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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mahmoudi, R (On the Application Of) v London Borough of Lewisham & Anor [2014] EWCA Civ 284 (06 February 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/284.html Cite as: [2014] EWCA Civ 284, [2014] AACR 14 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand London WC2A 2LL |
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B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE TOMLINSON
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THE QUEEN ON THE APPLICATION OF ![]() ![]() |
Appellant |
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v |
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LONDON BOROUGH OF LEWISHAM & ANOTHER |
Respondent |
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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)
Miss Z Leventhal appeared on behalf of the Respondent
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Crown Copyright ©
"Where-
(a) a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in;
(...)
(c) the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and-
(i) that delay was necessary in order to adapt the dwelling to meet the disabled needs of that person or any member of his family (...)
the person shall be treated as occupying the dwelling as his home for any period not exceeding 4 weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments."
"A person is entitled to housing benefit if-
(a) he is liable to make payments in respect of a dwelling (...) which he occupies as his home."
"1. Mr Mahmoudi
is seriously disabled and requires kidney dialysis three times a week. He had been living in damp accommodation at 129 Davenport Road. But this made it impossible for him to receive home dialysis and he was offered new accommodation on 21 October 2009. It was a condition of the offer that he accept it straight away and that his tenancy commenced on 26 October, which he accepted.
2. Mr Mahmoudi
did not move into his new home until 8 November 2009. There were three reasons for the delay. First, because of his dialysis schedule the only day on which it was possible for Mr
Mahmoudi
to move was Sunday, the day on which he felt strongest. Second, it was necessary for him to arrange the removal of his furniture and belongings, which could not take place straight away. Thirdly, it was necessary for the new flat to be redecorated as it had been left in a dirty condition by its previous occupier; Mr
Mahmoudi
needed accommodation which was in very good condition and easy to keep clean because of his need to avoid infection and to make it possible for him to have home dialysis. It took time to arrange for the decorater to attend and the work itself was carried out throughout the week beginning Monday to October.
3. I am satisfied that Mr Mahmoudi
's disability made it necessary for him to wait until the flat had been redecorated before moving in. As a result, even if other factors had not also made a short delay necessary, he would not have been able to move in until after the end of the week of 2 November.
4. It is accepted by the respondent that Mr Mahmoudi
could not have avoided a rental liability for both properties from 23 October 2009 until he moved in on 8 November and returned the keys to his old flat on 9 November..."
The Decision of the Upper Tribunal
"I am satisfied that the appellant's grounds of appeal are sound. Adaption of a property to meet disablement needs would, in my view, require more than furnishing it, carpeting it and putting it in order. It is clear to me that what the legislation has in mind would be such provision as fixed handrails, raised lavatories, widened doors and alterations to the structure of the building to meet a disablement need. The claimant, through his representatives, seeks to widen the scope of the regulation beyond what it was intended to bear. The provision of furnishings and carpeting may render a building habitable and more congenial to living. What it does not do is alter, change or add to the structure or fabric. I am satisfied that a change to the fabric or structure of the building is necessary, not simply the placing of furnishing or carpeting within it in order to adapt it. I accept that the statutory provisions are directed to 'the disablement needs of that person' and not 'someone' but it is the scope of the word 'adapt' which is crucial in the context of the disablement needs of 'that person'. If what was done was not encompassed by the word 'adapt' then the claimant can't succeed. That is the position in this case."
In R(H), he went to say at paragraph 11:
"I adhere to the view which I expressed in that case. I simply cannot accept that redecoration and furnishing in the form of carpeting constitutes adapting the dwelling for the reasons which I have set out in paragraph 7 of CH/1363/2006."
The Construction Issue
"To adapt can mean to make fit, to change or modify to suit a purpose. What in any individual case will amount to adapting a dwelling to meet the disablement needs of a person will depend very much on the nature of those needs. Adapting a dwelling need not in my opinion involve works of any particular type and specifically need not involve any physical interference with the structure of the dwelling or any physical addition to it. Provided the result of the process which the dwelling has undergone is that it has been changed to make it more suitable for the needs of the disabled person, it can fairly be said to have been adapted."
Article 14