Chorley BC v IT [2009] UKUT 107 (AAC) (12 June 2009)

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Cite as: [2010] AACR 2, [2009] UKUT 107 (AAC)

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Chorley BC v IT [2009] UKUT 107 (AAC) (12 June 2009)
Housing and council tax benefits
other

IN THE UPPER TRIBUNAL Appeal Nos. CH/150/2007

ADMINISTRATIVE APPEALS CHAMBER CH/151/2007

CH/154/2007

A. INTRODUCTION

These are appeals by two claimants (and the estate of one deceased claimant), both of whom are (or in the case of the deceased claimant was at the time of his death) tenants of Care Housing Association Limited ("CHA") in a property ("no 83") near Chorley, Lancashire. In each appeal the issue is whether the accommodation let to the claimant tenant was at the material time "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."

It is common ground that CHA is both a "housing association" and a "voluntary organisation" for the purposes of the above definition.

The Claimants each have a significant degree of learning disability, and in most cases also physical disability, such that they have been assessed as requiring 24 hour care, supervision and support to enable them to live as independently as reasonably possible in the accommodation. They each require a carer/support worker to be sleeping in the accommodation at night. No. 83 is a detached bungalow with five bedrooms. Each of the two living Claimants (Mr T and Mr B) has, and the deceased Claimant (Mr J) had until his death on 18 April 2006, a tenancy of one of the bedrooms, together with a right to use, in common with the other tenants, the communal accommodation. A fourth bedroom was initially occupied by Miss K, but she died before the appeals against the relevant housing benefit decisions were made, and therefore has at no stage been involved in these appeals. Following their deaths, tenancies of Mr J's room and Miss K's room were granted to two other persons, but the appeals against the housing benefit decisions in their cases were not made in time to be dealt with by the appeal tribunal at the same time as the appeals now before me. As I understand it, however, it is likely that my decisions will in effect determine their appeals. The fifth bedroom is occupied by a person providing overnight care, support and supervision.

No. 83 was purchased and adapted by CHA pursuant to an agreement with Lancashire County Council ("LCC") under which LCC has the right to nominate the tenants, and shoulders some of the financial risk involved in the scheme. The Claimants and Miss K were the first occupants, and the property was therefore purchased and adapted with the intention of providing accommodation for them specifically, in the first instance. Their tenancy agreements commenced with effect from 12 December 2005.

Care, support and supervision is provided to the tenants of no. 83 by care staff employed by Dawaking Care Ltd ("Dawaking"), who have been commissioned by LCC, the body which has statutory duties to provide accommodation, care and support for the Claimants. It is common ground that CHA does not itself (i.e. by its own employees) provide any of the necessary "care" or "supervision". However, it is contended on behalf of the Claimants that the definition of "exempt accommodation" is satisfied on one or more of three bases:

(i) that the housing related support which Dawaking provides is provided "on behalf of" CHA ("Issue 1");

(ii) that because LCC "commissioned" CHA to provide the accommodation and Dawaking to provide the care etc, (a) LCC (being a "non-metropolitan county council") provides the accommodation, and (b) the care etc. is provided on LCC'S behalf ("Issue 2");

(iii) that although Dawaking provides the care and supervision, and the bulk of the support, there is some housing related support which is provided by CHA itself (i.e. either by its own employees, or by a property repair company on its behalf).

The significance of the issue is in broad terms that substantially more housing benefit is likely to be payable by the local authority, Chorley Council ("the Council"), in respect of each claimant's tenancy if the 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 is 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 1 above.

Under the consolidation of the housing benefit legislation which took effect from 6 March 2006 (by coincidence the very day on which the Council made the decisions under appeal), 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(10) of Schedule 3 to those Regulations.

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, the amount of rent eligible for housing benefit unless there is suitable alternative accommodation available to the claimant and it is reasonable to expect the claimant to move to it.

The contractual rent payable to CHA at the material time by each of othe Claimants was £311.29 per week, but by decisions made on 6 March 2006 the Council, following assessments of the local reference rent by the rent officer in the sum of £42.50 per week, awarded only that sum by way of housing benefit. The sums at stake are therefore substantial – in excess of £250 per tenant per week. In addition, my decisions in these cases may be material to some or all of CHA's other tenants, and very possibly to tenants of other landlords who are in a similar position.

The three Claimants appealed against the Council's decisions, and on 12 September 2006 an appeal tribunal allowed the appeals, finding that Empower did itself provide "support" to more than a minimal extent. However, by an interim decision made on 1 December 2008 I set aside the tribunal's decision as wrong in law. Rather than remitting the cases to a fresh appeal tribunal for redetermination, I directed that there should be a hearing before me with a view to my making the necessary findings of fact and re-making the tribunals' decisions, in exercise of the powers in section 12(2)(b)(ii) and (4) of the Tribunals, Courts and Enforcement Act 2007.

That hearing took place on 13 March 2009 in Manchester. The Claimants were represented by Mr Simon Ennals, a solicitor practising in Sheffield in the field of welfare and community law under the name "Essential Rights Legal Practice". The Council was represented by Miss Rachel Perez, of counsel. The Claimants' legal representation was supplied by CHA, which clearly has a direct financial interest in the Claimants' appeals succeeding.

At the hearing oral evidence was given on behalf of the Claimants by Mrs Pamela Duxbury, CHA's finance director.

In this decision I refer to page numbers in the file made up by the Upper Tribunal Office in relation to Mr T's appeal, which was selected as the lead case for the purpose of the hearing, as [Mr T no. [ ]] . I refer to the Appendices to Mrs Duxbury statement by their Tab number in the bundle. I refer to pages in the typed transcript of evidence as [Tr [ ]].

For the avoidance of doubt, for the purpose of writing this decision I have also had before me the documents which were before the Tribunal in relation to the appeals by Mr B and Mr J. (i.e. those not selected as lead cases for the purpose of preparing a hearing bundle), and I have looked at those for the purpose of obtaining information on matters such as the nature of those claimants' disabilities, and relevant dates.

B. CARE HOUSING ASSOCIATION LIMITED

On the basis primarily of Mrs. Duxbury's witness statement, supplemented by her oral evidence and the statement of Mr Caine (CHA's development manager) at Tab B, I find the following facts in relation to CHA.

Mrs Duxbury qualified as a chartered accountant and worked in practice for 6 years, after which she moved into commerce and industry, where she has worked for the last 7 years. Her speciality in practice was within the not for profit sector, charities and industrial and provident societies.

CHA is a company limited by shares, whose objects preclude the distribution of any profit among the members. It was stated in evidence to the Tribunal that CHA had applied to be registered with the Housing Corporation, and that a decision was expected by Christmas 2006 [Mr T p. 245]. As I understand it CHA did not ever become so registered.

CHA was born out of an initial meeting in 2003 convened by Nicholas Brown, CHA's chief executive. He was then a development director for a large Manchester based registered social landlord (RSL). His experience was that many RSL's did not appear to have the desire or remit within their business plan to service the special needs sector and were generally focused and committed to developing their general needs housing.

The board members of CHA also include two psychiatric nurses, one also being a national development director for a UK charity for the disabled, an MD of a national health and safety company, a housing association consultant, a regional manager of a support provider and a property development specialist.

The ethos of CHA is to provide accessible, high quality, supported living homes for vulnerable people in the community, based on person centred planning in the spirit of the White Paper "Valuing People". CHA seeks to provide a happy and stable home environment and a home life for all its tenants.

CHA was incorporated in early 2003, and the first property was available for occupation by April 2004. Four more properties followed in fairly quick succession so that by October 2004 CHA had 5 properties and 18 tenants. The majority of those tenants were all resettled from a long stay hospital in East Lancashire as part of a resettlement strategy by LCC. A further two properties (one of them being no. 83) were developed in 2005, one in 2006 and one in 2007. CHA now has a total of 9 properties, housing 30 tenants at full occupancy. CHA's offices are in Leyland. One of the properties is in Rossendale, three in Burnley, one in Nelson, one (no. 83) in Chorley, two in Leyland and one in Waltonlydale. The furthest from CHA's office in Leyland is that in Nelson, which is about 20 miles away.[Tr 96-7].

CHA is run on a daily basis by an executive team of three of the board members – the Chairman, John Blackledge, the Chief Executive, Nicholas Brown, and Mrs Duxbury as finance director. In addition, in 2008 CHA recruited a development manager, Tony Caine, to join the executive team on a consultancy basis. Mrs Duxbury gives her time entirely without payment.

All of CHA's tenants receive support from specialist support providers, with the majority requiring 24 hour care and support. CHA concentrates on a narrow range of special needs clients as a deliberate way of ensuring resources and experience are concentrated on providing the best possible accommodation for these types of disability. CHA houses people with moderate to severe learning disabilities and mental health conditions, many of whom have associated physical and medical conditions requiring specialist adaptations to the properties which they make their homes.

CHA's services as a property provider have to date been commissioned exclusively by LCC Social Services Learning Disabilities Commissioners. This is to ensure congruence with local policy and that specific demand is met. CHA is directly commissioned by LCC to provide bespoke homes for service users.

LCC provides CHA with a description of the prospective tenants' needs, and an indication of what is required from the property. By liaising with all the health professionals that CHA has access to, CHA builds a profile surrounding the type of property and the specification which is required. This will include matters such as the type of property (e.g. whether it must be a bungalow), location (e.g. distance to shops etc), number of bedrooms, and special adaptations (e.g. ramps, wet rooms, hoists, wheelchair access).

After an intensive property search and initial filtering of properties, a shortlist is presented to LCC for initial review. It is often only when properties are actually viewed that more detailed requirements are identified.

Once a property has been identified and all prospective tenants and their advocates, occupational therapists (OTs), social workers and support providers are happy with the proposal, an interim "Agreement for Support Provision and Management" is signed by LCC and CHA. (For more details as to this, see Section C below).

The property is then purchased, and the works as specified and agreed by all the stakeholders will start. A significant amount of time is invested in the correct specification of the property in order to make sure that all the tenants' needs will be met. This process is very intensive and CHA adopts a consultative approach and listens to as many of the stakeholders' views as possible in order to try to deliver the best possible home for the tenants.

Throughout the construction programme prospective tenants and care providers are encouraged to visit the development and comment on the works, and to be involved in the choice of components such as kitchens, tiling, floor coverings and decorations. Requests for changes will, if practical, be incorporated.

Recently it has become CHA's practice to enter into a "service level agreement" with the main support provider, setting out their respective responsibilities in delivering support to the tenants. A draft of the agreement (prepared in September 2007) was before me. However, although Mrs Duxbury stated in evidence that the draft agreement reflected what CHA has throughout understood the respective responsibilities to be [Tr 19-20], it was not CHA's practice in 2005/6 to enter into such an agreement, and I do not therefore consider it helpful to refer to its very detailed terms.

C THE AGREEMENT FOR SUPPORT PROVISION AND MANAGEMENT

This is an agreement made between CHA and LCC which in effect set out the arrangements for the supported living scheme at no. 83. The only executed document of which a copy is before me is an Interim Agreement dated 4 July 2005. That was signed when no. 83 was agreed as the property to be purchased and developed for the purpose of the scheme. It has scheduled to it a much longer draft Agreement, which was required by the Interim Agreement to be entered into within 14 days of the later of (a) CHA serving written notice on LCC that the Property (i.e. no. 83) was ready for occupation and (b) LCC submitting details of a Support Provider to the reasonable satisfaction of CHA. It is clear that both those events had occurred by early December 2005, and the main Agreement ("the LCC/CHA Agreement") must therefore have come into effect. Its terms of are in my view of some importance.

It recites that (1) CHA was formed to provide housing for inter alia persons with special needs (2) LCC "is the body responsible through its Social Services Department for the provision of care and support for individuals [in Lancashire]" and (3):

"The intention of the parties in making this Agreement is to provide in the Property [i.e. no. 83] accommodation in a supportive environment for persons with special needs including but not necessarily limited to learning disabilities mental health needs physical disabilities sensory impairment and acquired brain injuries referred to [CHA] by [LCC] and in furtherance of the intention [CHA] will at the request of [LCC] obtain a Lease [later defined as "the 25 year lease under which [CHA] holds the Property"] of the Property ("the Scheme")".

Clause 2 provides that "[CHA] shall make the Property available for the purpose of the Scheme in accordance with the provisions of this Agreement."

By Clause 3 the terms of the Agreement are to be binding (subject to early termination in certain cases) for an initial period of 15 years, and thereafter from year to year.

Clause 4 contains provisions relating to an "early sale". LCC can, by giving notice to CHA stating that "LCC no longer requires the Property", request that CHA "seeks an early surrender of the Lease from the Reversioner." On such a surrender taking place the Agreement determines. On any sale of the Property at market value by the Reversioner within 10 years of the surrender LCC "hereby covenants to pay to the Reversioner the Net Sale Proceeds Shortfall PROVIDED THAT the Reversioner shall be entitled to retain any Net Sale Proceeds Surplus". Those expressions are defined as the amount by which the net sale proceeds are less than or (as the case may be) exceed "the Property Capital Cost". That is defined as "the Total Scheme Cost for the Property as set out in Schedule 4 less the amount of debt finance repaid by the Reversioner in relation to the Property." Schedule 4 was intended simply to contain a figure, but as the copy of the Agreement before me is only a draft, it was not completed. I assume that the cost was intended to be the total cost of purchasing and developing the Property.

Clause 5 is headed "Obligations of Parties". It is provided that CHA will be responsible for (most relevantly for present purposes):

arranging terms of occupation of the Property;

administering the terms of the tenancy agreements and undertaking its obligations thereunder;

"providing advice and assistance to [LCC] and tenants in relation to welfare benefits";

"maintaining the Property and decorating externally and internally (except for the tenants' own rooms) and whenever necessary cultivating cutting and maintaining the garden areas of the Property provided that [CHA] shall not be responsible for the cost of repairing any damage to the Property or furniture or equipment therein caused by a tenant or his visitors";

"undertaking physical adaptations and installations to the Property to meet tenants' needs (provided funds are available)";

maintaining fire safety equipment.

LCC is to be responsible for (again most relevantly for present purposes):

"providing all necessary support services … for all tenants of the Property";

maintaining a care plan for each tenant;

making reasonable arrangements to enable tenants to acquire social educational and daily living skills and to enable them to participate in the life of the community to their maximum potential;

assisting tenants in their daily tasks of shopping, cooking, washing, cleaning, routine household maintenance and social activities where necessary;

employing and providing suitably qualified and sufficient staff to ensure that any support agreed with the formal assessment approved by [LCC] can be given to tenants;

ensuring compliance in all respects with every statute (including derivative legislation etc) and any notice from any government department etc. "that relates to the Property the activities carried out on the Property or any substance or article on the Property";

ensuring that it has in place appropriate policies to comply fully with all health and safety requirements "which are relevant to the management and activities of the Property";

Ensuring that vacancies at the Property will be allocated and filled according to the tenant selection criteria set out in Schedule 3;

Interviewing assessing and proposing tenants as soon as is practicable after being notified of the date upon which a vacancy will arise;

consulting with [CHA] when undertaking the above tasks (save that of selecting tenants].

There is a proviso at the end of LCC's obligations as follows:

"Provided and it is hereby agreed that [LCC] shall be at liberty to appoint any other persons or organisation approved by [CHA] …..to act as its agent in connection with [the fulfilment of its obligations]."

There is provision for CHA to include in the rent a 10% surcharge for the purpose of building up a "voids surcharge fund". By Clause 11 LCC is required to pay to CHA the amount by which any loss of rent as a result of void periods exceeds the voids surcharge fund

By Clause 14:

"1 [LCC] shall be responsible for selecting suitable potential tenants and will inform [CHA] in writing of the identity of potential tenants selected in accordance with Schedule 3. [CHA] will (subject to its right of approval set out in Schedule 3) as soon as practicable conclude with such potential tenant a Tenancy Agreement in accordance with the terms of this Agreement

2. Where [LCC] has any obligation under this Agreement with regard to the selection and proposal of tenants it shall discharge such obligation reasonably and responsibly and in conjunction with the Association."

By Schedule 3 "[LCC] will propose for consideration by the Association tenants for vacancies at the Property being persons with special needs including but not necessarily limited to learning disabilities mental health needs physical disabilities sensory impairments and acquired brain injuries. These persons shall have the necessary social and personal skills to manage their own accommodation with the available support." It is further provided that "[CHA] will have the right to reject any nominee put forward by [LCC] if [CHA] considers that person not a suitable tenant for the Scheme."

D. DAWAKING CARE LIMITED

There is very little evidence in the papers about Dawaking. In particular, there is no copy of the contractual documentation between LCC and Dawaking. However, on the basis that one of LCC's obligations in the LCC/CHA Agreement was that of "providing all necessary support services ….for all the tenants of the Property" I find that there is an agreement between LCC and Dawaking which required Dawaking to provide all such care and support as would enable the Claimants to live reasonably safely and securely in the Property.

E. THE CLAIMANTS

I find the following facts in relation to the Claimants.

Mr B

Mr B is aged 58. He has a severe learning disability and very little speech. He requires a lot of support from staff to complete personal care and daily living tasks in the home. He has 1:1 support during the day. In the past he needed psychiatric support due to his aggressive outbursts. He lived with his parents until they died, when his brother and partner took over his care. However, they found it increasingly difficult to cope, and he was placed in a residential home in 2003. However, a new placement was sought for him after he suffered sexual abuse from other occupants. He does not access a day centre and therefore his support staff provide him with various day time activities within his home and community. The placement at no. 83 has been a success in that he has settled well and enjoys the garden. His aggressive outbursts have reduced drastically, which his social worker considers to be due to him being happy and settled in no. 83.

Mr T

Mr T is aged 37. He appears not to have a formal diagnosis of mental health problems, but he is said to have "autistic tendencies". He was unable to continue living with his mother because the situation there deteriorated to the extent where he had committed some serious physical assaults against her. He displays challenging behaviour when agitated, which is expressed by hitting out at other people. These episodes can occur when his routine is unavoidably changed, he is asked questions to which he is unable to give an answer or does not understand, or when his environment becomes noisy, or when there is a lack of predictability to his routines and rituals. He can verbalise his needs and staff feel that he understands what is said to him. He requires assistance and support with his personal care needs, bathing, including shaving, and needs help choosing clothes and tying shoe laces. He has 1:1 support from Dawaking during the day when he is at no. 83, but accesses a day service from 11am to 4 pm 5 days a week.

Mr J

Mr J was aged 59 at the date of his death in April 2006. He had a diagnosis of Down's syndrome. He was living in a residential home immediately prior to his move to no. 83. Owing to deteriorating health and mobility, he was provided with 1:1 support by Dawaking while living at no. 83.

F. THE TENANCY AGREEMENTS

The terms of the tenancy agreements, and in particular those relating to repair and maintenance, are of some importance.

Each of the Claimants entered into a separate tenancy agreement in CHA's standard form. (The papers contain complete copies only of those signed by Mr. B and Mr J. It is clear from the Claimants' "signatures" that they were unable to write properly. They are also signed by Mr Long, the house manager of no. 83, on behalf of the tenants).

It is stated on the front page that the tenancy is an assured weekly tenancy within the meaning of the Housing Act 1988, and is not an assured shorthold tenancy. The front page also contains the following:

"DESCRIPTION OF PROPERTY: Detached, Share Domestic Property, offering Supported Living Accommodation with 24 hour Support and Management. Car parking and garden areas

PERMITTED NUMBER OF OCCUPANTS: 4 Adults in individual rooms plus Support Staff as specified by [LCC]"

Although the agreement refers frequently to "the Premises", there is no definition of that term in the agreement. Although the standard form agreement does not expressly so state, it seems to me that it can only have taken effect as a grant to each tenant of a tenancy of his bedroom, with a right to use the shared accommodation (i.e. lounge, kitchen etc ) and common parts.

The rent payable was stated in each agreement to be £311.29 per week, comprised of "net rent" of £281.11 and "service charge" of £30.18.

By Clause 2.1 CHA was to "use its best endeavours to provide the Services itemised on the attached schedule (if applicable) for which the Tenant shall pay a service charge." Despite the fact that the rent is stated to include a service charge of £30.18 per week there is no schedule attached to the copies of the agreement signed by Mr B and Mr J (there being, as I have said, no complete copy in the papers of the agreement signed by or on behalf of Mr T). However, it is stated in the housing benefit claim forms (e.g. T 180-1) that the service charge was as to £3.39 in respect of gardening, as to £1.20 in respect of window cleaning and as to £25.59 in respect of "replacement of furnishings/maintenance." There is a box on the claim forms requiring the claimant to state whether any, and if so how much, of the rent includes a charge for "personal care and support", and the "no" box was ticked. Mrs Duxbury stated in evidence [Tr 68] that the £30.18 was in respect of gardening, replacement of tenant and communal furnishings, and "maintenance to the gas and electric".

By Clause 10 CHA's obligations include the following (CHA being defined in the agreement as "the Association"):

10.3 "To keep in good repair the structure and exterior of the Premises including …." There then follows a detailed list of items, many of which would obviously be included in any event. The perhaps less obvious ones include doors and door frames, door hinges and plasterwork. "Internal painting and decoration" is specifically excluded.

10.4 To keep in good repair and working order any installations provided by the Association for space heating, water heating and sanitation and for the supply of water, gas and electricity including basins, sinks, baths, toilets, flushing systems and waste pipes; electric wiring including sockets and switches, gas pipes and water pipes, water heaters, fireplaces, fitted fires and central heating installations fitted by the Association.

10.5 To carry out regular inspections of the gas appliances, pipes and flues by a qualified gas engineer who is Corgi registered.

10.6 "To take reasonable care to keep the common entrances, halls, stairways, lifts, passageways, rubbish chutes, and any other common parts, including their electric lighting, in reasonable repair and fit for use by the Tenant and other occupiers and visitors to the Premises."

10.7 To keep the exterior of the Premises and any other common parts in a good state of decoration and normally to decorate those areas once every four years.

By Clause 11 the tenant's obligations include the following:

11.7 "To keep the interior of their room in good and clean condition and to decorate all internal parts of the room as frequently as is necessary to keep them in good decorative order."

11.8 "Not to cause or allow to be caused any damage to the Premises or the Association's fixtures and fittings and common areas. If such damage is caused, the Association may enter the Premises to do the work required and the Tenant will be charged for the cost of this work."

11.10 "To be responsible for certain minor repairs including blocked sinks, sink plugs, fuses in and plugs to appliances, light bulbs and starters and locks where the lock is not defective."

11.13 "To replace immediately at the Tenant's expense any glass broken during the period of the Tenancy ………….."

By Clause 12.6 the tenant is given the right, with the consent of CHA, not to be unreasonably withheld, to make "improvements, alterations and additions" to the Premises. By Clause 12.7 CHA is to "establish a scheme under which the Tenant may be compensated for the costs of specified improvements."

G. ISSUE 1: DID DAWAKING PROVIDE SUPPORT ON BEHALF OF CHA?

Issue 1 (see paragraph 4 above) is whether the housing related support which Dawaking provides is provided "on behalf of" CHA. Mr Ennals accepted that on the footing that my decision in R(H) 2/07 is correct the answer to that question is "no". He did not seek to argue that I should not follow R(H) 2/07, but wished to keep open, so far as he could, the possibility of arguing that R(H) 2/07 was wrongly decided, in case it is subsequently so held in judicial review proceedings pending in the Administrative Court in a case (ref. CO/2778/2008) unrelated to these appeals. Those proceedings seek judicial review of a decision in which I refused permission to appeal to a Social Security Commissioner against a decision of an appeal tribunal which applied R(H) 2/07. The facts involved the same landlord (Rivendell Lake Housing Association Limited) as had been the landlord in R(H) 2/07, but different properties and tenants.

Permission to bring the judicial review proceedings in that case was granted by the Administrative Court about a month before the hearing of these appeals before me. The Upper Tribunal Office wrote to the parties' representatives, at my request, requesting them to indicate whether they wished to proceed with the hearing, or to have it adjourned pending the outcome of the judicial review proceedings. Both sides wished to proceed with the hearing. In those circumstances the only course of action which I can sensibly adopt is simply to follow R(H) 2/07 and to hold that the housing related support which Dawaking provides is not provided on behalf of CHA.

H. ISSUE 2: DID LCC PROVIDE THE ACCOMMODATION AT NO. 83?

Issue 2 is whether, for the purposes of the definition of "exempt accommodation", the Claimants' accommodation at no. 83 was "provided by" LCC. If it was, then the definition is satisfied because it is in my view clear that the care, support and supervision provided by Dawaking was provided "on behalf of" LCC, which commissioned it.

The facts which Mr Ennals particularly relies upon in arguing that the Claimants' accommodation was in substance "provided by" LCC are the following:

(1) LCC had a statutory duty to secure the provision of accommodation for the Claimants;

(2) With a view to performing that duty LCC approached CHA to find, purchase and (if necessary) adapt suitable accommodation;

(3) Under the LCC/CHA Agreement LCC (a) has the right to select the tenants and (b) underwrote the financial risks of the scheme to the extent of (i) being liable to CHA for the rent in respect of empty rooms and (ii) having to indemnify the reversioner against any capital loss in the event of LCC ceasing to require the property for the purposes of the scheme and the reversion being sold within 10 years.

It is clear from the terms of the LCC/CHA Agreement that CHA does not own the freehold, but has a 25 year lease, which Mrs Duxbury said included an option to renew [Tr 77]. No details of the other terms of that lease, or of the relationship between CHA and the freeholder, are in evidence. Mrs Duxbury's evidence is that the cost of purchasing and adapting no. 83 was financed by a mortgage (apparently on the freehold – see the definition of "Property Capital Cost" in the Agreement), repayable over a term of 18 years, and that one element (presumably the main element) of the rent payable by each tenant is calculated by reference to the cost of servicing that mortgage.

Miss Perez submits that the plain and ordinary meaning of the definition is that a body does not "provide" accommodation unless it is the landlord. She submits that the definition does not admit the possibility that more than one person or body can be the provider of accommodation: there can only be one provider, and on the facts of the present case that was clearly CHA, not LCC.

At a superficial level Mr Ennals' submission has some attractions. When LCC (by Mr Crabtree , the "Integrated Commissioning Manager" for Chorley and South Ribble) wrote to the Council on 15 February 2006 to explain the overall position [T64], he said:

"I commission both the support and the housing for the people that are my responsibility in this locality

I accept Mr Ennals' submission that this case is not directly covered by the reasoning of Mr Commissioner Pacey in CH/3900/2005, in which he set aside an appeal tribunal's decision which had been based on reasoning similar to that now put forward by Mr Ennals. I agree with Mr Ennals that there are significant differences between the facts of the two cases. It appears that in CH/3900/2005 the council had merely agreed with a care provider (Independence Homes) that the care provider would both provide care and also find accommodation for the claimant. The accommodation which was found belonged to and was let by a private individual. It does not appear from the decision what, if any, contractual relationship there was between the council and the landlord, but it certainly does not appear that the council requested the landlord to purchase or adapt the property, or that the council underwrote any of the financial risk in the way that the Council in the present case has done. For that reason I do not think that the facts of the present case are directly covered by Mr Pacey's conclusion, in para. 20 of CH/3900/2005:

"In my judgement "provided by" as used in regulation 10(6) will not reasonably suffer the wide interpretation adopted by the tribunal. It does not in my judgment include instructing, arranging or facilitating privately rented accommodation through a third party, as happened in the instant appeal. In this appeal it is not disputed that the local authority arranged for a third party to obtain accommodation for the claimant, a person with special needs, from a private landlord. I hold that that accommodation was not "provided" by the local authority and, accordingly, was not exempt accommodation within the ambit of regulation 10(6) of the 1995 Regulations."

I nevertheless reject Mr Ennals' submission that the Claimants' accommodation in the present case was provided by LCC. It is in my view important to have regard to the wording of paragraph 4(1) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006, in which the defined expression "exempt accommodation" occurs. The material part of para. 4(1) is as follows:

"Subject to the following provisions of this paragraph, the eligible rent of a person –

(a) ………………………

(b) who is liable to make payments in respect of a dwelling occupied by him as his home, which is exempt accommodation, shall be determined in accordance with …………………………."

The definition of "exempt accommodation" is in the context of a provision specifying how the amount of rent eligible for housing benefit is to be determined. In my judgment, given that context, and the reference in para. 4(1) to "the eligible rent of a person who is liable to make payments in respect of a dwelling …..which is exempt accommodation", the natural meaning of the definition is that accommodation is provided by the owner or other person (e.g. an intermediate landlord) who, but for the grant to the claimant of the tenancy or licence, would have the right to possession, and therefore the right to permit occupation of it, and to whom the obligation to pay rent or licence fee is owed. In my judgment the definition does not encompass persons who have played a part, however important, in the accommodation becoming available, but who have no proprietary interest in the accommodation and no entitlement to the rent.

I also think it material to take into account that, as noted by Mr Commissioner Pacey in para. 8 of CH/3900/2005, where he refers to the comments of the Social Security Advisory Committee in Command Paper 2920 on a draft of the predecessor of para. 4(1) of Schedule 3, the SSAC was concerned that "non profit making accommodation managed by housing associations and charities should be exempt from the proposed restriction [of rent eligible for housing benefit]." If the definition could be satisfied in a situation where the non-profit making body is not the landlord and recipient of the rent, but some other person who has played a substantial part in the accommodation becoming available, the possibility would exist that the unrestricted amount of housing benefit would be payable to a profit making body, contrary to the apparent intention of the legislation.

Even if accommodation can be "provided by" persons other than the landlord, LCC in any event did not in my judgment provide the accommodation in the present case. It has no proprietary interest in no. 83 or in the rent. It did not underwrite by any means the entire financial risk involved in the scheme. For example, it did not in the LCC/CHA Agreement agree to cover the rent in the event of the tenants being unable to pay (e.g. if housing benefit is unavailable or is restricted), but only in the event of voids. It is not entitled to all or any part of the capital profit in the event of a sale after the scheme has ceased to apply. Further, it does not have the sole right to determine who is to occupy in the event of a vacancy. Its right is to propose new tenants for consideration by CHA, which can reject a proposed tenant if it considers him unsuitable. It has no management powers.

I. ISSUE 3: DID CHA PROVIDE SUPPORT?

The third issue is whether at the material time CHA (either through its own employees or by another person acting on its behalf) provided support to the Claimants.

(a) The meaning of "provides the claimant with …….support".

I refer to and incorporate in this decision Section C of my decision in CH/779/2007 and others, the lengthy decision which I made on 28 July 2008 in the appeals by Golden Lane Housing Limited ("the Golden Lane case"). As regards paragraphs 27 and 28 of that decision, the position in the present appeals is that the period with which I am directly concerned is that from 12 December 2005 (the date of commencement of the tenancies) to 6 March 2006 (the date of the Council's decisions under appeal). That is a short period which began at the time when no. 83 was first occupied for the purpose of the supported living scheme. There is therefore no relevant past history to look at. The question is therefore in my judgment whether it was contemplated at the commencement of the tenancies that CHA would provide more than minimal support, either because CHA was contractually obliged to provide it, or because it intended to provide it. In determining what support CHA intended to provide, it is relevant to look at support subsequently provided or made available unless there is evidence that CHA had changed its practice (i.e. by seeking to increase the amount of support which it provided.).

(b) Does CHA provide support to the Claimants?

In her witness statement Mrs Duxbury sets out, under a number of headings, details of what support CHA contends has been given to the tenants of no. 83, and examples of support given to tenants of other properties. Miss Perez made her submissions by reference to a schedule, the recurring themes of which are that the various heads of alleged support are not support for any one or more of the following reasons: (i) not proved to have been provided; (ii) part of the setting up of the scheme (iii) no more than ordinary housing management; (iv) Dawaking could and would have done it if CHA had not; (v) support element was not more than de minimis. I propose to make findings as to the support said to have been actually provided to the tenants of no. 83, by reference (essentially) to Mrs Duxbury's headings.

(i) Repairs and maintenance

I make the following findings in relation to repair and maintenance work carried out by CHA.

(1) From about the middle of 2005 CHA subcontracted the carrying out of repairs and maintenance to Progress Property Services (PPS), which are part of the Progress Housing Group, an RSL situated in Leyland. Repairs and maintenance had previously been managed by the executive board on a daily basis, with an emergency out of hours call centre which had a bank of preferred contractors to refer to. According to the Progress Housing Group website:

"Our Property Services Division provides a 24 hour call out service across the North West for members of Progress Housing Group and private residents, and have won a number of external contracts.

We provide day-to-day responsive repairs, emergency repairs, voids works, gas servicing, electrical servicing, cyclical work, planned improvements, stock condition surveys, major refurbishment works, disabled adaptations and general private residence works.

In a typical year, our Contact Centre deals with over 65,000 telephone calls and raises 43,000 job tickets. We have an annual turnover of over £10 million, with approximately £2 million generated from external contracts alone.

(2) When a repair or maintenance problem arises at no. 83, the Dawaking staff therefore telephone PPS, who have authority to action any repair up to a level of about £250 without referring to CHA. [Tr 51]

(3) In order to reduce anxiety and stress for its tenants, CHA have agreed with PPS that certain repair items will be treated as more urgent than would normally be the case. In her statement Mrs Duxbury gives the example of a blocked toilet, where there is another usable toilet, which she says would normally be treated as an "urgent" repair (with a response time of 5 days), but which PPS have agreed to treat as an emergency case (with a response time of 24 hours). The reason given by Mrs Duxbury is that not to be able to use the toilet of their preference will often cause the tenant anxiety. She says (and I accept) that

"The majority of the urgent calls would be treated as emergency calls as they would cause too much distress to the majority of our tenants. It is very difficult for a person with learning difficulties to live in a home with an outstanding repair and can cause our autistic tenants particular distress. If the response times that have been quoted are unsatisfactory for our tenants' needs, they contact a member of the executive team who are then able to intervene and escalate the status of the job."

(4) The repairs/maintenance which CHA has arranged to carry out, either through PPS or directly with contractors, include items within the following categories, for which it is not or may not be liable under the tenancy agreements – i.e. (a) damage caused by the tenants, however wilfully, including broken glass (see Clauses 11.8 and 11.13 of the tenancy agreement) (b) "minor repairs" falling within Clause 11.10 of the tenancy agreement (c) redecoration of tenants' bedrooms (see Clause 11.7 of tenancy agreement) and (d) matters which would not be regarded as lack of repair in relation to persons without disability, but which could be problematic for the tenants with their particular disabilities (e.g. the uneven flagstones referred to below). CHA does not seek to recoup the cost of such repairs from the tenant [Flag C; Tr 56]; but as to that see para. 70(4) below.

(5) Specific items of repair/maintenance which have been carried out since the commencement of the tenancies of no. 83, and falling within the categories referred to in (4) above, include the following:

(a) flagstones at the rear of no. 83 were very slightly uneven, which posed a risk to Mr B as he shuffles when he walks. Instructions were given to lift and relay the flagstones (Duxbury statement p.7). I accept that the flagstones would not have been regarded as needing repair in relation to a tenancy granted to persons without disability.

(b) Mr T has broken windows about three times [Tr 49];

(c) Mr T has broken the front door by kicking it. It was replaced with a high specification reinforced door with side panels [Duxbury statement p.6; Tab K]. However, CHA has told Mr T's mother that if he breaks the front door again, she will have to pay for it. [Tr 57]

(d) Once every two months or so the toilet has become blocked, often because Mr T puts food down it [Tr 55]

(e) Radiators have had to be repaired repeatedly owing to leaks caused by Mr T repeatedly kicking them [Duxbury statement p.8 ("lots of repairs");Tab JK; Tab M ("often breaking windows or kicking the radiators"); Tr 56].

(f) CHA does carry out redecoration of tenants' bedrooms. [Tr 32].

(6) In order to minimise stress and anxiety to Mr T, CHA and PPS specially arranged for decoration works at no. 83 (which were carried out ahead of schedule owing to damage to the decorations caused by Mr T) to be carried out when he was not there (i.e. between the hours of 12 pm and 4 pm), which prolonged the decorators' contract, and made the works more expensive. No extra charge was made to the tenants for this. [Tab C; Tr 17-18].

(7) Mrs Duxbury's statement [p.6] and Mr Smith's letter at Tab F, contend that the fact that care staff are on site mean that the property is a place of work which means that the landlord, as a "responsible person" under the Regulatory Reform (Fire Safety) Order 2005, must provide, maintain and update fire safety equipment and procedures. Clause 5.1.11 of the LCC/CHA Agreement makes CHA responsible for "maintaining fire safety equipment", but Clause 5.2.7 requires LCC to ensure compliance with every statute and Clause 5.2.8 requires LCC to ensure that it has in place appropriate policies to comply fully with all health and safety requirements. I was not taken by Mr Ennals, in support of the contention that maintaining fire equipment etc amounts to "support", to the provisions of any of the relevant legislation. In my judgment CHA has not shown that it has any greater ongoing obligations in relation to fire safety than it would have in respect of general needs housing occupied in effect by a number of different households. Nor has it been established, with sufficient precision, exactly what CHA does in relation to fire safety. In my judgment CHA has therefore not established that it does anything in relation to fire safety which goes beyond ordinary property management.

The following evidence is also material to the question whether works carried out by CHA involved the provision of "support. I make my findings about it, in so far as necessary, later.

(1) In a letter from PPS [Tab F] the following is stated. On average PPS visits a social housing property 4 times a year with an average cost per job of £85, whereas "supported living type" properties are visited on average more than 10 times per annum with an average cost per job of £135. The letter then sets out a table showing the number of "jobs raised" in each year in respect of each of CHA's properties. If one takes 2006, 2007 and 2008, there were a total of 80 jobs for no. 83. That is not as many as for some of CHA's other properties on the list, but it is obviously far in excess of what PPS state to be the average of 10 jobs per annum for even supported living type properties.

(2) A number of reasons are suggested, in that letter and in Mrs Duxbury's statement [pp. 5-6], as to why the number of visits are higher in supported living type properties. First, that the tenants cause more damage. Secondly, that the presence of care staff mean that there are a larger number of people using the property, so that there is greater wear and tear. Thirdly, PPS say that "it is assumed that social housing tenants can carry out a number of repairs themselves such as blockages, changing light bulbs, renewing toilet seats, minor leaks, decorating and providing and maintaining boundaries between neighbours etc where supported living residents cannot." Fourthly, that there is a higher specification of equipment on the premises.

(3) Mrs Duxbury's evidence in her statement (p.6) was that "many of the visits to [no. 83] are as a result of tenant damage, in particular broken windows, blocked toilets and leaking radiators." Mr Smith of PPS says in the letter at Tab F that "from review of your calls many are for broken toilet seats, blocked toilets and general tenant damage." Grace Gregson (social worker) says in her letter at Tab C that Mr T "has caused a significant amount of damage to the property."

(4) Mrs. Duxbury's oral evidence was that in the present case the rent is set at a level which takes into account the fact that in practice CHA is going to carry out a greater amount of repairs and maintenance than would normally be expected in general needs housing. [Tr 69]. (It is not clear how far that evidence went; it is not clear that an attempt was made to anticipate, and allow in the rent, for the additional damage which the tenants might cause).

In the light of my above findings, and the additional evidence set out in para. 70 above, it is desirable to consider in a little more detail to what extent the arranging by (or on behalf of) the landlord of contactors to carry out repair and maintenance works, and/or the payment by the landlord of the cost of the works, can constitute the provision of support, within the meaning of the definition of exempt accommodation, for a tenant with disability. In my view the position is as follows.

(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 my decision in the Golden Lane case). For that purpose the most appropriate comparison would in my judgment in general be with the 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).

(2) Carrying out repairs and maintenance will therefore in general not amount to "support" if all that the landlord is doing is fulfilling its repairing obligations.

(3) If the tenancy agreement imposes unusually onerous repairing and maintenance obligations on the landlord (e.g. requiring the tenant's own room to be decorated by the landlord, or requiring the tenant's own equipment to be repaired), fulfilment of those obligations is capable of amounting to support. I do not see why the mere fact that the landlord is complying with an unusually onerous obligation which it elected, having regard to the tenants' disabilities, to undertake, means that compliance cannot be support. However, it has not been suggested that the terms of CHA's tenancy agreement in the present case, although it imposes extensive repairing obligations on the landlord, are in unusually onerous terms. Many of those obligations would be implied by the Landlord and Tenant Act 1985 in any event.

(4) If, owing to the nature of the tenant's disabilities, performance of the landlord's repairing obligations imposes a materially greater burden on the landlord than would otherwise be the case, performance of that greater burden may be capable of amounting to the provision of support.

(5) If the landlord voluntarily goes beyond its obligations (e.g. routinely repairs damage caused by the tenant; or redecorates the tenant's own room, or routinely carries out works in a manner designed specifically to take into account the tenant's disabilities), that is in my judgment capable of amounting to the provision of support.

(6) In my judgment the carrying out of repairs or maintenance is not prevented from being support merely because the landlord is compensated for it (whether by an ad hoc charge for the particular item of work, or by the rent having been set at a level which takes into account the probable greater burden on the landlord). As Mr Ennals rightly submitted, the fact that a person is paid for providing support does not mean that that person is not providing it. For example, Dawaking is in the present case paid for providing the housing related support which it does, but that does not mean that it is not providing support. Even if the landlord is compensated for the additional cost of carrying out the works, there is still potentially significant benefit to the tenant in the landlord carrying them out in that all that the tenant (if he is able) or (if not) the support provider has to do is to contact the landlord. He does not have to set about finding a particular contractor to do the work, or to follow matters up if it is carried out unsatisfactorily. Indeed, Miss Perez has not sought to argue that none of the repairs in the present case can amount to "support" because the rent was set at a level which took into account the probable cost of carrying them out. The fact that the landlord is compensated is, however, relevant to the extent that it means that the landlord cannot of course argue that it is providing support not only by arranging contractors, but also by paying for those contractors.

(7) The words "care, support or supervision" do not immediately bring to mind, as something obviously within them, the carrying out of repairs. That is in my judgment simply because the carrying out of repairs is normally no more than fulfilment by the landlord of its repairing obligations, and so does not go beyond ordinary housing management. If, however, the landlord is arranging for the carrying out repairs which clearly go beyond ordinary housing management, I do not see why that cannot amount to support. The word "support", in the context of the definition of exempt accommodation, in my judgment connotes the giving of advice and assistance to a claimant in coping with the practicalities of his life, and in particular his occupation of the property. I do not think that it is confined to counselling, advising, encouraging etc. the claimant. If that were so, it would mean, for example, that guidance and encouragement to a claimant who is capable, with that guidance and encouragement, of himself arranging for work to be carried out, would be support, but arranging to have the work carried out for a more seriously disabled claimant who could not himself take any part in those arrangements could not be support.

(8) In my judgment the support can consist not only of making the practical arrangements for the work to be done (arranging contractors etc.), but also, if the landlord pays for it, in having the work carried out.

(9) The fact that the local authority has engaged a care provider to provide 24 hour care and housing related support for the claimant does not in my judgment necessarily mean that there is no element of support in the landlord arranging for the work to be carried out. First, the effect of the arrangements between the council, the landlord and the care provider may be that the landlord, and not the care provider, is to take responsibility for arranging for the undertaking of certain works, going beyond ordinary property management. Secondly, even in a case where where the main support provider would be obliged, under its contract with the local authority, to arrange for the work to be done (assuming that the necessary funds were available) there is in my judgment still potentially a significant element of benefit to the tenant in the landlord doing so in that the landlord may have expertise, and connections with contractors, which the care provider does not have. In the present case PPS, as a very large organisation specialising in repair and maintenance, clearly has expertise and contacts which Dawaking is unlikely to have. It is in my judgment of some benefit to the tenant that works are arranged and supervised by PPS, rather than by the Dawaking staff.

(10) In determining whether the willingness of the landlord to carry out repair and maintenance works constitute support to a more than minimal extent, it is relevant to take into account, in particular, the likely nature, extent and frequency of those works, and the extent of support available to the claimant from elsewhere.

I do not accept that CHA has established that some 68 in total of the jobs carried out by PPS at no. 83 in the years 2006, 2007 and 2008 (i.e. the difference between the total of 80 actually carried out and the average total of about 12 (4 per annum) which PPS says that it would expect in general needs housing) are jobs which it would not have had to carry out pursuant to ordinary repairing obligations in general needs housing, and therefore qualify as "support". The striking feature of PPS's evidence in Tab F, if correct, is that the number of repairs carried out at no. 83 has been so much higher than what PPS say is the average even for "supported living" type properties. I accept Miss Perez' submission that in order for that sort of argument to be successfully pursued, the reasons for the much higher number of visits would have had to be analysed much more closely, by reference to the actual types of repair. CHA could presumably have supplied a complete list of the 80 repairs, with supporting evidence, but did not do so.

However, in my judgment CHA has established that it has arranged and paid for the carrying out at no. 83 of a significant number of repair and maintenance items which were necessitated by damage to the property caused by Mr T, or (in the case of the flagstones) would not have been regarded as needing repair in relation to a tenant without disability, or were minor items within Clause 11.10 of the tenancy agreement. In my judgment, taking a broad view, CHA has established that some 10 items per annum (mainly broken toilet seats, blocked toilets, broken windows and a broken door, leaking radiators, and redecoration consequent on the repairs to radiators) fell within those categories, the vast majority being due to damage by Mr T.

In so far as these items of repair fell within Clause 11.10 (minor repairs), I do not think that CHA was liable to repair them. Clause 11.10, which was of course included in each tenant's tenancy agreement, would seem to be no more than a statement of what would in any event be a tenant's duty to use the premises in a tenant-like manner, which is summarised in Hill & Redman on Landlord and Tenant as follows at para. 7380.113:

"In short, [the tenant] must do the little jobs about the place that a reasonable tenant would do. In addition, he must not damage the house wilfully or negligently."

This may have included, for example, the blocked toilets.

In so far as these items of repair did not fall within Clause 11.10, but were necessitated by damage caused by Mr T, I think that the strict position under the tenancy agreements is probably that CHA was liable, as against each of the other three tenants, to repair the damage (save in so far as the damage occurred within Mr T's room). Each of the tenants agrees in Clause 11.8 to not to cause damage, but it would seem that each tenant could require the shared premises to be repaired by CHA even if the damage was caused by one of the other tenants. The same would appear to apply to broken glass, because the obligation in Clause 11.13 to replace the glass appears to be placed solely on the tenant who broke the glass. However, in the case of general needs housing a landlord would clearly not have to put up with continually repairing damage wilfully caused by one of the tenants. He could determine that tenant's tenancy.

In my judgment the fact that CHA arranged (through PPS) for the carrying out repairs of the nature which I referred to in para. 73 above (some 10 per year as I have found) did constitute some support to all the tenants. They were either (i) repairs for which CHA was not liable under the tenancy agreement, or (ii) repairs of a nature which were necessitated by the disabilities of the tenants (and in particular Mr T's propensity to cause damage) and where the nature of the tenants' disabilities therefore resulted in the performance of CHA's repairing obligations being materially more onerous than it would otherwise have been.

I find that Dawaking would have been bound, under its contract with LCC to provide support to the tenants, to arrange (assuming that the tenants had the necessary funds) for those works to be carried out, at any rate in so far as CHA was not liable to do so. That can in my judgment be inferred from the fact that in the LCC/CHA Agreement it was provided that LCC would be responsible for providing all necessary support services for the tenants of no. 83, and to assist tenants in "routine household maintenance." However, that does not mean that CHA were not providing support by having the works carried out. First, in so far as CHA were bound to carry them out, it is no answer to say that Dawaking would (if funds were available) have arranged to do so if CHA had not. Secondly, there was in my judgment in any event some benefit to the tenants of no. 83 in CHA having instructed PPS to carry out these works in that that the tenants and Dawaking were able to benefit from PPS's expertise and contacts with contractors. These two points are in my judgment equally valid in relation to such support as was available to the tenants from their parents or family. I do not consider, however, that the evidence establishes that CHA provided support not only in arranging for these works to be carried out, but also in paying for them, owing to the uncertainty (see para. 70(4) above) as to how the rent was calculated.

I have also accepted Mrs Duxbury's evidence that, despite the absence of an obligation to do so, CHA does arrange for redecoration of tenants' bedrooms, which it is not required to do under the tenancy agreements. That in my view again constitutes some support.

There has in my judgment also been some support in the arranging of many repairs in an unusually short timescale in order to accommodate the special needs of the tenants (para 69(3) above) , and in arranging some decoration work at times when Mr T is not present, in order to reduce anxiety to him (para 69(6) above).

Although the support which I have identified might not be thought to amount to a great deal, when compared with that provided by Dawaking, I do not feel able to say that it should simply be ignored on the ground that it was minimal (or de minimis).

(ii) Adaptations

Any alterations to the property would of course require CHA's consent. By Clause 5.1.9 of the LCC/CHA Agreement CHA is responsible for "undertaking physical adaptations and installations to the Property to meet tenants' needs (provided funds are available)." That would in my judgment extend to adaptations becoming necessary as a result in changes in the tenants' needs, or which only become apparent after a tenant has been in residence for some time. It is therefore to be expected that CHA will, if funds are available, arrange for the carrying out of alterations reasonably required to assist the tenants to cope with their particular disabilities. Instances of alterations arranged by CHA at other properties are given in the letter from the care provider at those properties (Alternative Futures Group) at Tab HI. Given that CHA in effect agreed that it (and not Dawaking) would arrange for the carrying out of adaptations, it is in my judgment irrelevant that Dawaking might have been able to arrange them.

I find that the following adaptations have been arranged or considered by CHA at no. 83 since the grant of the tenancies:

(i) The flooring in Mr T's room was replaced for laminate flooring in order to lessen the practical consequences of his reflux problem. In my judgment this involved the giving of some support, even though it was not in fact wholly successful, as the floor then became too noisy. (Duxbury statement, p.7; Tr 58)

(ii) Additional sockets were installed in Mr S.K's room (one of the replacement tenants). (Duxbury statement, p. 8).

(iii) The possibility of knocking through the wall between the WC and bathroom, and adding a hoist and power assisted bath lift, in order to cope with Mr J's declining mobility, was considered, although Mr J died before this could be done. (Duxbury statement, p.8)

(iv) CHA looked at moving Mr T's radiator within his room, and also changing the radiator covers, in order to reduce the likelihood of damage (Duxbury statement, p.8).

(iii) Security

In December 2007 a local community support officer visited the property and recommended some changes to the fencing to the rear of the property and CHA arranged for this to be done. This would appear to have been an improvement going beyond CHA's obligations under the tenancy agreement, and so in my judgment to have involved an element of support.

(iv) Safety

Mrs Duxbury contends in her statement that CHA will arrange annual PAT (portable appliance testing) on the tenants' equipment, if they so elect. I think that Miss Perez is right in saying that there is no evidence that the tenants (or rather those acting for them) have so elected in this case. In any event, this is presumably something which Dawaking or others (e.g. relatives) acting for the tenants could organise without difficulty.

(v) Help with benefit claims

Clause 5.1.6 of the LCC/CHA Agreement provides that CHA is responsible for "providing advice and assistance to [LCC] and tenants in relation to welfare benefits."

On the basis of Mrs Duxbury's evidence, and that in Tab M, I find that just before the commencement of the tenancies Mrs Duxbury spent a day with Mr Long, the then house manager for no. 83, assembling the information necessary for the claims. Mrs Duxbury completed the forms relating to Mr B and Mr J, and part of the form for Mr T. Mrs Duxbury did not finish filling in Mr T's form because they ran out of time, and so Mr Long took the forms away and copied the details from the other two forms on to Mr T's form. They were signed by Mr Long as appointee. This did not involve the giving of continuing support as it was in my judgment part of the setting up of the scheme. The same in my judgment applies to the change of address forms in relation to income support: [Tr 66].

However, Mrs Duxbury did after the commencement of the tenancies provide assistance to Mr T's mother when Mr T's housing benefit was suspended owing to a pension from his late father's employer not having been declared, and in making a renewal application on behalf of Mr T for disability living allowance. It is wholly credible that CHA should have given this support, given the terms of Clause 5.1.6 of the LCC/CHA Agreement. This assistance to Mr T's mother, who according to Mrs Duxbury struggled with this problem, did in my judgment constitute an item of support. Whilst it would in my view be normal practice (and therefore part of ordinary housing management) for a landlord to provide reasonable assistance in connection with aspects of housing benefit matters peculiarly within its knowledge (e.g. the question arising in the present case as to whether the accommodation is exempt accommodation), that would not in my view generally be so in relation to matters relating to the tenant's income.

I accept Mrs Duxbury's evidence [statement p.11] that it is standard practice for her to deal with all housing benefit enquiries on behalf of tenants. However, since the grant of the tenancies this appears to have been necessary on only the one occasion mentioned above.

CHA has of course assisted to a very great extent in relation to the exempt accommodation issue in these appeals. It corresponded with the Council before and after the decisions under appeal, represented the Claimants before the appeal tribunal (Mr Ennals was not instructed at that stage) and has instructed Mr Ennals in the appeals to me. This has clearly all involved a very large amount of Mrs Duxbury's time. Mr Blackledge and Mr Brown were also present before and gave evidence to the Tribunal, and were present at the hearing before me.

However, I do not think that this can be relied upon by CHA as "support" of the nature available to the Claimants by the time of the decisions of 6 March 2006. First, the support actually provided down to the date of that decision (i.e. some correspondence with the Council) did not go beyond ordinary housing management, in that, as I have said, it is in my judgment to be expected that a landlord will assist to a reasonable extent with housing benefit matters which are peculiarly within its knowledge (such as the issue of "exempt accommodation").

Secondly, although what CHA has done since the date of the decisions of 6 March 2006 has undoubtedly gone very substantially beyond ordinary housing management, it has also gone beyond anything which CHA could, down to the date of the decisions, have been expecting to have to do. CHA's evidence in its submission to the Tribunal [T p.122] was that "at no point in the history of [CHA] has the accommodation we provide been considered as anything other than exempt." Further, it appears that CHA had been advised by counsel [T p.85] that it was exempt accommodation. Down to the date of the Council's decision at any rate, CHA's view seems to have been that there was no problem. It is difficult to think that the scheme would have been set up in the way which it was if CHA had thought otherwise. I observe that my decision in R(H) 2/07 (holding that the main support provider in that case did not provide support on behalf of the landlord) was not given until June 2006.

Further, if a landlord is not (ignoring any assistance given to the tenants in arguing the "exempt accommodation" point) providing support within the meaning of the definition, I do not think that a tenant's accommodation can be brought within the definition by virtue of the fact that the landlord intends (in the event of an adverse decision being made by the council) to support the tenant by taking the case to appeal (i.e. by pursuing what would otherwise be a bad case). It cannot in my judgment be right that what would otherwise be a bad case can be made into a good one by virtue simply of the landlord's willingness to support the tenant by taking the case to appeal. If this approach needs to be put on some more reasoned basis, it can I think be put on the basis either (i) that this support is of a nature which will only be necessary if and when there is an adverse decision, and therefore is not support available down to the date of the decision or (ii) that it is support which would cease to be needed if there were a favourable decision. It is difficult to see how support which would necessarily cease to be provided if a favourable decision were made can qualify as support.

(vi) Monitoring support provider

Mrs Duxbury's evidence [statement, p.11] is as follows:

"We carry out regular inspections of the properties and meet with the support provider and tenants. Where we have concerns about the property and management of the support provider we will raise this in the first instance with the housing manager. Secondly we would contact the locality manager from the support provider. If we are still not having any success we contact Social Services, who are in a position to remedy the concerns and generally get the care provider to respond.

We have had concerns about the care provider at [no. 83]. Not for the level of care that the tenants receive directly, as they appear to be very good in this regard. However, we have had problems with failed appointments, being unable to access the property to carry out repairs and inspect, not having telephone calls returned and a poor standard of cleanliness throughout the property. We had to contact Social Services to try to intervene. As the company had been sold to another care provider, we did not have the senior links to the new organisation, and it had taken social services a long time to establish any communication with management of the company as well.

We were able to make contact with the locality manager and met with her at the property with Social Services and resolved satisfactorily all the issues that we raised."

I note that (not surprisingly) the LCC/CHA Agreement does not impose an obligation on CHA to monitor the performance of the care provider. That is the job of LCC (as confirmed by Clause 5.2.5 of the LCC/CHA Agreement). Even if, contrary to my view in para. 232 of the Golden Lane case, monitoring the performance of the care provider can constitute the provision of "support", in my judgment the evidence in the present case does not indicate that what CHA did, in seeking to have its concerns addressed, went beyond ordinary housing management. The concerns (e.g failed appointments and inability to obtain access) were ones which would have concerned CHA in its capacity of a landlord wishing to carry out ordinary housing management.

(vii) Supporting a tenant in breach of tenancy

Miss Duxbury gives evidence in her statement (p.13), and I accept, that "when a tenant is in breach of their tenancy, it is not the policy of [CHA] to start eviction proceedings against the tenant, but to work with the advocates and health professionals to try and resolve the issues the tenant is facing. CHA has not evicted a tenant to date, but has been involved in trying to resolve problems to enable them to comply with the rules of their tenancy."

This is material in the present case, having regard to the damage repeatedly caused by Mr. T. I think that the support is more accurately described as continuing to cope with the consequences of Mr T's behaviour (i.e. by proactively considering what adaptations to the property can be made or other measures can be taken to lessen the risk of damage, and by carrying out the necessary work), and therefore that it is in effect comprised under heads (i) and (ii) above.

(c) Conclusion on Issue 3

In my judgment it was at the date of the Council's decisions of 6 March 2006 contemplated and intended that the CHA would provide support to the Claimants in the form of (i) undertaking repair and maintenance works at no. 83 either going beyond its obligations under the tenancy agreements, or (if comprised within those obligations) which it would not have had to undertake if the tenants had been without disability and (ii) undertaking adaptations to no. 83 to meet the Claimants' needs (provided funds are available from elsewhere) and (iii) advising and assisting in relation to welfare benefits. In my judgment those items of support, although not very significant when compared with the support provided by Dawaking, do provide some significant benefit to the tenants. In my judgment it is more than minimal, and so cannot be ignored by application of the de minimis principle. In my judgment CHA has shown that at the date of those decisions significantly more support was intended to be provided by CHA than was intended to be provided by the landlord in the Golden Lane case.

I reach that conclusion notwithstanding the letter dated 21 July 2006 from CHA to the Appeal Service, signed by Mrs Duxbury [Mr T p.120]. That letter was CHA's submission to the Tribunal and it was based entirely on the contention that both the accommodation and the support were provided by LCC (i.e. the submission considered under Issue 2 above). Indeed, on the second page, under the heading "Care, Support and Supervision" the letter stated:

"The personal profiles enclosed details the support required for each individual.

The support is provided by [Dawaking] (care provider) who are contracted by LCC Social Services Learning Disability Team."

I accept that the letter was drafted in the way it was because it was considered that the appeal would be successful on that basis. It appears from the Record of proceedings that at the hearing Mr Blackledge and Mr Brown of CHA did contend that some support was provided by CHA: see [Mr T pp. 131, 133-5]

J. DISPOSAL

The decision which I substitute for those made by the appeal tribunal is therefore to allow the Claimants' appeals against the Council's decisions of 6 March 2006. The Claimants' accommodation was in my judgment "exempt accommodation."

K. POSTSCRIPT

It seems absurd that the very important question whether the rent eligible for housing benefit is limited to that assessed by a rent officer should depend on whether the landlord can be said to provide some degree of support. It is difficult to see why a landlord which provides no support should be in a different position from one which provides some, albeit not very much, support. The factors which may render supported housing more expensive (e.g. the need for a room to accommodate an overnight carer), and so justify the absence of the usual restriction on the rent, are present whether the support is provided by the landlord or by some other person or body. In addition, if I am adopting the right approach to resolving the issue whether the landlord provides support, it will often be necessary to investigate the landlord's activities in considerable detail, which absorbs an enormous amount of the parties' time and money, and judicial time, and even then there is at the end of the day room for difference of opinion as to the correct outcome. It cannot be sensible to have that as the test unless no more practicable one can be found.

(Signed on original)

Charles Turnbull

Judge of the Upper Tribunal

12 June 2009

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Chorley BC v IT [2009] UKUT 107 (AAC) (12 June 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/107.html Cite as: [2010] AACR 2, [2009] UKUT 107 (AAC)