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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Oxford City Council v Basey  EWCA Civ 115 (15 February 2012)
Cite as:  AACR 38,  PTSR 1324,  EWCA Civ 115,  WLR(D) 34
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ON APPEAL FROM Upper Tribunal (Administrative Appeals Chamber)
C3/0322/2010,  UKUT 136 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE SULLIVAN
| OXFORD CITY COUNCIL
|- and -
|JOHN BASEY (BY HIS LITIGATION FRIEND TARQUIN MAY)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Daniel Kolinsky (instructed by CPAG Solicitors) for the Respondent
Hearing date: 24th January 2012
Crown Copyright ©
Lord Justice Sullivan:
4. "The claimant is a man who was born on 26th 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."
The Statutory Scheme
"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."
"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
(bb) 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."
"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's decision
"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."
"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."
"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."
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."
"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."
"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."
"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."
"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."
"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."
Lord Justice Etherton:
Lord Justice Mummery: