Housing benefit - Entitlement - Sheltered accommodation - Claimant in receipt of housing benefit

Basey (by his litigation friend) v Oxford City Council: CA (Civ Div) (Lord Justices Mummery, Sullivan): 15 February 2012

The claimant, who was born in 1949, had severe learning difficulties. He was one of four tenants of a housing association property, all of whom had similar difficulties.

Each tenant had his own bedroom but all other areas of the property were shared. The property was staffed 24 hours a day to provide care, support and supervision. An issue arose as to the calculation of the claimant’s housing benefit pursuant to section 130 of the Social Security Contributions and Benefits Act 1992 and proceedings were commenced. The total sum at issue in the claimant’s case was £19.50 per week, although there were many other persons in similar situations. The First-tier Tribunal (Social Entitlement Chamber) concluded that the claimant did not reside in sheltered accommodation for the purpose of the Housing Benefit Regulations 2006, SI 2006/213. Consequently, he was not entitled to have his share of the costs of fuel for, and cleaning of, the rooms of common use in his accommodation included in his eligible rent for the purpose of calculating his housing benefit. The claimant’s appeal was allowed by the Upper Tribunal (Administrative Appeals Chamber). The defendant local authority appealed.

It submitted that, in the absence of any statutory definition, the words ‘sheltered accommodation’ had to be given their ordinary and natural meaning. That meaning could readily be ascertained by reference to the dictionary definition of sheltered accommodation, and more particularly by evidence of common usage, especially among those organisations responsible for assisting the vulnerable. Further, examination of that material demonstrated that sheltered accommodation could be distinguished from other types of supported accommodation because of the existence of six common features (see [14] of the judgment). Consideration was given to sub-paragraph 1(g) of schedule 1 to the regulations. The appeal would be dismissed.

The act envisaged that housing benefit might be paid in respect of residential accommodation that was not self-contained (section 137(1)). The fact that special provision was made in schedule 1 to the regulations for rooms of common use in sheltered accommodation suggested that self-containment in such accommodation was not essential for the purpose of the regulations. ‘Sheltered accommodation’ was a term which parliament had deliberately chosen to leave undefined. It was clear that the statutory scheme gave preferential treatment to the occupiers of sheltered accommodation who were entitled to be paid housing benefit in respect of the costs of fuel for, and cleaning of, both common rooms and communal areas.

The need for communal rooms varied from scheme to scheme, but it would not have been consistent with the statutory purpose to exclude from the definition of sheltered accommodation those very sheltered housing schemes where the need for communal rooms to provide adequate accommodation for those who were less able to manage on their own was even greater then in other forms of sheltered accommodation (see [17], [31], [32], [37], [38] of the judgment).

Sub-paragraph 1(g) of schedule 1 to the regulations excluded from eligibility for housing benefit any service charges which were not connected with the provision of adequate accommodation. Day-to-day living expenses were excluded, by virtue of paragraph 1 of schedule 1 to the regulations, from eligibility but ensured that service charges which related to the provision of adequate accommodation were eligible to be met by housing benefit. The regulations made the broad assumption that communal rooms tended to be necessary in sheltered accommodation to provide adequate accommodation for those who were likely to need sheltered accommodation (see [31], [32], [37], [38] of the judgment).

The Upper Tribunal’s conclusion that the type of accommodation occupied by the claimant had been sheltered accommodation for the purpose of the regulations had been correct (see [33], [37], [38] of the judgment).

Per curiam: At one end of a broad spectrum, sheltered accommodation is distinguishable from ‘ordinary’ accommodation because it will incorporate particular features which are not normally found in ‘ordinary’ accommodation and are designed to meet the needs of occupiers who are vulnerable in some way, often by reason of age, and increasingly by reason of disability. At the other end of the spectrum a care home is not sheltered accommodation. The occupiers of a care home may well need a greater level of care than is available in very sheltered accommodation… but the level of care may well be determined more by personal choice and/or availability, or more probably lack of provision in a particular area.

The emphasis in a care home will usually be rather more on care than accommodation, and this will normally be reflected in the basis upon which such accommodation is occupied. Typically, the occupiers will occupy their rooms under licence. Of particular importance for present purposes - eligibility for housing benefit in respect of service charges for heating, lighting and cleaning common rooms in sheltered accommodation - those having exclusive possession of their own living space within that sheltered accommodation will be in occupation, and will be liable to pay the rent and service charges which are eligible for housing benefit, pursuant to a tenancy (per Sullivan LJ at [34], [35] of the judgment).

Daniel Kolinsky (instructed by CPAG Solicitors) for the claimant; Arthur Moore and Dean Underwood (instructed by Oxford City Council) for the authority.