Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 9 April 2010 at Bolton under reference 122/10/00044) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 and the decision is RE-MADE.

The decision is that the claimant is not entitled to housing benefit in respect of his new home for the inclusive period from 17 August 2009 to 6 September 2009.

Reasons for Decision

A.          History and background

1.           The claimant is in his 30s. He has had schizo-effective disorder since he was 21. Recently, he has developed obsessive compulsive disorder and it is this that is relevant to this appeal. He was living in a local authority property. On 7 September 2009, he moved into a new home that had been found for him in housing association property; I call this his new home. As a result of his obsessive compulsive disorder, he was unable to move into his new home until it had been redecorated and carpeted. I have no hesitation in accepting all the evidence that has been given on his behalf as to the nature of his condition and the effect it would have on his ability to move to his new home. It is sufficient to refer to his excessive neatness and his phobia about dirt and paint. He is also stressed and anxious, which would prevent any works being carried out while he was in the property.

2.           The tenancy for the new home was signed on 17 August 2009. He made a claim for the rent on that property from that date. However, it was refused by the local authority. The claimant exercised his right of appeal and succeeded. The First-tier Tribunal decided that he was entitled to benefit in respect of his new home under regulation 7(8)(c)(i) of the Housing Benefit Regulations 2006. This applies if ‘the delay [in moving to the new home] was necessary in order to adapt the dwelling to meet the [claimant’s] disablement needs’.

3.           The tribunal gave the local authority permission to appeal to the Upper Tribunal and the case was referred to me. I gave directions that the following issues arose:

·             Does disablement include mental as well as physical disablement?

·             Does the word ‘necessary’ mean (a) essential or (b) reasonably required?

·             Do the works required in this case amount to adaptations of the dwelling?

·             Does the provision apply if the necessary works have to be carried out in a way that takes account of the claimant’s disablement?

4.           The claimant has been represented before the Upper Tribunal (but not before the First-tier Tribunal) by the CAB, which has made detailed submissions on each of those questions. The local authority has replied with detailed arguments on the same issues. I am grateful for the focussed and interesting arguments on both sides. I have decided that the third question is determinative of the appeal. I have, out of courtesy to the representatives, given my answers to the other questions briefly and without reference to the details of their arguments.

B.          Does disablement include mental as well as physical disablement?

5.           The answer is: yes. The reason is that there is no reason to limit it to physical disablement. The word ‘disablement’ is commonly used to cover both physical and mental disablement. Legislation regularly qualifies it in order to apply to one or the other. It may be easier to envisage circumstances in which the provision can apply to a physical disablement than to a mental disablement, but that is no reason to limit its scope if it can apply. I note that the claimant in R(H) 4/07 had anxiety and depression, but the Commissioner did not suggest that the provision could not apply on that ground.

C.          Does the word ‘necessary’ mean (a) essential or (b) reasonably required?

6.           The answer is: (b). The reason is that it accords with the normal way in which ‘necessary’ is used in ordinary usage. It would also severely restrict the scope of the provision if it were limited to what was essential. Very few things in life are really essential.

D.          Do the works required in this case amount to adaptations of the dwelling?

7.           The answer is: no. The reason is that Mr Commissioner May so decided in R(H) 4/07. He was concerned with the equivalent provision in the Housing Benefit (General) Regulations 1987. He decided that carpeting, wallpapering and redecoration did not involve adapting the dwelling. The works involved in that case are remarkably similar to this. The decision is reported and is binding on me unless following it would perpetuate error: R(I) 12/75 at [21]. Looking at the matter apart from authority, the arguments before me show that the interpretation of the provision is not a simple matter. The CAB has presented a detailed argument for what is in effect a purposive interpretation that avoids discrimination and focuses on the need to overcome an individual’s particular disability. The argument does not directly address Mr May’s decision. The CAB has made an arguable case, but that is not enough to show that the decision is wrong. I must, therefore, follow it.

8.           The result is that the tribunal could not properly on the evidence before it have made the decision that it did. In fairness, it does not appear that the judge was referred to Mr May’s decision.

E.          Does the provision apply if the necessary works have to be carried out in a way that takes account of the claimant’s disablement?

9.           The answer is: no, this is not sufficient to bring a case within the provision. It is the adapting of the dwelling that has to be necessary, not the manner in which it may have to be carried out.

F.           The effect of my decision

10.        As the tribunal misdirected itself in law, I have set aside its decision. On the evidence, there is only one decision that the tribunal could properly have made, which was to confirm the decision of the local authority that was under appeal. I have given that decision.