Oxford City Council v Basey

This is an appeal from the decision dated 28^th March 2011 of Judge Levenson sitting in the Upper Tribunal (Administrative Appeals Chamber) allowing the Claimant’s (now the Respondent’s) appeal from a decision dated 15^th May 2009 of the First-tier Tribunal (Social Entitlement Chamber).

The issue before the Tribunal was whether the Respondent resided in sheltered accommodation for the purpose of the Housing Benefit Regulations 2006 (“the Regulations”). If the Respondent resided in sheltered accommodation he was entitled to have his share of the costs of fuel for, and cleaning of, the rooms of common use in his accommodation included in his eligible rent for the purpose of calculating the amount of his housing benefit.

The sums in issue in the Respondent’s case are very modest: £15.37 per week for fuel and £4.13 per week for cleaning, a total of £19.50 per week. However, the Upper Tribunal was told that this was one of a large series of related appeals, and that its decision would affect very many other claimants in the area of the Respondent (now the Appellant) local authority, and other local authorities.

The First-tier Tribunal concluded that the Respondent did not reside in sheltered accommodation. The Upper Tribunal concluded that the First-tier Tribunal had applied an unduly restrictive definition of sheltered accommodation, and that the accommodation occupied by the Respondent was sheltered accommodation for the purpose of the Regulations.

The background facts, as summarised by the Upper Tribunal in paragraph 4 of its decision, are not in dispute.

4.

“The claimant is a man who was born on 26^th April 1949. He has severe learning disabilities, is a tenant of a housing association property at “number 21” and is one of four tenants of the property, all of whom have similar difficulties. Each tenant has their own bedroom and they share one kitchen, one bathroom, two toilets, two sitting rooms and one other room. Care, support and supervision by staff are provided 24 hours per day, although only for two to three hours daily on a one to one basis. There are usually two staff members on duty in the morning, three in the afternoon, and two overnight (one awake and one sleeping). There is a room reserved for the exclusive use of staff.”

Housing benefit is a means tested benefit paid by local authorities to those who cannot afford to make the payments for which they are liable “in respect of a dwelling in Great Britain” which they occupy as their home: see section 130 of the Social Security Contributions and Benefits Act 1992 (“the Act”). “Dwelling” is defined by section 137(1) of the Act as:

“any residential accommodation whether or not consisting of the whole or part of a building and whether or not containing separate and self contained accommodation.”

The Regulations are made under the Act and contain the detail of the scheme. Housing benefit is payable in respect of those “periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home” which are specified in sub-paragraphs (a) – (j) of regulation 12(1). They include payments of, or by way of, both (a) rent, and (e) “service charges payment of which is a condition on which the right to occupy the dwelling depends.” However, the latter do not include “Ineligible Service Charges” which are, and were at the material time, defined in Parts 1 and 2 of Schedule 1 to the Regulations, as follows:

“Part 1: Service charges other than for fuel

1.

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

(a)

Charges in respect of day-to-day living expenses including, in particular, all provision of -

(iv)

Cleaning of rooms and windows except cleaning of –

(aa) communal areas; or

(ab)

the exterior of any windows where neither the claimant nor any member of his household is able to clean them himself……

Part 2: Payments in respect of fuel charges

5.

A service charge for fuel except a charge in respect of services for communal areas shall be ineligible to be met by housing benefit.

8.

In this Schedule -

“communal areas” mean areas (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation;

“fuel” includes gas and electricity and a reference to a charge for fuel which includes an amount in respect of the facility of providing it other than a specified amount for the provision of a heating system.”

In addition to charges for the cleaning of rooms and windows (above) sub-paragraphs (a) – (f) of paragraph 1 of Schedule 1 excluded (subject to certain exceptions) charges in respect of (a) meals, laundry, leisure items and transport; (b) furniture and household equipment; (c) emergency alarm systems; (d) medical expenses; (e) nursing care or personal care; and (f) general counselling or any other support. Sub-paragraph 1(g) excludes:

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

The Upper Tribunal helpfully summarised in paragraph 9 of its decision the practical effect of these provisions:

“This convoluted series of exceptions to exceptions means that housing benefit includes the costs of cleaning and fuel for communal areas other than rooms in all accommodation, but also includes the costs of cleaning and fuel for communal rooms in sheltered accommodation.”

Having noted that the phrase “sheltered accommodation” is not defined in the Regulations or in any other statutory material concerning the housing benefit scheme, the Upper Tribunal cited in paragraph 10 of its decision the only authority on the meaning of the phrase, an observation by Upper Tribunal Judge Mesher (sitting as a Social Security Commissioner) in the Appendix to a series of cases, including CIS/1460/1995. The observation was obiter because the parties were agreed that the accommodation in that case was sheltered accommodation. In paragraph 18 of the Appendix Judge Mesher said:

“It seems to me that the characteristics of the accommodation in the present case which point conclusively to its being sheltered accommodation are that the individual dwellings are grouped together; that accommodation is offered primarily to those with some special housing needs (in this case the elderly retired); that some communal accommodation or facilities are provided; that a warden is employed; and that an emergency alarm system is operated. It is certainly not the case that accommodation is only sheltered accommodation if all or even a majority of those characteristics are present. However, characteristics of that kind should be looked at in determining whether accommodation is sheltered accommodation.”

The Appellant’s core submission before the Upper Tribunal was that the occupation occupied by the Respondent

“Could not be sheltered accommodation because there was no warden in the sense discussed by the First-tier Tribunal and because the claimant’s accommodation, in the sense of his exclusive occupation, was not self-contained. A common and predominant theme of sheltered accommodation as generally described is that there are three essential features which must all be present. There must be some type of warden or scheme manager and an emergency alarm system and the residents must be capable of living independently for part of the time, without round the clock supervision or support. Mr Underwood was not sure that he would go so far as to say that a claimant’s accommodation must be self-contained (so that it can be lived in without using the common rooms) but a great deal of regard must be given to this even if it is not determinative.”

The Upper Tribunal rejected that submission. Judge Levenson said in paragraphs 32 -35 of his decision:

32.

“Sheltered accommodation” clearly means something more than ordinary accommodation or shelter, otherwise the distinction would not be made in paragraph 8 of Schedule 1 to the regulations. This can only really mean that it is accommodation provided for people who are in some way (and probably for some defined reason) more vulnerable than most people are, or are vulnerable in a particular kind of way.

33.

If, for reasons relating to the nature of claimant’s vulnerability, there are resident or other staff on hand, then I see no reason why, as part of the definition, there has to be a warden/manager and/or an alarm system. Subject to that, I agree with the comments of Judge Mesher referred to in paragraph 10 above.

34.

The First-tier Tribunal went wrong in unduly emphasising the presence of a warden/manager and an alarm system. More significantly, the First-tier Tribunal and the respondents have gone wrong in emphasising a need for the accommodation to be self-contained. By definition we cannot be talking about totally self-contained accommodation, because the relevant provisions of Schedule 1 only come into play if there are common rooms that have to be lit, heated and cleaned. I see absolutely nothing in the regulations that prevents housing benefit being available for these costs because a claimant could happily chose not to ever use any of these common rooms. Indeed that would be perverse – to say that the less need there is to use such rooms, the more likely it is that housing benefit should cover their costs.

35.

There are some types of accommodation that are clearly not “sheltered accommodation” – such as (and these are only examples) (a) accommodation of the type that most people probably occupy which is not designed for any kind of vulnerable person or where there is absolutely no special provision, (b) residential or nursing care homes, (c) standard student accommodation and (d) other types dealt with by other provisions of the housing benefit scheme. However, unless accommodation is excluded by virtue of being in one of those categories, a broad view should be taken of the meaning of “sheltered” for these purposes and, in my opinion, it certainly includes the type of accommodation occupied by the claimant.”

In its Skeleton Argument the Appellant contended that, in the absence of any statutory definition, the words “sheltered accommodation” must be given their ordinary and natural meaning. That meaning could be readily ascertained by reference to the dictionary definition of sheltered accommodation, and more particularly by evidence of common usage, especially among those organisations responsible for assisting the vulnerable.

In the Skeleton Argument it was submitted that examination of this material demonstrated that sheltered accommodation was distinguishable from other types of supported accommodation because of the existence of six “essential common features” namely:-

“1.

small, easily managed, self-contained accommodation with its own bathroom and kitchen,

2.

which is grouped together on a site,

3.

is designed specifically for the elderly, disabled or other vulnerable persons,

4.

is served by a warden, who deals with estate management issues and emergencies only,

5.

is served by an emergency alarm system and

6.

has a communal common room, for social activities, and gardens.”

The “three essential features” referred to in the Appellant’s submissions before the Upper Tribunal had increased to “six essential common features.” However, at an early stage in his oral submissions Mr. Moore conceded that self-contained accommodation with its own bathroom and kitchen was not an essential characteristic of sheltered accommodation. He accepted that accommodation could be sheltered accommodation even if it was not self-contained, but submitted that in the absence of self-containment one would have to look very carefully to ensure that the other common features were present, and there would have to be “something exceptional” if accommodation that was not self-contained was to fall within the description of sheltered accommodation.

Mr. Moore further accepted that the presence of the other five common features listed in paragraph 14 (above) was not “essential.” Thus, for example, the lack of an emergency alarm system or the services of a warden who dealt with other matters in addition to estate management issues and emergencies, would not necessarily mean that the accommodation was not sheltered accommodation. However, Mr Moore submitted that it was relevant to take the presence, or absence, of any of the six features into account when deciding whether accommodation was sheltered. When asked how this approach to the meaning of sheltered accommodation differed from that of Judge Mesher (paragraph 10 above), Mr. Moore replied that at least some of the six features had to be present. The six features were all characteristics of accommodation which was occupied by persons who led an independent existence. If the level of dependence on care was too high, as it was in the Respondent’s case, the accommodation was not properly described as sheltered accommodation. If one sought the meaning of sheltered accommodation, a scheme which contained all six of the common features would be the paradigm.

In my judgment, Mr. Moore’s concession that the six common features, including self-containment, were not “essential” for accommodation to be properly described as sheltered accommodation was plainly correct. The statutory scheme is very detailed. Terms are defined in both the Act and the Regulations. The Act envisages that housing benefit may be payable in respect of residential accommodation that is not self-contained (see section 137(1), paragraph 6 above); and the fact that special provision is made in Schedule 1 for rooms of common use in sheltered accommodation suggests that self-containment in such accommodation is not essential for the purpose of the Regulations. Regulation 2, which deals with “Interpretation”, contains numerous definitions extending over a number of pages. Where Parliament wishes words to be defined in a particular way in this statutory scheme it says so, in very great detail. Judge Mesher’s decision (paragraph 10) represented the settled approach of the Social Security Commissioners to the meaning of sheltered accommodation – that there were no prescriptive characteristics – prior to the making of the Regulations. The submission in the Skeleton Argument that all six common features must exist for there to be sheltered accommodation was an attempt to impose a highly prescriptive definition of “sheltered accommodation” which Parliament had deliberately chosen to leave undefined.

The Respondent’s submission that sheltered accommodation is a flexible, and perhaps as a consequence of the increasing emphasis upon care in the community, an evolving concept is supported by the materials relating to common usage which were relied upon by the Appellant. In its publication, “Rights in Supported Accommodation”, Shelter answers the question “What is Sheltered Housing?” as follows (emphasis added):

“Sheltered housing gives older people the independence of having their own flat with the security of having an alarm system and a warden. The flats are usually small self-contained units or single rooms in a complex, which often has a communal social area. It is possible to find sheltered housing to rent or to buy.”

Elderly Accommodation Counsel, which understandably focuses on sheltered housing for the elderly, answers the question “What is sheltered housing or retirement housing?” as follows (emphasis added):

“Sheltered housing is often called retirement housing. Sheltered housing is housing designed to meet the needs of the elderly. Most sheltered and retirement housing schemes have a scheme manager or warden and an emergency alarm service. There are often communal facilities such as a lounge, laundry, guest flat and garden. Meals are not normally provided but a few schemes include a restaurant or can arrange a hot meal.

There are many different types of sheltered or retirement housing to rent and to buy. Schemes usually consist of between 15 and 60 dwellings which may be bed sitters, self-contained flats, bungalows or luxury apartments.”

When answering the question “Why Choose Sheltered Housing?” Help the Aged says:

“There are also schemes that offer extra care or very sheltered housing. This type of accommodation is ideal for people who are less able to manage on their own, but who do not need the level of care available in a care home. The services offered will vary between schemes, but meals; help with domestic tasks and some personal care are often provided. Close care housing is usually located in the grounds of a care home, with staff from the home providing extra care and assistance.”

While this advice is concerned with sheltered accommodation for the elderly, the Regulations are concerned with sheltered accommodation generally. In its guidance dealing with “Disabled people and Sheltered housing” Directgov says:

“Sheltered accommodation is different from other housing because a scheme manager or warden lives on the premises or nearby. They can be contacted through an alarm system if necessary. Some schemes are designed specifically for people with disabilities and may have specialised facilities and specially trained staff to provide care.

Extra care sheltered housing

Sheltered housing that offers a greater level of care is also available, known as “extra care sheltered housing” or “very sheltered housing”. It can be ideal for people who are less able to manage on their own, but who do not need the level of care available in a residential home. Services offered will vary between schemes, but meals and some personal care are often provided.”

In the Appellant’s Skeleton Argument and in his oral submissions Mr. Moore accepted that “extra care or very sheltered accommodation”, is a form of sheltered accommodation, albeit a relatively recent development. In the Skeleton Argument he had submitted that the Respondent’s accommodation could be distinguished from very sheltered accommodation because the residents in very sheltered accommodation “will still live in a self-contained unit of accommodation and the services of a warden will still be provided, but in addition, residents may be provided with meals in a communal dining room and may even benefit from on-site personal care such as bathing and dressing.”

Now that it is accepted that self-containment and the services of a warden, while commonly found, are not “essential” features of sheltered accommodation, it is very difficult to see why the accommodation occupied by the Respondent (see paragraph 5 above) does not fall within the descriptions of very sheltered or extra care sheltered accommodation provided by Help the Aged and Directgov, which were put forward by the Appellant as examples of sheltered accommodation in common usage (paragraphs 20 and 21 above).

In view of the development of extra care sheltered accommodation there may well be a fine line between the care now provided in sheltered accommodation and the care provided in a “care home”, which regulation 2 defines by reference to section 3 of the Care Standards Act 2000. While the level of care provided may not differ to any great extent, one obvious distinction between the Respondent’s position and that of a resident in a care home is that the Respondent has exclusive occupation of his own room in “number 21” by virtue of a tenancy agreement for which he pays both a rent and service charges.

Mr. Moore agreed with the description in paragraph 13 of the First-tier Tribunal’s decision of the Respondent’s accommodation as being “one rung below care homes”. While he readily accepted that there was a spectrum of accommodation between a care home and an “ordinary” house in which an elderly or disabled person lived, with or without the assistance of some care, he submitted that accommodation at the upper end of that spectrum ceased to be sheltered accommodation, and should instead be described as “supported accommodation”, because the occupiers were not able to live independently. Self-contained accommodation and the services of a warden whose duties did not include the provision of any care were features which demonstrated that the occupier was able to live independently. The Respondent’s care needs were so great that he was not able to, and did not, live independently. Therefore, so the Appellant’s argument ran, the Respondent’s accommodation was properly described as supported accommodation, and not sheltered accommodation.

As Mr. Kolinsky pointed out, the Regulations do not refer to supported accommodation, much less do they distinguish between supported and sheltered accommodation. If Parliament had wished to introduce such a distinction it could have done so. The Appellant’s emphasis upon the need for the occupier to be able to live independently is misconceived in the context of accommodation which is, by definition, not “ordinary” accommodation occupied by those who are able to live wholly independent lives, with no need to use any common rooms. Extra sheltered housing is provided for people who are “less able to manage on their own”. The levels of care provided vary between schemes, depending upon the extent to which the occupiers need support in order to be able to lead an independent existence. I can see no sensible basis for the blanket proposition that accommodation which is only “one rung” below that which is to be found in a care home is not to be regarded as sheltered accommodation, whereas accommodation which is more than one rung below is to be regarded as sheltered accommodation.

In this context it is wrong to treat the ability to manage on one’s own, or to lead an independent existence, as a hard-edged concept. In reality, there are varying degrees of ability to lead an independent existence, and the special provision made in Schedule 1 for the cost of lighting, heating and cleaning common rooms in sheltered accommodation is a recognition of the fact that the occupiers of such accommodation may well be leading less independent lives than those who occupy “ordinary” housing. There is force in the Upper Tribunal’s observation in paragraph 34 of its decision that it would be perverse if occupiers who had less need to use the common rooms in sheltered accommodation (because they are more able to manage on their own) were entitled to receive housing benefit to cover the cost of these rooms, while those, such as the Respondent, who had more need to use the common rooms (because they were less able to manage on their own) were not so entitled.

Mr. Moore sought to persuade us that, far from this being an anomaly, it would be anomalous if the Respondent, or persons in his position, were able to claim housing benefit in respect of the cost of heating, lighting and cleaning the communal kitchens and bathrooms in their accommodation. This was because the occupier of the paradigm of sheltered accommodation would not be entitled to claim housing benefit in respect of the kitchen and bathroom within his self-contained accommodation. By the end of Mr. Moore’s submissions it appeared that this perceived anomaly was the Appellant’s principal, if not its only, reason for contending that the Respondent was not occupying sheltered accommodation. Mr. Moore posed the question: “If the occupier in the paradigm case could not be entitled to housing benefit, why should the Respondent be so entitled?”

In an extreme case the Court might be driven to depart from the ordinary and natural meaning of a word or phrase in order to avoid an egregious anomaly, but this is very far from being such a case. Even if there is an anomaly it could not sensibly be described as a significant one, and in any event it is far from clear that the Upper Tribunal’s decision that the Respondent lives in sheltered accommodation and is therefore entitled to claim housing benefit in respect of the costs of fuel for, and cleaning of, the common rooms in “number 21” is an outcome which is contrary to the underlying statutory purpose.

Some “anomalies” are inherent in a statutory scheme in which charges for day to day living expenses such as cleaning and fuel are generally not eligible to be met by housing benefit, but are eligible to be met in respect of rooms of common use in sheltered accommodation. An occupier of sheltered accommodation which contains a large kitchen and a spacious living room for his exclusive use in a scheme in which there are only limited communal facilities, perhaps a small sitting room, will not be entitled to any housing benefit in respect of the cost of heating, lighting and cleaning his large kitchen and living room; whereas the occupier of sheltered accommodation which contains only basic cooking facilities and a small living room, perhaps reflecting the fact that the scheme in which he lives provides generous communal facilities including a fully equipped kitchen which provides meals, and a number of spacious sitting rooms, will be ineligible for housing benefit in respect of only a small proportion of the total cost of heating, lighting and cleaning the kitchen and living areas which are available for his use in both his own accommodation and the common rooms.

A line has to be drawn somewhere. In such a detailed statutory scheme it is sometimes difficult to discern any overarching statutory purpose. It is clear, however, that the scheme does give preferential treatment to the occupiers of sheltered accommodation who are entitled to be paid housing benefit in respect of the costs of fuel for, and cleaning of, both common rooms and communal areas. What is the purpose of this preferential treatment? Mr. Kolinsky submitted that sub-paragraph 1(g) of Schedule 1 (see paragraph 8 above) provided a clue. It excludes from eligibility for housing benefit any service charges which “are not connected with the provision of adequate accommodation.” Paragraph 1 of Schedule 1 excludes day-to-day living expenses from eligibility, but ensures that service charges which relate to the provision of adequate accommodation are eligible to be met by housing benefit. The Regulations make the broad assumption that communal rooms tend to be necessary in sheltered accommodation in order to provide “adequate accommodation” for those who are likely to need sheltered accommodation.

I accept Mr. Kolinsky’s submission. The need for communal rooms will vary from scheme to scheme, but it would not be consistent with the statutory purpose to exclude from the definition of sheltered accommodation those very sheltered housing schemes where the need for communal rooms in order to provide adequate accommodation for those who “are less able to manage on their own” is even greater than in other forms of sheltered accommodation.

The Upper Tribunal’s conclusion that the type of accommodation occupied by the Respondent was sheltered accommodation for the purpose of the Regulations was correct. Parliament did not choose to define sheltered accommodation and the Court should not impose a prescriptive definition upon an inherently flexible concept which can take many different forms, and which now includes very sheltered or extra care sheltered accommodation.

At one end of a broad spectrum, sheltered accommodation is distinguishable from “ordinary” accommodation because it will incorporate particular features which are not normally found in “ordinary” accommodation and are designed to meet the needs of occupiers who are vulnerable in some way, often by reason of age, and increasingly by reason of disability. The Appellant’s six “essential common features” are no more than a non-exhaustive list of examples of such features. The presence, or absence of a particular feature is not determinative.

At the other end of the spectrum a care home is not sheltered accommodation. The occupiers of a care home may well need a greater level of care than is available in very sheltered accommodation - see the descriptions of very sheltered housing by Help the Aged and Directgov (paragraphs 20 and 21 above) – but the level of care may well be determined more by personal choice and/or availability, or more probably lack of provision in a particular area. The emphasis in a care home will usually be rather more on care than accommodation, and this will normally be reflected in the basis upon which such accommodation is occupied. Typically the occupiers will occupy their rooms under licence. Of particular importance for present purposes – eligibility for housing benefit in respect of service charges for heating, lighting and cleaning common rooms in sheltered accommodation – those having exclusive possession of their own living space within that sheltered accommodation will be in occupation, and will be liable to pay the rent and service charges which are eligible for housing benefit, pursuant to a tenancy.

I would dismiss this appeal.

I agree

I also agree.