Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/1940/2012

ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision:  My decision is to confirm the decision of the tribunal dismissing the claimant’s appeal against the decision of the First Respondent authority that the claimant was not entitled to housing benefit in respect of an additional bedroom under Regulation 13D of the Housing Benefit Regulations 2006, as amended by regulation 2(6) of the Housing Benefit (Amendment) Regulations 2010.

REASONS FOR DECISION

1. This is in form a reference to the Upper Tribunal under section 9 of the Tribunals, Courts and Enforcement Act 2007, although as I indicated in my directions of 6 July 2012 it should in my view have come to the Upper Tribunal as an appeal.  The difference is not important in this case because the relevant facts are not in dispute, but in other cases the First-tier Tribunal should bear in mind that the Upper Tribunal has no power on a reference to remit the case for re-determination by the First-tier and must therefore re-decide the case itself under section 9(7) of the 2007 Act. 

2. The claimant is one of three people with learning difficulties who live in a house owned by two directors of a limited company which provides care for the residents of the home.  The house has a bedroom for each resident, a shared living room and kitchen and two bathrooms, one of which is shared; together with an extra room which is the subject of this appeal.

3. The claimant is in receipt of middle rate care component of disability living allowance and, since there is nobody who receives carer’s allowance for looking after her, she qualified for the severe disability premium and therefore for housing benefit at the single bedroom rate in accordance with the size criteria in Regulation 13D(3) of the Housing Benefit Regulations 2006.  Following a claim made on 10 February 2011, an award of housing benefit was made on that basis on 15 March 2011.

4.  Regulation 13D of the 2006 Regulations was amended with effect from 1 April 2011 by the Housing Benefit (Amendment) Regulations 2010 so as to confer entitlement to:

“one additional bedroom in any case where the claimant or the claimant’s partner is a person who requires overnight care (or in any case where both of them are).”

On 16 April 2011 the administrator of the company providing care at the home wrote to the respondent housing authority enclosing a letter from a social worker stating that the claimant required support during the night in order to remain safe and so as not to cause substantial danger to herself or others and to allow her to maintain a tenancy in her own right. The letter added that that support was provided by non resident carers.

5. In response to the letter, one of the authority’s officers visited the home and took a statement from a support worker, as follows:

“I confirm that there is a fourth room for support workers to work through the night.  One person works through the night.  There is no bed in the office as we do not have support workers sleeping at the property anymore.  We operate a ‘wakeful’ system.  Normal hours are 10 pm to 9.30 am for staff who work during the night.  General duties include washing, ironing and cleaning and generally looking after the residents.  There are three bedrooms in the property.”

In her record of the visit the officer confirmed that the additional room had a table and a chair, but no bed or other facility for sleeping.

6. On 24 June 2011 the authority maintained its decision to allow only the single bedroom rate of housing benefit, on the basis that the extra room was an office and not a bedroom, and that the home’s carers did not sleep there while on duty.  On 2 July 2011 the company’s administrator, acting as the claimant’s appointee, appealed against the decision on the ground that it was illogical that a person whose night time care needs could be met by a carer who was asleep in another bedroom qualified for an additional bedroom under the new size criteria, whereas a person with greater care needs who needed a carer to be awake throughout the night did not qualify.  In a letter dated 7 July 2011 the authority maintained its original decision and following a further letter from the company administrator on 11 July 2011 the appeal proceeded to a hearing on 26 January 2012.  The tribunal judge dismissed the appeal on the basis that the additional bedroom rate was only payable in respect of a room which was in fact a bedroom, expressing the view that the draftsman of the provision had overlooked the possibility that an overnight carer who did not sleep while on duty might occupy a room which was not a bedroom.

7. On 27 April the company administrator applied for permission to appeal, on the claimant’s behalf, stating that the appeal was the lead case of three.  The letter continued:

“I believe that an error of judgement has occurred when the law has originally been written pertaining to regulation 13D, I believe it has been overlooked that an overnight carer may not sleep at all whilst on duty at night, but could in fact be working a night shift.

The three appellants live in a shared house, where a wakeful system is in place.  This is due to the high needs of two of them.  These two people have been assessed by social services as requiring a staff member to be awake during the night due to their individual health conditions.  The third person does not have the use of the wakeful as they have not been assessed as requiring this as this person’s needs are not as great at night as the other two people.  This person however, would be assessed as requiring a sleep-in staff member if the other people did not reside in the house.  Therefore if this person lived alone, or with other people who had also been assessed as requiring a sleep-in staff member as opposed to a wakeful, then this person would be entitled to the additional bedroom requirement as they satisfy all the other criteria required to award it.”

8. The argument on behalf of the claimant put forward by the company (which is effectively the appellant in this case) requires the word ‘bedroom’ in the amendment to the 2006 Regulations to be read as extending to any room occupied by a carer providing night time care to a recipient of housing benefit, or the partner of such a person, whether or not the room contains a bed or is used for sleeping in.  Such a departure from the plain and ordinary meaning of the word ‘bedroom’, if it were ever permissible, could only be justified if it was necessary to give effect to legislation implementing a provision of EU law, or to achieve compatibility with a right conferred by the European Convention on Human Rights.

9. The amendment to the 2006 regulations effected by the 2010 amendment regulations remedied the breach of Article 14 of the ECHR identified by the Court of Appeal in Burnip v Birmingham City Council and Secretary of State for Work and Pensions [2012] EWCA Civ 629 that the regulations in their previous form disproportionately disadvantaged severely disabled claimants because, unlike able-bodied claimants, they were not entitled to housing benefit to defray the cost of an extra bedroom for which there was an objective need.  The regulation in its amended form therefore makes provision for the cost of an additional bedroom which is used by one of a team of carers on a rota basis, or where one member of a team of staff on duty at night is asleep at any one time.

10. The situation in this case is quite different.  The night time care needs of this particular claimant are not entirely clear, since she receives middle rate care component which is presumably on the basis of day time care needs.  The other two residents of the home receive highest rate care component and must therefore be assumed to satisfy the night time care conditions of entitlement to disability living allowance, but it is not clear whether the entitlement of either or both of them is under paragraph (i) or (ii) of section 72(1)(c) of the Social Security and Contributions and Benefits Act 1992.

11. Whatever the care needs of the individual residents of the house may be, I consider it unsafe to assume in this case that there is a need for a carer to be awake throughout the night so that those needs can be met.  The statement made by the support worker to the housing officer who visited the home suggests that the night time care needs of the residents were met at one time by a support worker who slept in the house.  The room itself was described by the support worker as an ‘office’ and is  occupied by a support worker who carries out duties which are needed for the running of the home, but which are not directly connected with the night time care needs of the residents.  Even if those needs do in fact require a member of staff to be awake all night, I would not regard it as unreasonable for the carer to be in another room in the house when not actually looking after residents in their own bedrooms, and I consider that any benefit resulting from a ‘wakeful’ carer having their own room could not possibly justify one or more of the residents of the house being entitled to housing benefit for an additional room.

12. Although I therefore respectfully agree with the tribunal judge as to the outcome of the claimant’s appeal, I do not share his view that the limitation of the amendment to Regulation 13D of the 2006 Regulations to an additional ‘bedroom’ is in any way anomalous, and still less that it constitutes a breach of the claimant’s rights under the European Convention on Human Rights.  For those reasons my decision on the reference is as set out above.

E A L BANO

26 July 2013