Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. CH/1344/2011

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an appeal by the Claimant, brought with my permission, against a decision of a First-tier Tribunal sitting at Oxford on 27 October 2009. For the reasons set out below that decision was in my judgment wrong in law and I set it aside. In exercise of the power in s.12 of the Tribunals, Courts and Enforcement Act 2007 I make the findings of fact set out below and re-make the First-tier Tribunal’s decision as follows:

 

The Claimant’s appeal against the decision of the City Council made on 30 October 2007 is dismissed.

 

Introduction

2. The Claimant is a woman with learning or mental health difficulties who occupies a room in a house pursuant to a tenancy of that room granted to her by Renaissance Social Housing Limited (“Renaissance”). The issue before the First-tier Tribunal was whether the Claimant’s accommodation was “exempt accommodation” – i.e. accommodation

 

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

 

3. Oxford City Council (“the City Council”) accepts that Renaissance is a “voluntary organisation”. The bulk of such care, support and supervision as the Claimant needs in connection with everyday living is provided to her, pursuant to its statutory duties, by Oxford County Council (“the County Council”), through its social services department, which has a unit (called “Oxford Supported Living (“OSL”)) which supports people with learning or other mental health difficulties to live as independently as possible in their own accommodation. It was not contended on behalf of the Claimant before the First-tier Tribunal that Renaissance provides her with any “care” or “supervision”, but it was contended that Renaissance provides her with certain elements of housing related “support”, and thus that her accommodation was “exempt accommodation”, within the above definition.

 

4. The significance of the issue is in broad terms that housing benefit is likely to be payable by the City Council at a substantially higher rate if the Claimant’s accommodation is “exempt accommodation”. That is because as from 1996 a new version of regulation 11 of the Housing Benefit (General) Regulations 1987 was enacted, under which the rent eligible for housing benefit was in effect limited to that determined by a rent officer in accordance with specified criteria. However, a saving provision was enacted (in regulation 10 of the Housing Benefit (General) Amendment Regulations 1995). This provided that the old form of regulation 11 should continue to apply in certain cases, one of which (as subsequently amended) was that of a person “who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation”. “Exempt accommodation” was defined in regulation 10(6) of the 1995 Regulations (again as subsequently amended) as including accommodation within the definition set out in paragraph 2 above.

 

5. Under the consolidation of the housing benefit legislation which took effect from 6 March 2006, regulation 11 of the 1987 Regulations became regulation 13 of the Housing Benefit Regulations 2006. Provision for the continued application of “old” regulation 11 is now in effect contained in the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. The definition of “exempt accommodation”, in the terms set out above, is now in paragraph 4(1) of Schedule 3 to those Regulations.

 

6. In cases where the old form of regulation 11 applies the effect, broadly, is that the Council cannot restrict, by reference to a rent officer’s determination (or by reference to the local housing allowance rules), the amount of rent eligible for housing benefit unless there is suitable cheaper alternative accommodation available to the claimant and it is reasonable to expect the claimant to move to it.

 

7. At the time of the City Council’s decision under appeal to the First-tier Tribunal the contractual rent payable under the Claimant’s tenancy was £209.86 per week. However, the City Council’s decision under appeal was that the Claimant was entitled by way of housing benefit only to £80 per week, being the amount of the rent officer’s determination. There were a further 21 tenants of Renaissance in a similar position. The total amount of housing benefit potentially in issue was of the order of £150,000 per annum. Regrettably, for various reasons more than 4 years have now passed since the date of the City Council’s decision.

 

The factual background and history

8. On 25 May 2000 Renaissance and the County Council entered into an “Agreement for the provision of tenancies in supported living”. Broadly, it provided for a joint venture by which Renaissance would provide housing for persons in need of “supported accommodation” and the County Council would provide or arrange the provision of the necessary care, supervision and support to the tenants. The intention, as stated in the recitals, was that the tenants would be persons who were entitled, by reason of their age, illness, or disability, to be provided by the County Council with accommodation and community care services. The Agreement set out, in a great degree of detail, the respective obligations of the parties. Some of Renaissance’s obligations, set out in Clause 7 of the Agreement and taken at face value, would appear to have gone significantly beyond ordinary housing management.

 

9. Pursuant to that Agreement tenancies of rooms were granted by Renaissance to a total of 26 persons (including the Claimant), accommodated in 8 different houses, all in the Oxford area. Each house accommodates either 3 or 4 tenants, and each has an additional bedroom which is occupied by a member of the support staff who sleeps there overnight. One of the houses (which accommodates 4 tenants) is outside the City Council’s area, which explains why the City Council is only responsible for paying housing benefit in respect of a total of 22 of the tenants, in 7 houses. Some of the tenants have of course moved on since the original tenancies were granted, and new tenancies have from time to time been granted to tenants with similar requirements. As at 1 October 2009 Renaissance had a portfolio of about 45 properties across the UK (p.378). Its head office is in Newcastle.

 

10. There was almost no information in evidence before the First-tier Tribunal about the precise extent or nature of either the Claimant’s or the other tenants’ disabilities, but they are presumably such that the tenants have qualified for substantial support from the County Council, and indeed they appear to require an overnight support worker in each house. There was evidence that some at least of the tenants go out to day centres or therapeutic work, some at least can be left alone for some parts of the day, some at least can (for example) use public transport on their own, and some at least are capable of significant verbal and written communication. The Tribunal found that the Claimant has a 24 hour care and support package. There is evidence that the Claimant can read and write. The First-tier Tribunal found that most of the time that the tenants are in their dwellings there are support staff present.

 

11. For some time the City Council apparently accepted that the accommodation of the tenants was “exempt accommodation”, and paid housing benefit on that basis. However, in 2004 the City Council decided that the tenancies were not tenancies of “exempt accommodation”, and therefore that the amount of housing benefit was restricted to the amount of the rent officer’s determination (then £70 in the Claimant’s case). The Claimant and the other tenants appealed. The appeals of all the tenants were treated as comprised in the one appeal, and dealt with at the same hearing before an appeal tribunal on 17 August 2005 (“the 2005 Tribunal”). The 2005 Tribunal dismissed the appeals.

 

12. The 2005 Tribunal’s Statement of Reasons runs to 15 pages, and contains detailed findings of fact. Evidence as to the manner in which support was provided to the tenants was given by the County Council employee who was responsible for the deployment of County Council support staff.  At that time Renaissance employed an “area manager” who would visit each house in turn to meet the tenants. It was found that such visits had in the past been every 10 to 14 days, but that by the date of the hearing they were less frequent. The visits were found to be “group meetings which last about an hour each in each of the 7 houses.”

 

13. It was contended on behalf of the claimant tenants that the items of assistance provided to them by Renaissance which qualified as “support” were “the fortnightly visits, help with the housing benefit application and the pre-tenancy support”. The 2005 Tribunal tribunal accepted that “most landlords, even responsible social landlords do not visit tenants once a fortnight”, but found that “all the evidence suggests that these visits relate primarily to housing and housing related issues”. The significance of the “pre-tenancy support” was discounted on the ground that it was not ongoing. Assistance with housing benefit applications was discounted on the ground that it would be provided by many private as well as social landlords because it was in their direct interest to do so. Overall, the tribunal concluded that “the fortnightly visits, help with housing benefit applications and pre-tenancy support are de minimis. They do not amount to care, support or supervision ….” There was no appeal against that decision.

 

14. On 17 April 2007 a further Agreement (“the 2007 Agreement”) was entered into between the County Council and Renaissance. It was expressed to run for a little more than 8 years, with an option to extend for a further 5 years. It provided that in consideration of the total of sum of £14,430 per annum (i.e. £555 per annum in respect of each tenant), to be paid to Renaissance by the County Council, Renaissance would perform the services set out in Schedule 1 to the Agreement in respect of the tenants in the 8 houses. Schedule 1 stated that “the care support and supervision to be provided will supplement the support provided by the main support and personal care provider. [Renaissance] will in no circumstances provide personal care to tenants.” The services to be provided by Renaissance were then set out as follows:

 

“1. Assistance with the security of the dwelling

·       To ensure initially that the security of the dwelling needs are assessed and provided for, and on visits continue to monitor the security arrangements.

 

2. Assistance with the maintenance of safety of the dwelling

·       During the regular housing support manager’s visit to carry out a thorough “duty of care” check as detailed in the duty of care checklist.

 

3. Advising service users on use of domestic equipment & applicances

·       On the initial opening of the scheme and ongoing to provide an advisory service to the service users on life skills in relation to using and caring for the domestic equipment. To also provide this service to the care & support team.

 

4. Assisting with arranging minor repairs to service users’ own equipment and appliances

·       To use [Renaissance’s] contacts and repairs team to assist the service users with minor repairs to their own equipment.

 

5. Arranging adaptations to help the service user to cope with their disability

·       To build any initial adaptations into the housing specification and the required works, in conjunction with the occupational therapist. To respond to any change in needs and where required to apply for a Disabled Facilities Grant on the service user’s behalf.

 

6. Advising & assisting service users in relationships & disputes with neighbours

·       To provide support to the service users in developing and maintaining good relationships with their neighbours and to intervene to resolve issues such as noise, parking, fencing etc.

 

7. Advising & assisting tenants to deal with benefit claims & other correspondence relevant to sustaining occupancy of the dwelling

·       To assist the service users to make valid claims for housing benefits, to expedite their claims, and help them to appeal where necessary. To ensure service users are fully involved in this process throughout.

 

8. Advising & assisting with move on accommodation

·       To assist service users at tenancy take-up and where they wish to move on, by advising on alternative accommodation, sometimes providing that accommodation for them, and helping by developing a housing specification and providing a house search against that specification. Advising on the suitability of different tenancy agreements etc.

 

9. General Counselling & Support

·       To include befriending, advising on maintaining/terminating the tenancy & neighbour issues, reminding and non-specialist counselling where this does not overlap with similar services provided by the specialist Support Provider.

 

10. Contributing to Supervision of Partnership

·       As a partner of the scheme, to enter in a log book following each property visit, recording what they did on each visit plus any actions to be taken. Renaissance’s support worker will also circulate a monthly summary report covering all properties, and including any issues in relation to the support/housing/tenancy/commissioning of the scheme.”

 

15. The background to the 2007 Agreement is well described in the Statement of Reasons of the First-tier Tribunal whose decision is now under appeal to me (“the 2009 Tribunal”):

 

“….. the result of the City Council decision, and it being upheld by the [2005] Tribunal, was that tenants were – for the most part – unable to meet the contractual rent. The County Council, I learned today, had taken the very unusual, and in the long term unsustainable, step of itself paying the difference between the housing benefit allowed and the contractual rent. This is said to have cost the County Council over £150,000 per year. In the words of Ms Nursey, one of the witnesses today ….., the County Council simply cannot afford this. With surprising candour, she said the [2007 Agreement] had been devised specifically to get around the problem of the housing benefit being restricted to the amount of the rent officer determination. The way in which that contract is actually implemented consists of one part time housing officer providing the support set out in the contract, so if this was sufficient to take the dwellings into the category of exempt accommodation, it would be money well spent. The County Council in return for less than £15,000 a year payable under the [2007 Agreement] would relieve itself of payments (voluntarily not contractually) paid by it to Renaissance in the sum of over £150,000 a year.”

 

16. On 30 March 2007 Renaissance applied to the City Council for supersession of the existing housing benefit awards payable in respect of each of the tenants by reason of a change of circumstances, which it summarised as follows:

 

“[Renaissance] has always provided what we believe to be a significant and important level of direct housing related support to our tenants. This direct provision of housing related support has now been formalised and expanded under [the 2007 Agreement]. A specialist member of staff (Lynn Campbell) has been recruited to provide this service, with effect from 26 March 2007.”

 

17. However, by decisions made on 30 October 2007 the City Council, after being provided by Renaissance with further information as to the nature of Ms Campbell’s activities, refused the supersession applications on the ground that the support was “little more than minimal and as a result still does not bring the properties into the scope of “exempt accommodation””.

 

18. The tenants appealed. The appeal by the Claimant was heard on 27 October 2009 by the 2009 Tribunal, which comprised the same chairman who had decided the 2005 appeal. The 2009 Tribunal’s decision was made on the following day. It dismissed the Claimant’s appeal. The Decision Notice set out what were described as “summary reasons for decision” which in fact extended to 4 closely typed pages. A Statement of Reasons was then requested, which for various reasons was not provided until 29 September 2010, and extended to a further 3 pages. The bulk of the factual findings were set out in the Decision Notice.

 

19. It appears that the appeals by the other tenants were not formally before the 2009 Tribunal for decision. In the Decision Notice the Tribunal said that the Claimant’s case was “the lead case” and that “this decision will, at the request of the parties, be applied in deciding their appeals.” I do not know whether separate decisions have in fact formally been made in relation to the appeals by the other tenants. The only appeal before me is that by the Claimant.

 

20. I held an oral hearing of the appeal to the Upper Tribunal at which Mr Danny Key, an adviser on housing benefit and related matters, appeared on behalf of the Claimant, and Miss Alison Meacher of counsel (who had appeared on behalf of the City Council before the 2005 Tribunal, although not before the 2009 Tribunal) appeared on behalf of the City Council.

 

 

The 2009 Tribunal’s decision

21. The evidence before the First-tier Tribunal about the assistance to tenants actually provided by Ms Campbell came from the following sources. First, there were witness statements by Ms Campbell herself and Ann Nursey, assistant head of social care for adults (learning disabilities) at the County Council, both of whom also gave oral evidence to the Tribunal. Secondly, there were weekly “diaries” completed by Ms Campbell in relation to her visits to the houses, for the period April 2007 to April 2008. Thirdly, there were two monitoring reports by the County Council, assessing the quality of the service provided by Renaissance. The first covered the period from March 2007 to June 2008, and the second covered the additional period down to September 2009.

 

22. The 2009 Tribunal’s overall finding was as follows (see the penultimate paragraph of the Decision Notice):

 

“Having analysed the evidence available, and excluding those Housing Officer tasks which all Housing Officers in social housing provide, I have to decide whether what remains, while undoubtedly ‘support’, is de minimis. ………………. The vast majority of what [Ms Campbell] does is ordinary housing related support. While I accept there is the potential for greater involvement, and in matters which do go beyond normal housing related landlord duties, under the terms of [the 2007 Agreement], I do not accept that the evidence shows that this has happened to any extent which takes it above de minimis.”

 

23. Ms Campbell’s evidence was, and the First-tier Tribunal found, that she was employed to work 18.5 hours a week, spread over two days a week. On one day she visited each of the 8 properties, seeing such tenants and support workers as were there, and also visited the Oxford Supported Living offices. On the other day she worked from home doing administration arising from the visits, and if necessary speaking to tenants on the telephone. The First-tier Tribunal found that Ms Campbell does not see all the tenants regularly (because some of them will not be there when she arrives), and that when she does see the tenants it is only for “a few minutes a week”.

 

24. The First-tier Tribunal’s more detailed findings and conclusions in relation to each of the categories of support set out in Schedule 1 to the 2007 Agreement (see para. 14 above) ca be summarised as follows.

 

1. (security) and 2. (safety).

 

The Tribunal discounted these on the ground that they were “pure housing management and matters of contractual obligation as between landlord and tenant”.

 

5. (Arranging adaptations) 6 (relationships and disputes with neighbours) and 8 (move-on accommodation)

 

The Tribunal’s approach to these was to discount them on the ground that Ms Campbell had agreed in evidence that “many landlords will undertake these, particularly social landlords.” As to 5, the Tribunal later stated: “Liaison with the OT (occupational therapist) is identified [in the diaries] on a few occasions when a resident needs e.g. a shower seat. As Ms Campbell acknowledged in evidence, this is a normal housing officer duty in social housing.” In the Statement of Reasons the Tribunal said that “all social landlords …….. maintain premises in a manner appropriate for the needs of the tenants” (pp.447-8).

 

10. (Contribution to supervision of partnership)

 

The First-tier Tribunal discounted this on the ground that it was “not support to the tenant, but part of the contractual obligation to the County Council”

 

7. (Assistance with Housing Benefit)

 

The First-tier Tribunal discounted this on the ground that the vast majority of landlords, private or social, will provide some assistance out of self interest. Further, it found that in 2½ years Ms Campbell had assisted with two HB claims, and that the assistance had been confined to landlord related areas. The rest of the claim forms were completed by the County Council’s appointeeship unit. Renaissance did not assist with any other type of benefit claim.

 

The First-tier Tribunal considered that that then left three items “which potentially amount to additional service”, namely items 3, 4 and 9, which it dealt with as follows.

 

9. (General Counselling and Support)

 

 The Tribunal found that ““Befriending” and “general counselling” functions are not ones which could be discharged under the current structure, where Ms Campbell is available on the phone one day a week, and face to face to such tenants as are around when she makes her weekly visit to each of the 8 properties on the other day of the week for which she is employed.” It further found that “whatever “general counselling” may entail, it is not something which either by training, or the time available to her, Ms Campbell is equipped to provide.”

 

It further stated that it would expect the care staff to deal with tensions between residents. Ms Campbell was there too little to make useful input, even if she had the training. Few diary entries relate to any level of social interaction with the tenants.  

 

It further stated that all social landlords assist claimants with applications for community care grants where appropriate (p.448).

 

3 (Advising on use of domestic equipment) and 4 (assisting with minor repairs to users’ own equipment)

 

The Tribunal found as follows. These categories do go beyond what an ordinary landlord would provide. However, Ms Campbell was unable to say how often this happened. On basis of her weekly diaries, to the extent that it happened, it was de minimis. Ms Campbell’s diaries provided a more accurate record of what happened than the County Council’s monitoring report.  

 

Many of the examples at p.381 (the second monitoring report) were standard contractual matters – annual checks of landlord owned equipment, and supply of a new carpet and redecoration of a bedroom before a new tenant moved in is not unusual where furnished accommodation is rented. Ms Campbell did arrange for contractors to recedorate for a tenant at the tenant’s expense.

 

Support staff are available to do this, and there is little that the housing officer can do in the time available. It could be several weeks before tenants have face to face contact with the housing officer.

 

25. The 2009 Tribunal also made the following more general findings:

 

(1) That the County Council monitoring reports showed that there had been considerable delay by Renaissance in carrying out repairs. Given that the rent for the Claimant’s accommodation includes furniture, white goods and maintenance and servicing of common parts, the evidence from the County Council’s own monitoring report suggests Renaissance fell far short of the standard identified in CH/150/2007 that the repairing obligation was more onerous than normal and that the landlord fulfilled unusually onerous repair and maintenance obligations.

 

(2) The County Council monitoring reports note that the Housing officer needs training in communication with users.

 

(3) The weekly diaries deal almost exclusively with disrepair.

 

(4) Ms Campbell’s role may mean that repairs are reported earlier, and better chased up, than if simply reported to Renaissance’s headquarters in Newcastle.

 

The scope of the hearing before me

26. At the time of giving permission to appeal to the Upper Tribunal and directing the oral hearing of the appeal I further directed as follows:

“3. The parties should prepare for the hearing on the footing that, if I hold the First-tier Tribunal’s decision to have been wrong in law, I may re-make the First-tier Tribunal’s decision on the basis of the findings of fact which it made and such additional findings as are warranted by the evidence which was before the First-tier Tribunal (including the Record of the oral evidence). The parties should therefore be prepared to make submissions as to what decision the First-tier Tribunal would or should have made, had it not erred in law in the respects contended for on behalf of the Appellant. (For the avoidance of doubt, no additional evidence is to be admitted at the hearing).

 

4. Within one month from the date of issue of this Direction the Appellant is to lodge a written submission listing the categories of assistance provided [to] the Appellant which it is contended that the First-tier Tribunal wrongly failed to treat as “support”. The submission must state, in relation to each category, (i) precisely how the First-tier Tribunal erred in law in relation to it (with appropriate references to the Decision Notice and Statement of Reasons) (ii) what findings of fact the First-tier Tribunal actually made in relation to the amount of such assistance actually provided and (iii) whether (if no or inadequate findings were made) it is contended that the First-tier Tribunal ought to have found that significant support was provided, and by reference to what evidence. The page numbers of the relevant evidence should be referred to. The submission may refer to any other matters relied on in support of the appeal.”

 

27. Mr Key made a written submission pursuant to para. 4 of those Directions, to which Miss Meacher made a submission in reply. In accordance with the Directions, no further evidence was adduced before me. At the conclusion of the hearing both parties requested that, if I were to set aside the First-tier Tribunal’s decision as wrong in law, I should if possible, rather than remitting the matter for redetermination by a differently constituted First-tier Tribunal,  make any necessary further findings of fact and re-make the First-tier Tribunal’s decision.

The grounds of appeal

28. I proceed to consider the grounds of appeal advanced by Mr Key on behalf of the Claimant.

 

(i) Categories 5, 6 and 8 wrongly discounted?

29. First, it is contended that the First-tier Tribunal erred in law in discounting categories 5, 6 and 8 of the assistance claimed by Renaissance to be provided to tenants. The ground on which the Tribunal discounted this assistance was its finding that such assistance is routinely provided by social landlords (and so amounts to no more than ordinary property management) Mr Key contends that that finding was not based on evidence, but was simply stated by the First-tier Tribunal as its opinion. Mr Key contends that in fact a social landlord would not let general needs housing to tenants with significant learning or mental health difficulties requiring the level of social services provision that these tenants required, and that tenants of general needs housing would not therefore have a need for support in these categories. He says that an ordinary social landlord would only let accommodation to a tenant such as the Claimant if the accommodation were within its supported housing stock.

 

30. The general submissions by Miss Meacher on behalf of the City Council in relation to that ground of appeal were that on the evidence before it the Tribunal was entitled to find (i) that assistance in these categories would be provided by a social landlord and (ii) that in any event the support provided was no more than de minimis.

 

31. In order to decide whether the First-tier Tribunal went wrong in law in this respect, it is necessary first to examine whether there was evidence before the First-tier Tribunal which entitled it to find that social landlords generally would provide assistance of this nature.

 

32. The First-tier Tribunal based its finding that social landlords generally would do so on the oral evidence given by Ms Campbell. There is, however, a potentially relevant passage in the recorded evidence given by Ms Nursey:

 

“Q: (from Mr Ennals): List of contracted tasks – why not contract with care provider to do these tasks?

 

A: Have tried that, but housing provider has better level of skills. Carers may lack confidence – e.g. neighbour issues, chasing up contractors etc. Carers can do it, but this works better. Do the same with the three big social housing providers. They also have dedicated housing officers, though they are not exempt accommodation providers.”

 

33. It is, in my judgment, too unclear to precisely which tasks this evidence of Ms Nursey related to regard it as evidence capable of supporting the First-tier Tribunal’s findings. It does not appear to have been expressly relied on by the First-tier Tribunal as such, and neither did Miss Meacher rely upon it in her written or oral submissions.

 

34. As regards the evidence of Ms Campbell, I take each of the three categories in turn.

 

Category 5 (Arranging adaptations)

35. It is relevant to note that Ms Campbell stated that she became the support officer in about 2006 [in fact probably 2007], and had in the past worked in general housing for two social landlords - “not supported”. The following passage occurs during her cross-examination:

 

“Q: Is what is diff between what Ren does now and what she did before in terms of DDA?

 

A: Would not visit as often or meet as often with tenants. Both in terms of frequency and in intensity, pro-activity, very different.

 

Would always have to consider needs of tenants in terms of DDA whether for social landlord or Renaissance.

 

Not all adaptations are paid for by Ren – larger ones would involve   Disability Grant. Lots of adaptations under £500 so no grant. Any landlord would put in extra rails etc as required by DDA.”

 

36. The specific submissions by Miss Meacher, in her written submission, in relation to adaptations are as follows:

 

“A housing officer employed by a social landlord in general needs housing, who finds a tenant in need of adaptations because of a disability, such as the installation of grab rails or the installation of a shower seat, will have an obligation to assist the landlord with making reasonable adjustments to the physical features of the property in order to comply with s.35 and s.36 of the Equality Act 2010 (previously the Disability Discrimination Act 1995). This would include the adaptations arranged by Ms Campbell and carried out by the landlord in this case (as disclosed by the weekly diaries: see paragraph 9 of the Appellant’s submissions).

 

The Tribunal was entitled to take judicial notice of the fact that social landlords will be required by law to make adaptations if arising as a result of the tenant’s disability and to conclude that the activities of this particular landlord have not gone beyond that of ordinary housing management by a social landlord. Ms Campbell accepted during oral evidence that a landlord would install extra rails etc., where required by the Disability Discrimination Act 1995.

 

……………………………………………….

 

A housing officer may also assist a tenant with an application for a Disabled Facilities Grant (DFG) if that would enable the tenant to remain in their current accommodation rather than transfer to alternative accommodation.”

 

37. In order to assess these submissions it is necessary in turn to examine the nature and number of the adaptations which the evidence showed that Renaissance had in fact assisted with. Para. 9 of Mr Key’s written submission to me referred to the evidence in relation to adaptations which he relied upon. The adaptations (or proposed adaptations) evidenced are as follows (where there is more than one reference to what is in effect the same item I have combined them).

 

·       Arranged for tenant to have her own light fitted at no. 31 (p.183)

·       Adaptations to bathroom, including handrail, “bathing equipment”, new fixed w.c. seat. (at no. 10). This involved an OT referral and application for a DFG, and then a further OT referral (pp.183, 204, 206, 207, 210, 213, 219, 225, 234)

·       Fixed seat in shower at no. 148 (pp. 186/7). There was a referral to an OT in respect of this (pp.188, 191;194;197)

·       Security light and lock on garage door at no. 15 F Road (due to concerns caused by a “prowler” in the garden)(231 and 234) [However, I consider that this is probably not an example of an adaptation to accommodate disability, but rather of security measures which would have been in the interests of the landlord, whatever the type of tenant, and so is not an example of “support”].

·       Additional kitchen cupboard which the tenants could reach was required at no. 148 (237, 239). [I consider that this may well not have gone beyond ordinary property management].

·       Additional external lighting due to fall of tenant on drive at no. 31 (240). Ms Campbell stated in evidence that this was due to uneven pathway, but would not have caused a non-disabled tenant a problem

·       Security light required owing to tenants at no. 148 starting to recycle rubbish (273); [Again, in my view probably an example of a measure which would have been desirable whatever the nature of the tenant, and so probably part of ordinary property management].

·       Rails to front door at no. 15 K Road (p.381)

·       Rails and a banister at no. 15 F Road (p.381)

·       Liasing with OT re en suite facility at no. 3 (the Claimant’s house) (381). It is unclear whether this is separate from the request for a separate unit for the Claimant at no. 3, referred to under “neighbour disputes” below, and from the reference in para. 10 of Ms Campbell’s witness statement to a request for an “extension or annex” to be built for the Claimant. It appears that this suggested work was not proceeded with, and that the Claimant subsequently moved to no. 15 F Road, her current address.

·       Kitchen extension was considered at no. 15 K Road. It was said that the existing kitchen was very small, making it difficult to involve the tenants in any aspect of cooking/food preparation. An OT and psychiatric assessment were requested. (152, 235, 245, 382)

·       Adaptations to bathroom at no. 148 (381)

·       ? steps at no. 15 F Road (381)

·       Changed type of Claimant’s bedroom door lock and put buzzer at bottom of stairs (p.411)

 

38. The submission by Miss Meacher appears substantially to overstate the landlord’s obligations under the equality legislation. Surprisingly, neither side took me to the legislation, although a copy of certain of the provisions of the 1995 Act were in the papers before the Tribunal. I have examined the 2010 Act provisions since the hearing. My reading of the position under the provisions of the Equality Act 2010 which are in force (which I take to be the same as that formerly obtaining under the 1995 Act) is as follows. In relation to the premises let to a tenant the landlord is under a duty to take reasonable steps to provide “auxiliary aids” where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to the enjoyment of the premises or the use of a benefit or facility, entitlement to which arises as a result of the letting. (See para. 2 of Schedule 4 to, and s.20 of, the 2010 Act). By para. 2(8) of Schedule 4 “it is never reasonable for A to have to take a step which would involve the removal or alteration of a physical feature.” The combined effect of para. 2(9) of Schedule 4, and reg. 8 of the Equality Act 2010 (Disability) Regulations 2010 appears to be that the following are to be treated (i) as auxiliary aids and (ii) as not being the alteration of a physical feature:

 

(a) the removal, replacement or provision of any furniture, furnishings materials, equipment and other chattels (unless they would become a fixture when installed);

 

(b) the replacement or provision of signs or notices;

 

(c) the replacement of any taps or door handles;

 

(d) the replacement, provision, or adaptation of any door bell, or any door or entry system;

 

(e) changes to the colour of any surface.

 

39. Para. 4 of Schedule 4 contains some much more extensive duties in relation to “common parts”, which do involve altering physical features, but as I understand it they are not yet in force (and there were no equivalent provisions enacted, let alone in force, at the time material to this decision).

 

40. Given that the requirement on a landlord, under the equality legislation, to make “reasonable adjustments”, appears to be limited (so far as material) to the provision of “auxiliary aids”, as defined, I am very doubtful whether any of the works referred to in para. 37 above could have been required under the Disability Discrimination Act 1995. The First-tier Tribunal’s finding that adaptations to aid disability would be provided by any social landlord was based on Ms Campbell’s evidence, but that evidence was, as recorded, that “would always have to consider needs of tenants in terms of DDA whether for social landlord or Renaissance”, and there was a later specific reference to provision of a handrail as an example of something which could be required to be done by any landlord.

 

41. In my judgment the First-tier Tribunal did go wrong in law in concluding, on the evidence before it, that it should entirely discount heading 5 (arranging adaptations) on the ground that social landlords generally would do this. In particular, there was no sufficient evidence to entitle the First-tier Tribunal to conclude that a social landlord would generally make the arrangements for (including applying for a DFT) the more major of the works detailed in para. 37 above.

 

42. Further, even if there had been evidence before the First-tier Tribunal that social landlords generally would in fact do so, that would not in my judgment necessarily have required  the Tribunal to conclude that the provision of this facility could not constitute “support”. In R(H) 4/09 I said:

 

“25. It is implicit in the approaches adopted by all parties that the word “support” involves the landlord doing something more than or different from the exercise of its ordinary property management functions. That must in my judgment be right. A landlord does not in my judgment “provide ….. support” to a tenant ……. by doing what any prudent landlord would do in the management of its property. …………. However, it becomes apparent when one examines some of the activities of [the landlord in that case] which are said on its behalf to amount to support that there is in some cases room for debate whether they go beyond what the ordinary landlord would do in managing the property. In such cases it is in my judgment relevant, in determining whether support is provided to more than a minimal extent, to have regard to the extent to which the alleged support is allied to ordinary property management.”

 

43. In para. 71 of Chorley BC v IT [2009] UKUT 107 (AAC), in examining in detail the specific question whether the doing of repairs could constitute the provision of “support”, I said:

 

“(1) In general , activity by the landlord will not amount to support if it is comprised in ordinary housing management. In order to amount to support the landlord must be doing something which goes beyond ordinary housing management (see para. 25 of [R(H) 4/09]). For that purpose the most appropriate comparison would in my judgment in general be with what is involved in managing general needs social housing (i.e. housing provided by a registered social landlord for people who in general have no significant learning or other disability).

 

44. Even if a landlord who lets only to the type of tenant suitable for general needs social housing would arrange adaptations to accommodate a tenant’s disability, or an increase in disability, it does not in my view follow that a landlord who lets to a class of tenant who is more likely to need such adaptations is not providing “support” by carrying out, or arranging to carry out, such adaptations.

 

45. I turn, therefore, to Miss Meacher’s submission that the First-tier Tribunal also found that, if this category of assistance by the landlord amounted to “support”, it was in any event de minimis. However, I do not think that the Tribunal did so find. It discounted this category simply on the ground that it was not “support” because a social landlord letting general needs housing would provide it. As I have said, that ground in my judgment involved an error of law, as there was no sufficient evidence for making such a finding. 

 

46. Nor do I feel able to say that that error was not a material one, in the sense that the outcome would necessarily have been the same even if the Tribunal had not gone wrong in law. I am not satisfied that no reasonable tribunal could properly have found that such support as was provided in this respect, combined with such (very limited) support as the Tribunal found to be provided under other categories, was in total more than minimal.

 

47. It follows that in my judgment the First-tier Tribunal’s decision must be set aside as wrong in law. It is therefore perhaps not strictly necessary for me to consider the grounds of appeal any further, but I consider that I should do so because they may be material in considering whether I should re-make the Tribunal’s decision, and if so what the substituted decision should be.

 

 

Category 6 (Relationships and disputes with neighbours)

48. The following passage appears in the evidence of Ms Campbell:

 

“A. Would not say all support is related to property matters – helping to resolve conflict between tenants.

 

A. Has been asked to arbitrate with tenants – e.g. using equipment late at night – care provider would ask her to get involved. Care provider will be involved, but sometimes it helps to have someone outside the house to help resolve this.

 

A. In general houses has had to deal with tenancy disputes but this is between occupants of different dwellings, not within the dwelling.”

 

49. Miss Meacher’s written submission in relation to this aspect of this first ground of appeal is as follows:

 

“It is submitted that assisting with neighbour disputes is also part of ordinary housing management for a social landlord. All registered social landlords are required to have a policy for dealing with anti-social behaviour and neighbour disputes in accordance with s.12 of the Anti-social Behaviour Act 2003 which inserted s.218A of the Housing Act 1996. This will typically set out the various measures a landlord will consider when dealing with disputes between neighbours. The Tribunal did not need specific evidence in order to reach this conclusion; it could take judicial notice of the fact that such legislation is enacted, and the Government has provided guidance to all social landlords on this issue. Furthermore, Ms Campbell accepted in oral evidence that in her previous role as a housing officer in general needs housing she was responsible for dealing with disputes between tenants.

 

…………………………

 

As regards neighbour disputes, the weekly diary sheets only identify three such incidents; again, this is insufficient to justify a finding that the support provided by the landlord was more than de minimis.”

 

50. Para. 11 of Mr Key’s written submission, in response to my Direction, identified what were effectively 4 instances of support claimed to have been provided under this heading. One of these (p.162) related to “a neighbour dispute regarding a drain. They have met with the neighbour. The housing officer made sure that the drain was cleared and a fence repaired.” This appears to have been no more than ordinary property management, as the problem appears to have been a consequence of lack of maintenance and repair. Ms Campbell appears to have acknowledged in evidence that this sort of assistance would be a function of ordinary property management.

 

51. The other 3 claimed instances were: (i) Ms Campbell’s first diary report on 12 April 2007 noted that there was some tension between the Claimant and another resident in her house “which is historic” (p.167); on 14 June 2007 it was noted that the Claimant had been admitted to an assessment centre “or her own safety” (p.180); it was later noted that the other two tenants living in the Claimant’s house were upset with her (pp. 189-90); Ms Campbell spoke to OSL. Ms Campbell then reported that, after returning from a short stay in hospital, the Claimant was “unsettled”. A formal request was then made by OSL for a “separate unit” for the Claimant (p.201; 204); the Claimant then went in to hospital for a lengthy period; it appears that she eventually moved to no. 15 F Road (i.e. her current address). (ii) a lock was to be put on an upstairs bedroom door as one tenant was stealing (p.243). This is probably more properly regarded as a minor adaptation or maintenance work for which Renaissance may not strictly have been contractually liable (iii) Ms Campbell discussed with one tenant (Gill) a request to move to a different house, which would involve her cat being rehomed because one of the tenants in that house disliked cats. (p.265). This is more properly an example under the next Category.  

 

52. In my judgment the First-tier Tribunal probably did go wrong in law in finding that Ms Campbell had accepted that this category of assistance would generally be provided by social landlords. Ms Campbell appears to have sought in her oral evidence to draw a distinction between assistance with disputes with occupants of other property (which she implicitly accepted would be given by landlords generally), and assistance with difficulties as between Renaissance’s own tenants (which she appears to have contended would not be given).

 

53. However, I do not consider that this error can have had any effect on the outcome of the Tribunal’s decision. It would in my judgment plainly have made no difference to the Tribunal’s decision if it had accepted that Renaissance did provide support by being ready and willing to provide assistance in this respect, for the following reasons. First, whatever Ms Campbell may have said, it is obvious that assistance of this nature is very closely allied to ordinary property management. Any landlord arranging separate lettings of rooms in a house would need to have regard to allegations concerning challenging or anti-social type behaviour of other tenants, as it could give rise to breaches by the landlord of its duties to the tenants affected. Further, difficult behaviour by one tenant will affect the lettability of the other rooms in the house. It may be, however, that if the landlord is letting to tenants with disabilities which render them more likely to be guilty of, or unduly susceptible to, anti-social behaviour, thus rendering it substantially more likely that the landlord will feel the need to intervene, the readiness to intervene would qualify as “support”. There was, however, really no sufficient evidence before the Tribunal that this was the case.  Secondly, there was in effect only one clear example (i.e. that relating to the Claimant) over 2½ years in 8 houses housing 26 tenants, which Renaissance was able to identify under this head.

 

Category 8 (advising and assisting with move-on accommodation)

54. Paras. 11 and 12 of Mr Key’s written submission set out 4 such claimed instances: (i) the discussions relating to the Claimant  - see para. 51 above; (ii) the discussion relating to Gill (see also para. 51  above); (iii) Amber requested a change of room (p.262). (iv) a diary entry for 1 November 2007 recorded that “Genny now in supported respite care until a place can be found for her permanently. Other house members to visit her.” (p.228) It is very unclear what support or assistance Ms Campbell gave in relation to (iv). The first three of those instances relate to tenants moving or requesting to move to another room (in the same or a different house) owned by Renaissance. The fourth may have involved a move to accommodation elsewhere.

 

55. Again, in my judgment the First-tier Tribunal probably went wrong in law in stating that the evidence of Ms Campbell indicated this was a function of ordinary property management.

 

56. However, it is in my judgment again clear that that error can have made no difference to the outcome. It is obvious that any landlord would give some consideration to a request to move within the landlord’s own accommodation stock, particularly where separate tenancies of rooms in a house are concerned. Again, it may be that if the lettings are to tenants whose disabilities are such that requests of this nature are likely to be made with unusual frequency, or cause unusual difficulty, the assistance provided and available could be seen as going beyond ordinary property management and so count as “support”. However, the evidence did not in my judgment indicate that this was the case here. As regards assistance with a move elsewhere, Ms Nursey accepted in evidence that Renaissance’s tenants were “low turnover”. Mr Key identified possible assistance in only one such case.

 

(ii) Failing to have regard to intensity of support available

57. Mr Key’s second ground of appeal was that the First-tier Tribunal went wrong in law in failing to have regard to the level and intensity of the support which was available from Renaissance. He drew attention to what I said in R(H) 4/09 at para. 21:

 

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

 

58. Mr Key submitted that the fact that the landlord’s tenant support officer visited each property once a week, and was available on the telephone on one other day a week, meant that support was available to an extent such that no reasonable tribunal could properly have found that the landlord did not provide more than minimal support.

 

59. However, the First-tier Tribunal plainly had in mind Ms Campbell’s working hours, and what she did and was available to do during those hours. It made express and clear findings as to those matters. It also referred, in para. 5 of the Statement of Reasons, to the principle that “where the landlord support goes beyond ordinary property management, the making available of such support can amount to the relevant support in terms of the accommodation being exempt accommodation.” It seems to me, therefore, that the First-tier Tribunal correctly directed itself as to the law, and made findings as to the primary facts as regards Ms Campbell’s availability.

 

60. The only question in relation to this ground of appeal would then be whether it was permissible for the Tribunal to find, given the extent of Ms Campbell’s availability to and contact with the tenants, that less than minimal support was provided. It seems to me that it was permissible. I would draw attention to what I said in para. 24 of R(H) 4/09:

 

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

 

61. In the Statement of Reasons of the 2005 Tribunal’s decision the chairman had accepted (see para. 3 of Section G) that “most Landlords, even responsible social Landlords, do not visit tenants once a fortnight” and (para. 4 of Section G) that “even the best landlord would rarely pay the one hour per fortnight visits described.” The position at the time of the decision under appeal to the 2009 Tribunal was of course even stronger in this respect, in that the visits were by then weekly. However, the question must be judged with some reference to what Ms Campbell was in practice available to do, and in particular whether it extended beyond ordinary property management, and the likelihood of the tenants needing to call upon the services or finding them useful. That was in substance the question which the First-tier Tribunal sought to answer. I therefore do not accept that the First-tier Tribunal went wrong in law in the respects contended for in the second ground of appeal.

 

(iii) Error of law in relation to repairs and maintenance?

62. The third ground of appeal is that no reasonable tribunal could on the evidence before it as to the level of repair and maintenance undertaken by Renaissance have found that Renaissance did not provide more than minimal support. Mr Key refers to what I said in para. 71 of Chorley BC v IT(HB) [2009] UKUT 107 (AAC) as to the circumstances in which the carrying out of repair and maintenance type work may constitute “support”. His written submission argues (in para. 3) that

 

“the evidence established within the weekly visit reports identified at pages 166-277 is sufficient to establish that the level of input with regard to the provision of repairs and maintenance is significantly in excess of what would be provided by social landlords as ordinary housing management provision.”

 

63. However, I am unable to accept this ground of appeal. The position, as I stated it in para. 71 of the Chorley decision, requires an analysis of the extent to which compliance with the landlord’s repairing and maintenance obligations, and any additional work (going beyond its obligations) which the landlord is in practice prepared to do, is more onerous than would normally be undertaken by a landlord in respect of tenants without disability.

 

64. Neither the Claimant’s tenancy agreement nor a specimen form of agreement were in evidence. The 2005 Tribunal’s Statement of Reasons did, however, summarise the terms of the specimen assured tenancy agreement annexed to the 2000 Agreement. The tenancies are apparently furnished. The repair and maintenance obligations will have been very extensive. The only scope for the landlord to provide “support”, in respect of maintenance and repair work, would appear to be (i) in redecorating or arranging for redecoration of a tenant’s own room or (ii) undertaking repairs to a tenant’s own furniture or equipment (which was considered separately by the 2009 Tribunal under Category 4) or (iii) undertaking repairs which it would not be liable for because they amounted to wilful damage by the tenant or were minor matters which a tenant would be expected to remedy by virtue of his duty of tenant-like user.

 

65. I note again that my Direction dated 1 September 2011 had required details of “whether (if no or inadequate findings were made) it is contended that the First-tier Tribunal ought to have found that significant support was provided, and by reference to what evidence. The page numbers of the relevant evidence should be referred to.” However, para. 3 of Mr Key’s written submission, which I set out at para. 61 above, refers simply to the totality of the diary entries. It does not seek to make good, by reference to a list of specific instances, the submission that support was provided in connection with repair and maintenance. The same comment can be made in relation to the case as it was presented on behalf of the Claimant to the 2009 Tribunal. Although in oral submissions to the First-tier Tribunal Mr Ennals, who was then representing the Claimant, referred to para. 71 of the Chorley decision, and submitted that what Renaissance was prepared to do by way of repair and maintenance amounted to support, no list of specific examples was given. I have noted above one or two examples or maintenance/repair type works which may have gone beyond the landlord’s responsibility, but they appear to be isolated ones.

 

66. I cannot therefore hold that the Tribunal erred in law in relation to repairs and maintenance, nor am I able, in re-making the First-tier Tribunal’s decision, to find that significant levels of “support” were provided or available to the Claimant in this respect.

 

67. In so far as Mr Key relies on the frequency of the visits made by Ms Campbell, and the extent to which she was available to assist tenants, the point overlaps the second ground of appeal. The 2009 Tribunal’s approach was to look at what Ms Campbell was available to do. It found that the diary entries “almost exclusively deal with items of disrepair”. It did not consider that visiting the premises on a much more frequent basis than a landlord would ordinarily do amounted to support unless and to the extent that the visits were for the purpose of providing something above and beyond ordinary housing management, which mere repair and maintenance is not. It was in my judgment entitled to reach that conclusion.

 

The First-tier Tribunal’s decision re-made

68. I accept the invitation of both parties to re-make the 2009 Tribunal’s decision, on the evidence which was before it, rather than to remit the matter for redetermination by a fresh First-tier Tribunal.

 

69. I have noted that there is very little evidence as to the precise nature or extent of the disability from which either the Claimant or the other tenants suffer. Nor is there any evidence as to the level of support which the County Council is required to provide to the Claimant or the other tenants, beyond the evidence that all the houses have a support worker who stays overnight, and that the Claimant (unlike, it seems, some of the other tenants) has a 24 hour support package. Evidence as to these matters is plainly of potential relevance in determining whether the assistance which Renaissance claims to provide is in practice of any significant benefit to the Claimant or the other tenants. I have, however, decided that it is appropriate to make my decision without requiring further evidence as to those matters. Similarly, I do not find it necessary to have any further information as to the precise terms of the form of tenancy agreement.

 

70. As regards the meaning of “provides the claimant with support” in the definition of “exempt accommodation”, I refer again to and incorporate in this decision Section C of my decision in R(H) 4/09.

 

71. To recap, the application for supersession of the Claimant’s housing benefit award was made on 30 March 2007, and the City Council’s decision refusing that application was made on 30 October 2007. The period directly in issue before me is therefore the period between those two dates. That is a period of only some 7 months which began at around the same time as the new regime under the 2007 Agreement. The question strictly before me is therefore whether support was “provided” during that time. As noted above, the evidence as to the support in practice provided extends over a substantially longer and later period. In determining what support Renaissance “provided” at the material time, it is in my judgment relevant, on the facts of the present case, to take into account (as the First-tier Tribunal did) evidence relating to later periods. The later evidence helps to show what was in contemplation at the material time, and of what significance the claimed support was likely to be. There is no suggestion that there was any material change in the level of assistance provided by Renaissance after 30 October 2007.

 

72. As noted above, the only appeal before the First-tier Tribunal was that by the Claimant. The question before the First-tier Tribunal was therefore whether the Claimant’s accommodation was “exempt accommodation” – i.e. whether Renaissance provided the Claimant with support. In determining that, however, it is plainly relevant to examine the nature and level of assistance which has been available to other tenants in a similar position (as indeed the First-tier Tribunal did).

 

73. In re-making the First-tier Tribunal’s decision I propose to adopt the First-tier Tribunal’s findings of fact, save in relation to those Categories of assistance (i.e. Categories 5, 6 and 8) where I have decided that its approach involved an error of law. In relation to those categories I have made more detailed findings of fact in paragraphs 37, 51 and 54-6 above.

 

74. The upshot is that, despite the significant amount of time which the housing officer spends dealing with these 8 properties and 26 tenants, some “support” has been provided only under Categories 3, 4 and 5, and possibly 6 and 8. The 2009 Tribunal found that the support under Categories 3 and 4 was minimal. I have found that such additional support as was provided under Categories 6 and 8 could not have altered the outcome. In addition, there has been the occasional item of maintenance going beyond Renaissance’s strict obligations under the tenancy, and which does not strictly appear to fall within any of the Categories.

 

75. As regards Category 5 (assistance with adaptations), there appear to have been some 10 to 15 instances. Some of these were very small items, such as handrails. Some were more major. I take into account that the more major items, and indeed even the minor ones, are likely to have required a significant number of actions on the part of Ms Campbell. It will have been necessary for her to understand what is needed, to liaise with the OT in some cases, to assist with the DFG where applicable, perhaps to liaise with others in Renaissance, to arrange for the work to be carried out, and to check its progress. I must also bear in mind, however, that these items were in respect of 26 tenants, in 8 houses, over a period of some 2½ years. I also bear in mind that Category 5 is closely allied to property management, in particular because Renaissance would in any event have had to be involved at least to the extent of giving consent for the work to be done, which would of course involve understanding the nature of and reasons for the work, and to the extent of checking that the work had been carried out to its satisfaction. In addition, it would generally be in a landlord’s own interest to assist with an application for a DFG in that an improvement to its property could result from a successful application.

 

76. The only concrete examples of assistance actually provided to the Claimant herself which may have involved some “support” appear to be (i) the discussions and investigation in relation to tensions between her and the other occupants, and the possible provision of a separate annex, which appear to have resulted in a move to a different house (paras. 37 and 51 above) (ii) the change of the type of lock on her bedroom door, and the installation of a buzzer at the bottom of the stairs (para. 37 above). I have doubted, however, whether (i) went beyond ordinary housing management, and the buzzer may in any event have been an “auxiliary aid” which was required to be provided under the Disability Discrimination Act 1995.

 

77. Looking at the matter overall, and taking into account the support provided and available to both the Claimant herself and the other tenants, I am unable to find that Renaissance was providing support to the Claimant to more than a minimal extent. I therefore hold that the Claimant’s accommodation was not exempt accommodation.

 

78. I am very conscious, of course, that I reached the opposite conclusion in Chorley BC v IT (HB) [2009] UKUT 107 (AAC) and CH/4432/2006, in both of which I also substituted my own decision for that of the First-tier Tribunal. It could be argued that the landlords in these types of case are all offering much the same type of service. The tenants all have very substantial support from elsewhere in connection with day to day living, and there is a limit to what support, going beyond ordinary housing management, even a very supportive landlord can in practice provide. Reliance is always placed on broadly the same categories. It can be argued that differences in the outcome do not reflect any genuine difference in how supportive the landlord is prepared to be, but rather differences in (i) the efficiency with which the landlord has marshalled evidence in relation to matters such as the extent to which it has carried out repair and maintenance, and adaptations, which it was not (or would not but for the tenant’s disability have been) bound to carry out and (ii) what the particular tenants have happened to need in those respects in the period for which evidence is available. It can be argued that the outcome should really be the same in all such cases.

 

79. I think that there is much force in those points. Apart from anything else, it would obviously be unsatisfactory if a tenant’s accommodation were capable of moving in and out of the “exempt accommodation” definition in accordance with the extent to which the available support was actually required over different periods of time. But if the results are unsatisfactory, that seems to me to be a consequence of the need to decide whether “support” is “provided” to more than a minimal extent. It cannot in my judgment be enough that the landlord is prepared to provide the support – i.e that it is available to the tenant - unless there is a real prospect that the tenant will need it on something more than a very occasional basis. I find it difficult to answer that question without having close regard to what the landlord has actually done. It is unfortunately inherent in such a test that some landlords may just about scrape over the line (as in the two cases which I referred to above), while others will not do so.

 

 

 

 

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

15 February 2012