords. But in any event I make the point again that it is very doubtful whether a tenant who merely has the right, in common with other tenants, to use the garden areas, is entitled on his own initiative to carry out maintenance work to the garden. I do not therefore think that paying to the landlord a share of the cost of doing so constitutes paying charges “in respect of day-to-day living expenses”, or charges “not connected with the provision of adequate accommodation”, in the way that a tenant paying the landlord to maintain a garden of which he has exclusive possession might be.

 

24. The distinction drawn in para. 1(a)(iv) of Schedule 1, between (i) cleaning of rooms and windows in communal areas and external windows which cannot be reached by the tenant and (ii) cleaning of other rooms and windows, shows that the question whether the tenant is able (whether legally or in practice) to carry out the activity himself is potentially important, in determining whether a charge by the landlord for that service is eligible.

 

25. The Council contends that a significant factor in the reasoning in CIS/1460/95 (see para. 6 of the main decision) was that at that time the Housing Benefit Guidance Manual prepared by the then DSS stated that charges for gardening were within the list of eligible expenditure, whereas the current version of the Guidance does not. However, although the Commissioner set out (in para. 6 of the main decision) the appeal tribunal’s reasoning in that case, which included reliance on the Manual, that did not form part of his own reasoning. The Guidance Manual does not necessarily represent the law. Further, although the current version (as at June 2010) of the Manual does not list gardening charges as eligible (para. 4.730), neither does it list them as ineligible (para. 4.721), and para. 4.731 cautions that “this list (i.e. of eligible items) does not cover every service that may be eligible; it aims to cover the items you will usually need to determine.”

 

26. Finally, the Council asks that, if I consider that there is a distinction between the situation where there is a charge for maintaining a communal garden and the situation where a tenant (or a number of joint tenants of the whole property) have exclusive possession of the garden, I should say how that interpretation would apply to “other services which are currently deemed ineligible but provided on a communal basis (e.g. television licence and rental fees where provided in a communal lounge)”. Those particular items are expressly declared to be ineligible by para. 1(a)(iii) of Schedule 1. It is clearly not sensible for me to attempt to comment in relation to other items. I have received no argument in relation to them.

 

27. The Secretary of State submits as follows:

 

“The Secretary of State agrees that gardening services covering communal gardens, ie gardens to which tenants have equal and exclusive access as appears to be the case here are eligible as a service charge, in accordance with CIS/1460/95 and R(IS) 2/07. This is consistent with the current Housing Benefit Guidance.”

 

The Secretary of State’s submission is therefore to the same effect as my conclusion. (However, the reference to communal gardens as ones “to which tenants have equal and exclusive access” is perhaps capable of misleading, in that communal areas are not usually considered to be in the exclusive possession of the tenants; the landlord plainly has rights of access to them for the purpose of carryout out the maintenance obligations).

 

28. I therefore allow the appeals, to the effect set out in paragraph 1 above.

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

10 January 2011