| Case Name | CH/1289/2007 |
| Case law date | 03/07/2007 |
| Commissioner | Commissioner Turnbull |
| Organisations Involved | 1. Bury Metropolitan Borough Council |
| 2. Rehab98 Ltd – Housing provider. |
1. Appeal by claimant against Tribunal decision that his accommodation was not exempt accommodation.
Background
2. The claimant occupied a room in a hostel for homeless people run by the charity Rehab98.
3. Rehab98 previously received local authority funding under Supporting People contracts to provide support services to hostel occupants.
4. This funding was terminated in June 2005 due to concerns over service quality.
5. Rehab98 increased the rent and service charges to residents and contended accommodation was exempt accommodation for housing benefit purposes.
6. The Council decided the accommodation was not exempt as Rehab98 was not providing sufficient care/support.
7. The claimant appealed the Council’s restrictive decision on eligible rent/housing benefit amount.
The Tribunal’s decision
8. The Tribunal dismissed the claimant’s appeal, finding the care/support provided by Rehab98 was minimal or non-existent.
9. It gave several reasons for reaching this conclusion (paras 19 – 25):
- the charge for support services was minimal – the Tribunal concluded, by reference to the breakdown of the rent, that at most £2.50 per week was charged in respect of support and supervision (para 20),
- after staff redundancies, insufficient staff remained to provide more than minimal support (para 21),
- some support activities benefited Rehab98 as much as the claimant (para 22),
- the support provided was no more than that given by social landlords generally, i.e. who do not purport to be providing care, support or supervision in exempt accommodation (para 23),
- the claimant provided only one minor example of support received (para 24),
- the licence agreement did not obligate Rehab98 to provide support (para 25).
Issues and errors identified on appeal
10. The Commissioner allowed the claimant’s appeal, finding the Tribunal’s reasoning was legally flawed (para 26). The following issues and errors were identified on appeal.
Failure to consider subsidy of support services
11. The Tribunal failed to consider that the charity was subsidising support services, so the small charge did not show the true level of support provided.
“The Tribunal did not indicate that it had noted, or say what it made of, the contention which had been made by Mr. Key (p.15) that Rehab98, as a charity, was subsidising the provision of support services.” (para 20)
Insufficient examination of the evidence of support provided
12. The Tribunal should have examined the evidence in more detail regarding the actual time spent supporting residents by the remaining staff.
“However, the Tribunal in my judgment erred in law in stating that as a bald conclusion, without examining in more detail the evidence which had been provided as to the time spent providing support by the three staff who remained (see especially p.50), and as to the fact that “volunteers” from Walker House also worked for a total of 4 hours per week at Woolfield House.” (para 21)
Unjustified conclusions on support benefiting Rehab98
13. It was wrong for the Tribunal to dismiss some support activities as benefiting Rehab98, without analysing which ones or whether others still amounted to support.
“the Tribunal stated that “some of the items on the list of Support Services were for the benefit of Rehab98 at least as much as for the benefit of the appellant.” That is no doubt so, but (a) it does not necessarily prevent such items from amounting to “support” and (b) in any event the Tribunal referred only to “some” of the items, without stating which it referred to and without stating why the other items (if provided) did not amount to the provision of “support”.” (para 22)
Lack of reasoning on claimant’s evidence
14. The Tribunal should have explained why it considered the claimant’s evidence of support to be only one minor example (para 24).
“the Tribunal stated that “the appellant lists support services which he says he receives, but there is only one specific, and very minor, actual example given.” However, the Tribunal did not sufficiently explain what it meant by this.” (para 24)
Support beyond social landlord’s function
15. Certain support activities were clearly more than would be provided by a social landlord performing just a housing management function (para 23).
“None of those [support activities] seem to me to be services which would routinely be provided by a social landlord who was not seeking to go beyond its housing management function.” (para 23)
Licence agreement referring to support
16. The licence agreement referred to support being provided as per the claimant’s individual records.
“the Tribunal stated that the specimen licence agreement contains no obligation on Rehab98 Ltd to provide any care, support or supervision. However, I note that in the “General Terms” the licence agreement states, under the heading “support”…””Upon being accepted into the scheme subsequent to undertaking the prescribed risk assessment, the resident will receive support and supervision as per the requirements of their client records.” (para 25)
The determination of exempt accommodation is specific to the individual claimant.
The decision examines in detail a common misunderstanding regarding the exempt accommodation rules (para 27 – 29). Councils might believe that a building’s “exempt accommodation” status applies uniformly to all occupants. This generalization is problematic for two reasons (para 27):
- the legislation states that the exemption applies to individual dwellings within a building, not the building as a whole;
- the “exempt accommodation” definition hinges on the care, support, or supervision the landlord provides to the individual claimant, making it possible for the status to differ among tenants of the same building.
In cases where a landlord has multiple tenants in a building or across buildings, it’s not always necessary to provide evidence for each tenant individually. A landlord might offer evidence that care levels are similar for all tenants. Alternatively, there could be evidence showing a selection process where only applicants meeting a certain care need are accepted as tenants (para 28).
Need for individualised evidence
17. In the specific case being discussed, the evidence suggests significant variations in the needs of the occupants (para 29) so individualised evidence was required, not just generic statements.
“the evidence in the present case indicates that there may be considerable variety in the needs of occupants of Woolfield House…the evidence very arguably fails to demonstrate that, either because it relates to the occupants generally, or because it consists of statements purportedly from the claimants individually as to the level of support provided to them but which…are in identical or very similar terms” (paras 29)
18. The Tribunal should have heard oral evidence from claimants about the actual support they received.
“I further think that it is likely to be helpful to the new tribunal for there to be an oral hearing at which the claimants (or those whose appeals are selected as lead cases) give evidence and can therefore be questioned as to the support which is actually provided to them.” (para 33)
19. In conclusion, the Tribunal’s cursory reasoning displayed multiple legal flaws and it failed to engage properly with the evidence. The Commissioner was justified in remitting the case to a new Tribunal for rehearing.
Outcome
20. The matter was remitted to a new Tribunal for rehearing due to the errors identified.