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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CH_3528_2006 (05 February 2008) URL: https://www.bailii.org/uk/cases/UKSSCSC/2008/CH_3528_2006.html Cite as: [2008] UKSSCSC CH_3528_2006 |
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[2008] UKSSCSC CH_3528_2006 (05 February 2008)
I SET ASIDE the decision of the Birmingham appeal tribunal, held on 24 November 2005 under reference U/04/024/2005/06636, because it is erroneous in point of law.
I give the decision that the appeal tribunal should have given, without making fresh or further findings of fact.
My DECISION is:
The claimant's rent under regulation 12(1)(a) includes the amounts charged by the landlord for voids and long-term maintenance. Any dispute about the effective date from which the rent is to be increased may be referred to me or to another Commissioner for decision.
Otherwise I confirm the tribunal's decision on service charges.
The amount of the claimant's eligible rent is not to be restricted under the alternative regulation 13 of the Housing Benefit Regulations 2006.
The legislation
'(1) A person is entitled to housing benefit if-
(a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home'.
Section 130(2) provides:
'(2) In subsection (1) above "payments in respect of a dwelling" means such payments as may be prescribed.
'(1) Subject to the following provisions of this regulation, the payments in respect of which housing benefit is payable are the following periodical payments which a person is liable to make in respect of the dwelling which he occupies as his home-
(a) payments of, or by way of, rent;
(e) payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends'.
Regulation 12(8) contains the relevant definitions:
'(8) In this regulation and Schedule 1 (ineligible service charges)-
"service charges" means periodical payments for services, whether or not under the same agreement as that under which the dwelling is occupied, or whether or not such a charge is specified as separate from or separately identified within other payments made by the occupier in respect of the dwelling; and
"services" means services performed or facilities (including the use of furniture) provided for, or rights made available to, the occupier of a dwelling.
'(1) The following service charges shall not be eligible to be met by housing benefit-
(g) charges in respect of any services not specified in sub-paragraph (a) to (f) which are not connected with the provision of adequate accommodation.'
'Excessive service costs
4. Subject to paragraph 2, where the relevant authority considers that the amount of a service charge to which regulation 12(1)(e) (rent) applies is excessive in relation to the service provided for the claimant or his family, having regard to the cost of comparable services, it shall make a deduction from that charge of the excess and the amount so deducted shall be ineligible to be met by housing benefit.'
'(3) Subject to paragraphs (4), (5) and (7), the amount of a person's eligible rent shall be-
(a) the maximum rent ; or
(b) except where sub-paragraph (a) applies, the aggregate of such payments specified in paragraph (1) as that person is liable to pay less-
(ii) where payments include service charges which are wholly or partly ineligible, an amount in respect of the ineligible charges determined in accordance with Schedule 1'.
What the tribunal did
Voids
'The definition of services means that "voids" cannot be a service charge: it is neither a service provided nor a facility provided for or made available to an occupier of a dwelling.'
That is correct. I note that she was quoting from the definition in what is now regulation 12(8). The claimant had argued that this charge should be added to the rent. The chairman rejected this argument on the ground that: 'The rent is the rent which was due contractually.' That statement is correct, but it begs the question: what is the rent due contractually?
'In relation to service charges, the evidence before me in the oral hearings has been that the [landlord] was "finding its way". I think it now acknowledges that it put together its service charges in a way which has paid scant attention to Schedule 1 '
In those circumstances, I consider that the chairman should have looked at the substance rather than the form of the tenancy. Having done so, she should have included the charge for voids in the rent for the purposes of regulation 12(1)(a). As the chairman acknowledged in Appendix 3, landlords do take this into account as an element in fixing a rent, albeit along with other factors.
Long-term maintenance
Conclusion on charges
The legislation
'in deciding what is suitable alternative accommodation, the relevant authority shall take account of the nature of the alternative accommodation and the facilities provided having regard to the age and state of health of all the persons to whom paragraph (10) applies and, in particular, where a claimant's present dwelling is occupied with security of tenure, accommodation shall not be treated as suitable alternative accommodation unless that accommodation will be occupied on terms which will afford security of tenure reasonably equivalent to that presently enjoyed by the claimant'.
'no deduction shall be made under paragraph (3) unless suitable cheaper alternative accommodation is available and the authority considers that, taking into account the relevant factors, it is reasonable to expect the claimant to move from his present accommodation.'
The 'relevant factors' are listed in regulation 13(9)(b):
'the relevant factors in paragraph (4) are the effects of a move to alternative accommodation on
(i) the claimant's prospects of retaining his employment; and
(ii) the education of any child or young person referred to in paragraph (4)(d) if such a move were to result in a change of school.'
What the tribunal did
Bricks and mortar
Legal and evidential burdens
Creating an evidential burden
Signed on original on 05 February 2008 |
Edward Jacobs Commissioner |