SH v London Borough of Southwark

This is the claimant’s appeal to the Upper Tribunal, brought with my permission given on 24 November 2021, from a decision of the First-tier Tribunal (F-tT) which it made on 9 November 2020 and which it explained in a statement of reasons for decision (statement of reasons) of 25 January 2021. The F-tT, in dismissing the claimant’s appeal to it, decided that she was not entitled to housing benefit (HB) from 24 March 2019. That was because, by that date, regulation 7(4) of the Housing Benefit Regulations 2006 had ceased to apply to her.

I held an oral hearing of the appeal, which took place at Field House in London, on 15 March 2023. The claimant was represented, at that hearing, by Mr D Rutledge of Counsel, instructed by the Mary Ward Legal Centre. The respondent local authority (the LA) was represented by Mr M Iyekekpolor, an Appeals Officer. I am grateful to both of them for their careful and helpful submissions.

I had a great deal of documentation before me at the hearing. This included the Upper Tribunal bundle, an authorities bundle, various photographs of the accommodation in respect of which the claimant asserted entitlement to HB, a witness statement of the claimant of 24 October 2020, and a schedule of essential reading. I also had the LA’s response to the appeal and the claimant’s reply to that response.

I have considered all of the written material insofar as it has relevance to the issues of law which I am called upon to decide in determining this appeal.

Section 130 of the Social Security Contributions and Benefits Act 1992 relevantly provides:

Regulation 7 of the Housing Benefit Regulations 2006 relevantly provides:

The main focus of this appeal has been upon regulation 7(4) of the above Regulations.

On a date in 2008 (I am not sure of the precise date, but nothing turns on it) the LA granted the claimant a secure tenancy of a ground floor flat in a two-storey building. I shall refer to that accommodation as “property 1”. The claimant sought HB from the same LA. HB was granted. There is no dispute about the fact that she was receiving HB in October 2012. At that point, and in order that the LA could carry out repairs to property 1 as it was obliged to do as her landlord, she moved out and began to occupy a property I shall call “property 2”. The LA permitted her to occupy property 2 and did not require her to pay rent or any other form of accommodation charge in respect of her occupation of it. She continued to be liable for the rent on property 1 but, of course, it was being discharged by way of the payments of HB.

It is accepted by the parties that when the claimant vacated property 1 and began to occupy property 2, regulation 7(4) of the Housing Benefit Regulations 2006 applied. That is to say, it is accepted that she had been required to move to property 2, as temporary accommodation, by reason of essential repairs being carried out to property 1.

The LA carried out some repairs to property 1 but there was ongoing dispute between it and the claimant (assisted by the Mary Ward Legal Centre) as to the adequacy or otherwise of those repairs. Matters were complicated due to the claimant having health problems of some significance. Whilst there is a mix of physical health problems and mental health problems, it is the latter which, as it seems all parties accept is, by some distance, the greater concern. The F-tT was to go on to find (see below) that the claimant suffers from agoraphobia, anxiety and depression. The F-tT had before it a report of 17 February 2020 prepared by Dr F Brady, a clinical psychologist, and which addressed in some detail the claimant’s mental health difficulties. As Mr Rutledge points out, although the F-tT used the term “anxiety” Dr Brady referred to “social anxiety”.

Returning to the narrative, by 22 February 2013 sufficient internal works of repair had been carried out to persuade the LA that it had complied with its repairing obligations. However, that was not accepted by or on behalf of the claimant. On 6 February 2015, the LA indicated its view, in writing, that there were no outstanding issues in relation to required internal works to property 1. But again, such was not accepted. On 19 March 2019 the LA decided the claimant was no longer entitled to HB, in respect of property 1. The LA’s reasoning is set out in a letter of 7 May 2019 which it sent to the claimant. The LA made clear, in that letter, its view that all essential repairs had been completed such that regulation 7(4) no longer applied and that regulation 7(13) had no application because the claimant no longer intended to return to property 1 and she had, in any event, been absent from it for too long for that sub-paragraph to assist her.

The claimant appealed to the F-tT within time. After she had done so, a report was obtained on her behalf prepared by one Mr I Lovatt, who is a Chartered Surveyor. He inspected property 1 on 23 September 2020 for the purposes of the preparation of his report. The report identified some further repair works which it was said required attention. Although that report did not refer to any need to repair an external fence, it has been argued on behalf of the claimant, and this was a strong feature of the submissions to the F-tT, that the need to repair the fence amounted to an essential repair and that, unless it was satisfactorily carried out, the claimant could not be expected to return to property 1.

The F-tT considered the appeal at an oral hearing which took place on 9 November 2020. The claimant was represented by Mr Rutledge. The claimant gave oral evidence to the F-tT as did her solicitor Ms S Cheshire. The LA was represented by Mr C Reid, a Presenting Officer.

The F-tT made a number of quite detailed findings regarding the dispute between the claimant and the LA, the repair works which were carried out by the LA, and the health problems of the claimant. I have considered it appropriate to set out those findings of fact in this decision. The F-tT found as follows:

“C. Findings of fact

C1. The repairs which were to be carried out while [the claimant] was in temporary accommodation

Having made its findings, the F-tT went on to apply the relevant law (as it understood it) to those facts and to explain why it was dismissing the appeal. It said this:

“D. Analysis

24.

I accepted Mr Rutledge’s submission that the legal burden was on [the LA] to establish there were, on 19 March 2019, grounds to supersede the earlier decision to award Housing Benefit.

25.

[The LA’s] position was that the relevant ground of supersession was that there had been a change of circumstances relevant to [the claimant’s] entitlement to Housing Benefit. In particular, [the LA’s] position was the repairs which had required [the claimant] to move into temporary accommodation in October 2012 had been completed and that this change impacted on [the claimant’s] entitlement to Housing Benefit because it meant she no longer fell within the terms of regulation 7(4).

26.

I concluded [the LA] had discharged the legal burden on them to show that regulation 7(4) had ceased to apply for the following reasons:

(a)

[The claimant] had been required to move into temporary accommodation because of the need to carry out the internal repairs set out in the document headed [property 1 – Scope of Works] (page 204). [The LA’s] second snagging report establishes these works had been completed by 22 February 2013.

(b)

[The claimant] disputes this and says there were still problems with the internal condition of the premises on 22 February 2013. However, I concluded this did not assist [the claimant] for two reasons:

i.

In CH/393/2020 Commissioner Williams reached the following conclusion about regulation 5(7) of the Housing Benefit (General) Regulations 1987 – a regulation that was identical to regulation 7(4) of the current Housing Benefit regulations:

So, the F-tT dismissed the appeal.

The initial grounds of appeal were set out in a document of 24 February 2021 drafted by Mr Rutledge. The three grounds at that stage relied upon were as follows:

In a skeleton argument of 8 November 2021, which had been prepared in connection with the oral hearing of the application for permission to appeal, Mr Rutledge raised contentions to the effect that the F-tT had erred through failing to have regard to relevant evidence before deciding that the claimant could be expected to occupy the dwelling which I have called property 1 and had further erred through misunderstanding the nature of some of the evidence before it. As to that latter contention, the point Mr Rutledge sought to make was that the F-tT had failed to appreciate, in considering the content of Mr Lovatt’s report, that he had been unaware of the claimant’s medical concerns. I am not sure whether those arguments are best characterised as additional grounds or aspects of the original grounds. But whatever view might be taken as to that, I shall address them.

I have started by considering ground 2, as set out above, and by asking myself whether the F-tT did or did not correctly apply the test as set out in Regulation 7(4) of the Housing Benefit Regulations 2006. As to that, Mr Rutledge, in his reply to the LA’s response to the appeal and in his oral submissions, argued that Regulation 7(4) must be construed in a way which is consistent “with the underlying policy behind the HB scheme - to help those on a low income and in genuine need to meet the costs of their rent”. As to that, he referred to the words of Lord Bingham of Cornhill in R(Mehanne) v City of Westminster Housing Benefit Review Board [2001] 1 WLR 539, who had this to say about the HB scheme:

“…It is directed to the humane objective of assisting those of modest means to provide themselves with a roof over their heads. This is, after all, one of the most basic of human needs, and it is not surprisingly accepted as a proper object of public expenditure”.

Mr Rutledge also drew my attention to the words of Upper Tribunal Judge Rowland in MP v Sutton London Borough Council (HB) [2021] UKUT 193 (AAC) that:

“…The underlying purpose of the [HB] Regulations...is to provide financial help to those who need it in order to pay rent or similar housing costs”.

Mr Rutledge agreed with a suggestion I had made in the course of written observations when giving permission to appeal, to the effect that Regulation 7(4) required the following to be satisfied before it applies:

“a.

There must be a need for repairs to be undertaken.

b.

The repairs must be essential.

c.

The carrying out of the essential repairs must require the occupant to move out of the relevant premises.

d.

The need to move out is not triggered just by there being a need to undertake essential repairs. It is also necessary that the essential repairs cannot be undertaken with the occupant in residence.

e.

Once a stage is reached whereby there are no outstanding repairs which are both essential and incapable of being done whilst the occupant is in residence, the regulation necessarily ceases to apply”.

But the interpretation of the regulation 7(4), and I think Mr Rutledge had in mind in particular the meaning of “essential” and the meaning of “required” fell to be interpreted, he argued, in line with the above underlying policy. That was perhaps a more general point made regarding interpretation but the specific point which had been stressed in ground 2 in its written form was the relevance to the regulation 7(4) criteria, which it was suggested the F-tT had failed to appreciate, of a tenant’s health concerns.

I am sure Mr Rutledge is correct in effectively stating that the rationale for the HB Scheme is provision of financial assistance to claimants on a low income to help them meet the costs of their rent. But I do not think that offers very much assistance in the interpretation of Regulation 7(4). There is nothing in the underlying policy which prohibits the application of specific conditions of entitlement, or which prohibits exceptions which might exclude a tenant from entitlement. The wording of that regulation is, anyway, clear and straightforward. The F-tT simply applied the test as it appears in the legislation and did not err in doing so. But the particular point made in ground 2 in its written form was to the effect that the F-tT had failed to factor in the relevance of the claimant’s health problems.

There is, I would accept, an issue to be considered as to whether Regulation 7(4) posits a purely objective test or whether the circumstances of an individual claimant, when considering what might constitute “essential repairs” and when considering whether a claimant has been “required” to move into temporary accommodation by reason of such repairs being carried out” are to be considered. Mr Rutledge’s final position on the point, as I understand him, was to the effect that what is posited is an objective test but one that will take the relevant circumstances of the tenant into account. Essentially, I would agree. In deciding whether the test in Regulation 7(4) is met, it is not a question of asking what the reasonable individual might regard as an essential repair or what the reasonable individual might think was sufficient to require a tenant to move out for such repairs to be carried out. Rather, the evaluation takes account of the claimant’s individual characteristics which would include impairment or vulnerability in consequence of ill health. That approach is entirely in line with that taken by Commissioner Williams in CH/393/2002, cited by the F-tT and relied upon by Mr Rutledge.

Ground 2 in its written form is specifically directed (see paragraph 17 of the document of 24 February 2021) towards the F-tT’s conclusions regarding the boundary fence. Although the overall tenor of what the F-tT had to say seems to point to its having reached the view that the required repair to the fence did not amount to an essential repair, it is clear from the part of its reasoning which I have set out above, that it found against the claimant because, on the hypothetical assumption that she was occupying property 1, repairs to that fence would not require her to move out. Whilst I think, at certain points, Mr Rutledge has sought to wrongly ask the question whether it would be reasonable for the claimant to occupy property 1 whilst the fence is in disrepair, that is not quite the question that the regulation poses. Logically, it is very difficult to envisage a situation where a tenant, even one with the difficult mental health problems the claimant has, could not remain in situ whilst what appears to be a seemingly straightforward and simple external repair could be carried out. That was, effectively, I think, the reasoning of the F-tT which led to its conclusion at paragraph 27(c)(ii) of its statement of reasons. It cannot be said that the F-tT did not, in reaching that view, have regard to the claimant’s health difficulties. It had expressly referred to them at paragraph 22 of its statement of reasons, and that included a reference to the report of Dr Brady. So, it had clearly read that report and had it in mind. Further, it referred to the words of Commissioner Williams regarding the relevance of health problems to the application of Regulation 7(4). All of that being so, I cannot conclude that the F-tT applied the wrong test in deciding that the repairs to the external fence, whether essential or not, did not require the claimant to leave the property or would not have required her to do so had she been in situ when the need for that external repair to be carried out had arisen. Ground 2 (perhaps the main ground which has actively been pursued in this appeal) is not made out.

As to ground 1, I start by reiterating that the second limb of the Regulation 7(4) test is not whether the claimant could be expected to reside in property 1 with the repair to the external fence outstanding, but whether, if she were in residence there, the carrying out of that repair would require her to move to other premises. The ground, in its written form, lists passages from a witness statement provided by the claimant and passages from Dr Brady’s report of 6 March 2020 which underpinned a submission to the F-tT that property 1 was not “habitable” at the time the decision under appeal was taken, “due to the problems with the lack of security at the back of the property”. The way the ground is put does, I think, conflate the two essentially separate questions referred to above. But there was no conflation on the part of the F-tT. It is clear from what it had to say that it appreciated it was asking itself whether the above repair works would, as at the date of the LA’s decision, have required the claimant to move out whilst they were addressed. The F-tT did not quote from either the witness statement nor Dr Brady’s report but there is nothing to suggest it did not have proper regard to all of the material which was before it. Given the relatively undemanding nature of the relevant part of the test (the question of the ability to carry out the repairs with the claimant hypothetically in situ) it was not required, as a matter of law, to say any more than it did. Its reasoning was not inadequate, nor did it lack clarity. It was a simple matter for it to decide and explain on the material before it that an outside fence could be repaired with the claimant in situ. This ground of appeal is not made out.

As to ground 3, it may or may not be the case that the LA ought to have carried out a post-works inspection and prepared some sort of report regarding the efficacy of the works which had been carried out. But, so long as there was sufficient evidence in order to enable it to reach proper conclusions the F-tT was simply required to make findings on the basis of the material which was before it. Further, there was a significant amount of written material before it and it referred to various reports concerning the repairs in its statement of reasons. It was not somehow debarred from reaching conclusions as to the repair works and the efficacy of those works simply because a final post-works inspection had not been undertaken. The F-tT had sufficient evidence before it to underpin its conclusions. This ground of appeal is not made out.

As I have said, in the skeleton argument which was prepared in advance of the permission hearing it was contended that the F-tT had erred through failing to have regard to relevant evidence before deciding the claimant could “occupy the dwelling”. That was, a point I have already made, to ask the wrong question as I think, very fairly, Mr Rutledge now acknowledges. The question was whether she would be required to decant whilst repairs were being carried out. And as I have already said in dealing with ground 1, I can find nothing to suggest that the F-tT did not take proper account of the many and various items of evidence before it. As to the specific point regarding Mr Lovett being unaware of the claimant’s medical concerns, I do not see that as a point which impinges, in any sense, upon the F-tT’s view that the external repairs to the fencing could be carried out with the claimant in situ. The F-tT itself was aware of the health difficulties. Essentially, it relied on the report of Mr Lovatt, as it was entitled to do, to inform it as to the nature and seriousness of any works which were or were not required to be carried out as at the date of the LA’s decision. Given that Mr Lovatt was qualified to assess such matters it is difficult to criticise the F-tT for doing that. These additional grounds, if intended as such, are not made out.

In the reply to the LA’s response to the appeal, Mr Rutledge indicated he would pursue an argument under the Equality Act 2010. However, before me, he made clear that he was no longer seeking to do so. Accordingly, I do not need to say anything about that other than to observe that since no such argument had been pursued before the F-tT I would not have been able to conclude it had made any error in not dealing with any possible application that Act might conceivably have had. But, as I say, the matter was not, in the end, pursued before me.

In light of the above and despite the commendably determined efforts of Mr Rutledge and those instructing him, I conclude that the F-tT’s decision was free from legal error. Accordingly, this appeal to the Upper Tribunal is dismissed.