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    [2007] UKSSCSC CH_779_2007 (17 August 2007)
    Commissioner's Case No.: CH/779/2007
    Appellant: London Borough of Hounslow
    Respondent: Ms Jade Whitmore
    Tribunal: Ealing
    Tribunal hearing date: 12 October 2006
    Tribunal register no.: U/42/173/2006/00891

  1. This is an appeal by the London Borough of Hounslow ("the Council"), brought with the permission of a legally qualified panel member, against a decision of an appeal tribunal sitting at Ealing, made on 12 October 2006. For the reasons set out below that decision was in my judgment erroneous in law and by way of interim decision I set it aside.
  2. The Claimant is a woman now aged 22 who has a learning disability. She is in receipt of the highest rate of the care component and the lower rate of the mobility component of disability living allowance.
  3. Until 17 October 2005 the Claimant lived with her parents, but on that date she was granted a tenancy of a bedroom, together with shared use of a living room, kitchen and bathroom, in a three bedroomed semi-detached house in Isleworth. The landlord is Golden Lane Housing Ltd ("GLH"), a company limited by guarantee which is a registered charity and which was established by Mencap in 1998 in order to provide housing for people with a learning disability. The tenancy is an assured shorthold weekly tenancy and was at an initial rent of 254.90 per week, with a provision that the rent should increase on 1 April 2006 (apparently to such amount as should be notified to the Claimant by GLH) and on each subsequent 1 April. At least one of the other bedrooms in the house is, as I understand it, occupied by a person who also has a learning disability.
  4. On 8 July 2005 the rent officer had determined that the local reference rent in respect of the dwelling now occupied by the Claimant pursuant to her tenancy was 150 per week. As I understand it, however (see p. 50), housing benefit was initially awarded to the Claimant in the full amount of the contractual rent of 254.90 per week. On 17 February 2006 GLH gave notice to the Claimant that the rent would increase to 258.04 per week with effect from 3 April 2006. As a result, the Claimant applied for an increase in the amount of housing benefit, and a decision appears to have been made by the Council on 4 May 2006 which has been treated by both parties as being that housing benefit was limited to the amount of the local reference rent of 150 per week, on the ground that the Claimant's dwelling (i.e. the room occupied by her together with use of the shared accommodation) was not "exempt accommodation" within the meaning of para. 4(10) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. Exempt accommodation is there defined as accommodation which is
  5. "provided by a non-metropolitan county council a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision."
  6. For a summary of the background to this legislation, reference should be made to paragraphs 9 to 13 of my decision in CH/3811/2006. The ground for the Council's decision was that neither GLH nor a person acting on its behalf was providing the Claimant with care, support or supervision.
  7. The Claimant appealed against the Council's decision. In the written submission in support of the appeal, prepared by Mr. Simon Ennals, a solicitor specialising in welfare and community care law, it was accepted that the bulk of the care and support provided to the Claimant is provided by another body known as Owl Housing, and that it is not provided "on behalf of" GLH within the above definition of "exempt accommodation". The contention in the submission was that GLH itself does provide some housing related "support" to the Claimant, and therefore that the definition is satisfied.
  8. The Tribunal accepted that contention and allowed the appeal. The Council sought permission to appeal to a Commissioner, contending that the definition was not satisfied unless the landlord had "overall responsibility" for the provision of support services, and seeking clarification of "what measure of care, support or supervision must be provided by the landlord for the property to be exempt accommodation."
  9. As I have said, a legally qualified panel member gave permission to appeal. Meanwhile, however, on 7 March 2007 I decided CH/3811/2006, in which I sought to give some further guidance as to the effect of the definition of "exempt accommodation". In particular, I rejected contentions that the landlord must be the main provider of the support, and that it must be provided pursuant to a contractual or statutory obligation on the part of the landlord, but held the support provided must be more than de minimis (see paragraphs 21 to 23). I found that on the evidence in that case the support provided by the landlord to the Claimant was not more than de minimis.
  10. The Tribunal in the present case had before it the documentary evidence and in addition heard evidence from two employees of GLH as to the support provided to its tenants. The Tribunal's findings of fact as to the support provided by GLH were as follows:
  11. "GLH provide support to all their tenants for no additional charge in the following manner:
    a. By liaising with the support provider and social services/support commissioner and other professions to ensure that support and housing remains appropriate to the needs of the tenant.
    b. Encouraging the tenants to attend participation meetings.
    c. Giving advice on dealing with police and the courts.
    d. Assisting tenants in arranging for tradesmen to undertake work.
    e. Arranging adaptations to cope with disability.
    f. Dealing with neighbours and tenant disputes.
    g. Assisting and providing advice in relation to housing related welfare benefits.
    h. Assisting with minor maintenance matters.
    i. Liaising with relatives.
    j. Undertaking re settlement activities.
    This support is set out in the agreement between [the Council] (Social Services Department) and GLH.
    The support specifically provided to [the Claimant] has been to encourage her to take part in a tenants participation group which assists [the Claimant] to:
    (a) take part in a "social event"
    (b) help her gain skills by learning to speak up
    (c) helps her to be part of the stake holder group leading to a change in the manner GLH provide their service to all their tenants."
  12. The Tribunal's reasons for its decision included the following:
  13. "One of the support systems provided by GLH is running a helpline for all their tenants, tenants can ring up not just about management repairs but other issues, for example about getting help with a relationship breakdown, the helpline acts as a sign post assisting the tenants to gain support.
    Ms Hall a housing worker with GLH gave evidence of specific examples of support being provided by GLH for its tenants 143-151. (See g above).
    GLH undertake other support activities for their tenants and in particular for [the Claimant] which is over and above its housing management activities. The support most called upon by [the Claimant] was that to enable her to participate in the Tenant Participation scheme. The support consisted of ensuring that she was taken to tenant participation meetings to enable her to participate. This enable(s) [the Claimant] inter alia to gain more social skills and no doubt grow in confidence.
    The additional support is not paid for by [the Claimant] or the other tenants as part of a "charge" in their rent, but is part of the charitable aims of the charity.
    All the support available from GLH is not taken up by [the Claimant] but is available should she need it, for example the representation at the appeal hearing was funded by GLH, this would fall within g. above "assisting and providing advice in relation to housing related welfare benefits.
    I determine that GLH were providing direct support to [the Claimant] over and above "normal" housing management. GLH are not the main providers of the support and it is clear that they do not provide any care or supervision to [the Claimant].
    On a reading of the regulation, GLH do not have to provide care, support AND supervision. One of the components is sufficient to satisfy the regulation.
    The regulation is silent on what percentage of support, care or supervision is required. On a literal interpretation even if [the Claimant] received less than 1% of support from GLH that would appear to be sufficient to satisfy the regulation.
    I am not in a position to judge in percentage terms the amount of support [the Claimant] received or could potentially receive from GLH, I am however satisfied that she did receive this support from her landlords and that other support was available to her which she could have called upon from her landlords as opposed to those responsible for her care."
  14. I turn first to the Tribunal's findings as to the support which the Claimant had actually received from GLH. The only elements of such support were (a) that she was taken to tenant participation meetings and (b) that her representation at the appeal hearing was funded by GLH.
  15. The Tribunal made no finding as to how often the tenant participation meetings take place, but it appears from the evidence (p.150) that they are quarterly. If that were the only element of support provided, it is in my view very unlikely that it could be regarded as more than de minimis.
  16. It would not have been right, when asking what support had actually been provided, to take into account the provision of representation by GLH before the Tribunal, because it was not provided until after the decision under appeal. (It would, however, in my view be permissible to take it into account as evidence of the sort of support available to her and of which she might wish to make use. (Cf. para. 28 of my decision in CH/3811/2006)).
  17. Looking, therefore, only at the support actually provided, the Tribunal could not in my view, on its findings, properly have found that more than a de minimis amount of support was provided. It is arguable (see the penultimate sentence of the reasons set out above) that the Tribunal's view of the law was that provision to the Claimant of any amount of support, however negligible, is sufficient to render the accommodation "exempt accommodation". If so, that was in my view wrong.
  18. The question is then whether the Tribunal's decision should be upheld on the basis of its additional findings as to the support available to all tenants (as opposed to that which had actually been taken advantage of by the Claimant). I do not think that it can be upheld on that basis.
  19. The question to what extent it is permissible to take into account support which is available to tenants generally, but not taken advantage of by a particular tenant, may be one of some difficulty which requires further consideration. I touched upon it in paras. 31 and 32 of CH/3811/2006. In the case of "care" and "supervision", it seems to me clear that they must actually be provided by the landlord. It is not enough that they are available should the tenant wish to call for them. In the case of "support", however, it may be that the making available of certain types of service itself amounts to the provision of "support".
  20. Even if that be so, however, the support provided must be more than minimal. In determining whether that is so one would need to have regard, in particular, to at least two factors to which in my judgment the Tribunal appears to have had either no or at any rate insufficient regard (and thereby erred in law).
  21. The first is the extent of the support services which are in reality available, having regard to the resources devoted by the landlord to providing it and the number of tenants among whom those resources are spread. The Tribunal referred to the evidence at pages 143 to 151 of the papers as to examples of support, falling within the categories of support which it identified, which had been provided to particular tenants. However, it had no evidence before it as to over what period those examples occurred, as to how many tenants GLH has, or as to how many employees are directly involved in providing this support and how much of their time is spent doing so. (Contrast, for example, the evidence which was available in CH/3811 see para. 29(5) of that decision). It is impossible, on the Tribunal's findings, or even on the evidence before the Tribunal, to gain any real impression as to the level of support which is in practice actually available. It is possible that the position varies somewhat from region to region.
  22. The second factor is the extent to which there is in practice any real likelihood that the Claimant would need the available support. Even if support which is available to tenants generally, but has not been taken advantage of by a particular tenant, is relevant, it must also be relevant also to look at whether in reality the particular tenant is likely to need the support. If, for example, a provider of supported housing were to admit a tenant who clearly has no support needs, the fact that support is theoretically available to him would not mean that support is "provided" to him. A number of the categories of generally available support identified by the Tribunal are categories which the Claimant may, realistically, be very unlikely ever to have needed. I refer to items (c), (e) (i) and (j) in the list set out in para. 9 above. Material to this consideration of what the particular tenant is in practice ever likely to need by way of support is the extent of support available to him (or her) from elsewhere, and in particular (in this case) by way of the support apparently provided by Owl Housing (presumably under a contract with the Council or supporting people administering authority). If the degree of support provided by Owl Housing was such as in reality to leave little or no need for additional support from GLH, that was a highly material factor to be taken into account. To take one particular example, I note that although one of the categories of available support identified by the Tribunal as provided by GLH was that of "assisting and providing advice in relation to housing related welfare benefits", it is in fact clearly contemplated by GLH that in relation to claiming housing benefit tenants will or may be assisted by the care provider: see pages 46 and 54. In my judgment there should have been evidence before the Tribunal (and the Tribunal should therefore have required the parties to provide such evidence) as to the degree of the Claimant's disability, and the extent of the care and support required to be provided to the Claimant by persons other than GLH (and in particular Owl Housing). This is presumably evidenced in documentation. In saying all that I do not overlook that, under Clause 6.1 of the Agreement dated 8 October 2002 (p.85) between the Council and GLH, the latter undertook the provision of the "housing management service", and that the items listed in Schedule 2 as comprising "housing management services" included most of the items relied on by the Tribunal as being available. However, it was in my judgment still relevant to look at the extent of the support required (presumably under contract with the Council) to be provided by others. I note that the asterisked items in Schedule 2 were stated to be provided jointly by GLH and "the provider of care or support or otherwise via [the Council]."
  23. The Tribunal's decision must be set aside as erroneous in law on the above grounds.
  24. At present I consider it appropriate that, rather than the matter being remitted to a fresh appeal tribunal for redetermination, I should make the substituted decision myself, after the parties have had the opportunity to present further evidence, and that I should hold an oral hearing for the purpose of determining what my substituted decision should be. For that reason this is only an interim decision.
  25. In deciding what further evidence to adduce, the parties' advisers will of course have regard to, in particular, paras. 18 and 19 above, and the Claimant's representative will of course bear in mind that the burden lies on the Claimant to establish that support is being provided by GLH. If the Claimant wishes to rely on evidence from the witnesses who gave evidence before the Tribunal their evidence should be given afresh at the hearing before me. It may be desirable that the employee actually responsible for liaising with tenants in the area of this property is also available to give evidence.
  26. I give the following directions in connection with the hearing:
  27. (1) The Council is to send to this Office within one month from the date of issue of this decision copies of any relevant care plans which have been drawn up in relation to the Claimant and of any contracts or any other arrangements between the Council and Owl Housing or others in relation to the provision of care, supervision and support to the Claimant.
    (2) Any further evidence to be relied upon by the parties should be sent to this Office within one month from the date of issue of this decision.
    (3) If oral evidence is to be given at the hearing, statements of the evidence to be given by the relevant witnesses should be sent to this Office within one month from the date of issue of this decision.
  28. Finally, I am of course aware, although no reference has been made to it in this appeal by the representative for the Claimant, that there are on foot two appeals to a Commissioner by tenants of a property in Oxford of which the landlord is also GLH. An oral hearing of those appeals has been fixed for 10 Otober 2007. The tribunal in those two cases held that support was not provided by GLH. If, in those appeals, I were to set aside that tribunal's `decision with a view to substituting my own decision, and if I were to decide to hold a further hearing in that case for the purpose of determining what decision to substitute, it may be that that further hearing should sensibly take place at the same time as the hearing which I have directed above. Although the decision in any particular case must of course depend on the evidence adduced in the case, it is obviously undesirable that decisions should be made relating to tenants of GLH in different parts of the country which are or might appear to inconsistent. For that reason, at present it seems to me that the date for the oral hearing which I have directed above should not be fixed until after the hearing on 10 October 2007.
  29. (signed on the original) Charles Turnbull
    17 August 2007

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