HB: Case Law Archives | Supported Housing

Wigan MBC v VF [[2009] UKUT 28 (AAC)]

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Case Overview

1. This Upper Tribunal (Administrative Appeals Chamber) case, CH/1615/2008, involved an appeal by Wigan Council against a decision by an appeal tribunal.

2. The central issue is whether a weekly charge of £58.19, designated for a “sleep in/support room” in a tenancy agreement for a claimant with learning disabilities, was eligible for housing benefit. The claimant required 24-hour care, support, or supervision, necessitating an overnight carer.

Key Parties

Appellant: Wigan Council (“the Council”)
Claimant/Respondent: A single woman (aged ~29) with learning disabilities, represented by her solicitor, Mr. Simon Ennals.
Landlord: Partners Foundation Ltd (“PFL”), a not-for-profit organisation specialising in accommodation for people with learning disabilities.
Secretary of State: Joined as a party to the appeal.

Core Factual Background

3. The claimant suffered from learning disabilities requiring 24-hour care, support, or supervision, including an overnight presence in her accommodation.

4. On June 24, 2005, the claimant was granted a tenancy of a 2-bedroom house in Wigan by PFL.

5. The tenancy agreement was a “standard form agreement designed for shared accommodation” (Para. 18), despite the claimant being the sole tenant and occupant.

6. Clause 1b of the agreement stated the tenant had “sole use of own room and shared use of the communal areas,” defining communal areas as lounge, kitchens, dining, halls, passages, bathrooms, and WC. Crucially, it did not explicitly grant the claimant rights to the second bedroom.

7. Clause 2a detailed the weekly charge:

Rent: £61.74
Property Services: £38.31
Support Charges: £73.28 (This sum included £15.09 for “rental liability – claiming benefits” and £58.19 for “provision of sleep in/support room”).
Total Weekly: £173.33

8. The intention behind the £58.19 charge was for the second bedroom to be used by persons providing overnight care, supervision, and support (Para. 8).

9. The bulk of the actual care services were not provided by PFL, the landlord, but by others (Para. 11).

10. The accommodation was treated as “exempt accommodation” under Housing Benefit (General) Amendment Regulations 1995 (Reg. 10(6)), meaning it was exempt from restrictions determined by a rent officer (Para. 10, 12).

The Council’s Decision and Argument

11. Wigan Council decided on February 19, 2006, that only the “Rent” (£61.74) and “Property Services” (£38.31) sums were eligible for housing benefit.

12. The £58.19 for the “sleep in/support room” was deemed ineligible for housing benefit (Para. 9, 15).

13. The Council contended that this £58.19 element was “a charge for care and support” rather than an “accommodation charge” (Para. 34). They argued “the provision of a room for a carer to sleep in is just as much a part of the care package as the services that the carer provides” (Para. 35).

The Claimant’s Argument

14. The claimant’s representative put forward two main arguments to the Tribunal:

15. Primary Argument: The charge was “in reality rent” and the tenancy agreement was “inappropriate” (Para. 18). The claimant was always the “only tenant and occupant of the house” with “exclusive possession of the whole property” (Para. 19).

16. Carers entered as the claimant’s direct employees with her permission.

17. Evidence from PFL’s tenant liaison officer confirmed the original agreement was “misleading” and the claimant’s tenancy “was, and had always been, of the whole house, and was not limited to only part of the property” (Para. 20-21).

18. The £58.19 charge was an “artificial separation” of a necessary accommodation charge, calculated based on the proportional square footage of the room (Para. 21).

19. The second room was “necessary accommodation to enable [the Claimant] to live independently” due to her need for 24-hour supervision (Para. 21).

20. Alternative Argument (if a service charge): It did not fall into any ineligible categories under Schedule 1 to the 1987 Regulations (Para. 19).

The Tribunal’s Decision (First Instance)

21. The Tribunal accepted the claimant’s primary contention.

22. It held that the £58.19 charge was “in reality rent” (Para. 17, 21).

23. They concluded the accommodation was for the claimant’s “sole occupancy” and the extra room was “necessary accommodation to enable [the Claimant] to live independently” (Para. 21).

24. They found the separation of the charge “artificial” and believed the tenancy agreement, being a standard form for shared accommodation, did not reflect the reality of the arrangement for a sole tenant (Para. 21).

Upper Tribunal’s Analysis and Conclusion (Judge Charles Turnbull)

25. Judge Turnbull dismissed the Council’s appeal, agreeing with the Tribunal’s outcome, primarily on the basis that the tenancy agreement did not accurately reflect the parties’ intention that the claimant had a tenancy of the whole house.

Key Legal Principles Applied

26. Regulation 10(1) of the Housing Benefit (General) Regulations 1987: Specifies payments eligible for housing benefit, including “payments of, or by way of, rent” (10(1)(a)) and “payments of, or by way of, service charges payment of which is a condition on which the right to occupy the dwelling depends” (10(1)(e)).

27. Regulation 10(7) and Schedule 1: Defines “service charges” and lists “ineligible service charges.”

28. “service charges” includes “periodical payments for services, whether or not under the same agreement… or whether or not such a charge is specified as separate from or separately identified within other payments” (Para. 13).

29. Ineligible service charges include those for “day-to-day living expenses,” “nursing care or personal care” (1(e)), and “general counselling or other support services” (1(f)), as well as “any services not specified… which are not connected with the provision of adequate accommodation” (1(g)).

30. Distinction between “Rent” and “Service Charge”: “Rent” is consideration for the right to occupy the property (Para. 26).

31. “Service charge” is payment for services, facilities, or rights provided by the landlord (Para. 26).

32. Nomenclature is not Conclusive: The way parties describe a payment in a tenancy agreement is not determinative of whether it is “rent” or a “service charge” for housing benefit purposes (Para. 24).

33. “Dwelling which he occupies as his home”: Housing benefit is payable for payments “in respect of the dwelling which he occupies as his home” (Reg. 10(1), Para. 23).

34. Rectification of Agreement (Implied): The Tribunal was entitled to find that the precise form of the tenancy agreement “did not represent the parties’ intentions,” allowing it to be treated as if it were a letting of the whole house (Para. 31). Evidence that rectification could be obtained if sought is sufficient.

Upper Tribunal’s Reasoning

35. Primary Finding – Agreement Misrepresented Intent: Judge Turnbull found that the Tribunal was “entitled to make that finding, on the evidence before it,” that the tenancy agreement did not accurately represent the parties’ intention that the claimant had a tenancy of the whole house (Para. 31).

36. The landlord’s own tenant liaison officer’s statement confirmed the agreement was “misleading” and the tenancy “had always been, of the whole house” (Para. 20, 31).

37. Given this, the Tribunal was “right to conclude that the Claimant’s entitlement to housing benefit was required to be decided on the footing that the extra room had been comprised in the tenancy, and that the payment in respect of it was therefore properly to be regarded, for the purposes of regulation 10, as rent” (Para. 31).

38. If the entire house had simply been let to the claimant with the second bedroom included in the rent, “it would have been clear that the entirety of that sum was ‘rent’ and was eligible for housing benefit” (Para. 25). The actual drafting did not align with this policy.

39. Alternative Finding – If a Service Charge, it’s Eligible: Although the primary finding resolved the appeal, Judge Turnbull also considered the alternative argument (Para. 32):

40. The £58.19 charge was not for “nursing care or personal care” (1(e)) or “general counselling or other support services” (1(f)) because “those services are not provided by the landlord. The carer is employed and paid for by others” (Para. 32). The charge is “in respect of the provision of a room” (Para. 33).

41. It also did not fall under the general ineligible category 1(g) (services “not connected with the provision of adequate accommodation”). Judge Turnbull found that “it is reasonably clear that it is connected with the provision of adequate accommodation.” He cited Commissioner Mesher (CIS/1459/1995), stating that “the question of connection with the provision of adequate accommodation under paragraph 1(g) should not be confined to the character of the accommodation, but should take account of the personal needs of the residents” (Para. 33).

42. “Accommodation with only one bedroom would have been unsuitable for the Claimant’s purposes” due to her need for sleep-in support (Para. 33).

43. The policy embedded in the regulations, while generally excluding the cost of care, “does not seem to me that it covers, in the case where sleep-in support is required, the cost of additional accommodation necessary to provide that support” (Para. 34).

Most Important Ideas/Facts

44. Substance Over Form: The designation of a payment in a tenancy agreement (e.g., “rent” vs. “support charge”) is not conclusive for housing benefit purposes; the underlying reality and parties’ true intention govern.

45. Accommodation Needs for Care: Where a person with disabilities requires overnight care, the provision of a separate room for the carer can be considered a necessary part of “adequate accommodation” for the claimant, even if it is not directly occupied by the claimant themselves.

46. Distinction Between Accommodation Costs and Care Costs: The cost of the room for a carer is distinct from the cost of the care services provided by that carer, especially if the landlord does not provide the care. Housing benefit policy aims to cover accommodation costs, not care services.

47. “Exempt Accommodation” Significance: For “exempt accommodation,” housing benefit determinations are not subject to rent officer restrictions and instead (at the relevant time) relied on the 1987 Regulations as of 1996, which focused on the “rent” vs. “service charge” and “eligible” vs. “ineligible” distinction.

48. Support for Independent Living: The need for a sleep-in carer allows the claimant to live “as independently as possible in self-contained accommodation,” making the additional room a crucial component of their living arrangement (Para. 2).

Quotes from the Judgment

49. “The Claimant is a single woman now aged about 29 who suffers from learning disabilities to the extent that she requires a person to be providing care, support or supervision on a 24 hour basis. That means that, in order to enable her to live as independently as possible in self-contained accommodation, she requires someone to sleep in that accommodation overnight.” (Para. 2)

50. “The description which the parties give to a payment in the tenancy agreement cannot be conclusive as to whether it is to be viewed as ‘rent’ or as a ‘service charge’ for the purpose of regulation 10 and Schedule 1.” (Para. 24)

51. “The extra room therefore was used by an overnight supervisor who needed to be in the building. It therefore appeared to the tribunal that it was necessary accommodation to enable [the Claimant] to live independently.” (Para. 21)

52. “Evidence will be provided from PF staff that it has always been recognised that the tenancy agreement does not reflect the reality of the arrangement, and that [the Claimant] has always been the tenant of the entire property.” (Para. 19)

53. “I explained that [the Claimant’s] tenancy agreement was misleading in the use of the term communal area, which cannot exist in a property for one person. … We agreed that [the Claimant’s] tenancy was, and had always been, of the whole house, and was not limited to only part of the property.” (Para. 20-21)

54. “Accommodation with only one bedroom would have been unsuitable for the Claimant’s purposes. As Mr Commissioner Mesher concluded in para. 17 of the common Appendix to CIS/1459/1995, ‘the question of connection with the provision of adequate accommodation under paragraph 1(g) should not be confined to the character of the accommodation, but should take account of the personal needs of the residents.'” (Para. 33)

55. “Whilst that policy undoubtedly covers the actual cost of paying for the care provider, it does not seem to me that it covers, in the case where sleep-in support is required, the cost of additional accommodation necessary to provide that support.” (Para. 34)

56. This case highlights the judiciary’s willingness to look beyond the literal wording of a tenancy agreement to ascertain the true intent and reality of the living arrangement, particularly in cases involving vulnerable individuals with specific needs for independent living with support.

SH v LB Tower Hamlets (HB) [[2011] UKUT 500 (AAC)]

Case Summary

1. This case concerns an appeal by a claimant, SH, against a decision by the London Borough of Tower Hamlets to deny her housing benefit. The Council argued that SH had intentionally deprived herself of capital by gifting her flat to her sister and therefore was not entitled to assistance. The First-Tier Tribunal upheld the Council’s decision, concluding that obtaining housing benefit was a “significant operative purpose” in SH’s decision to gift the flat. This decision was appealed to the Upper Tribunal.

Key Themes and Issues

Deprivation of Capital

2. The central issue revolves around whether SH intentionally deprived herself of capital (the flat) to become eligible for housing benefit. Housing benefit regulations often disqualify individuals with substantial capital assets.

Purpose vs. Consequence

3. The legal crux of the case is differentiating between the purpose of an action and its consequence. The Upper Tribunal Judge Mark argues that simply knowing housing benefit might become available as a consequence of disposing of capital does not necessarily mean the purpose of the disposal was to obtain that benefit.

4. As stated in paragraph 9:
“It does not follow… even if they are aware of the existence of housing benefit and the capital limits, that they have deprived themselves of the capital which they have paid out and lost ‘for the purpose of securing entitlement to housing benefit’.”

5. Further, paragraph 8 states:
“…it does not appear to me that such presumed intention is the same as purpose.”

Mixed Motives

6. The First-Tier Tribunal considered that even if the claimant had mixed motives, the intention to obtain benefits only needs to be a “significant operative purpose” to disqualify the claimant. The Upper Tribunal judge finds the original tribunal’s reasoning “confused”.

Reasonableness

7. The First-Tier Tribunal used a “reasonableness” test, drawn from a previous case (CJSA/1425/2004), to determine if obtaining benefits was a significant operative purpose. The Upper Tribunal Judge Mark explicitly disapproves of the approach in CJSA/1425/2004 and asserts that the reasonableness of the claimant’s conduct is less relevant if obtaining housing benefit was the principal operative purpose.

Inconsistency in Reasoning

8. Judge Mark identifies several inconsistencies in the First-Tier Tribunal’s reasoning. For instance, if SH’s primary motive was to obtain housing benefit, it is unclear why she would give away a mortgage-free flat where she lived rent-free, requiring her to then seek rented accommodation and claim benefits. Also, the judge questions how she could know so much about benefits (as the Tribunal assumes) but be unaware of the rules around “notional capital”.

Unreasonable Conduct vs. Intent

9. The Judge gives illustrative examples of litigants or business people who make bad decisions that impoverish them. The Judge is clearly concerned that the original tribunal was conflating unreasonable conduct with evidence of a purpose to obtain benefit.

10. Paragraph 9 states:
“The actions of these litigants and businessmen are unreasonable and their expenditure and losses are the almost inevitable consequence of their unreasonable conduct. It does not follow, however… that they have deprived themselves of the capital which they have paid out and lost ‘for the purpose of securing entitlement to housing benefit’.”

Important Facts & Details

11. SH purchased her flat under the right to buy scheme in 2002 and paid off the mortgage by 2007.

12. In early 2008, she transferred the flat to her 19-year-old sister for no consideration but continued to live there.

13. Her stated reasons for the gift were initially that her sister had been good to her, then later that her husband found it culturally unacceptable to live in a house owned by his wife (although she had trouble explaining why it was acceptable to live in a house owned by her sister).

14. Her husband suffered from mental illness (paranoia, schizophrenia, and psychosis).

15. SH and her husband separated a few months after the gift.

16. She had savings of over £9,000 at the time of the gift.

17. SH was working for the Council, presumably with some knowledge of housing benefit rules.

18. She fell out with her sister in July 2009 and was asked to leave the flat.

19. She applied for housing benefit in August 2009.

20. The judge acknowledges that SH may not have been totally frank with the Council or the tribunal regarding the motive for the gift and the husband’s employment.

Outcome

21. The Upper Tribunal allowed the appeal, set aside the First-Tier Tribunal’s decision, and remitted the case to be reheard by a new tribunal. The judge found the First-Tier Tribunal’s reasoning “defective in law” and expressed no view as to the likely outcome of the new hearing.

Implications

22. This case highlights the importance of carefully considering the purpose behind disposing of capital when determining eligibility for housing benefit. Tribunals must avoid conflating unreasonable behaviour or awareness of benefit rules with a deliberate intention to manipulate the system. It also highlights the need to consider alternative explanations for conduct which appears, on the face of it, to be intended to generate entitlement to benefit.

23. The case is particularly interesting in that the Judge raises the possibility of cultural explanations for behaviour not being properly considered by the original tribunal.

CA v Hastings BC (HB) [[2022] UKUT 57 (AAC)]

Case Overview

1. This document summarises the decision of the Upper Tribunal (Administrative Appeals Chamber) in the case of CA v Hastings BC [2022] UKUT 57 (AAC). The appeal concerns the appellant’s entitlement to Housing Benefit and whether the First-tier Tribunal (FTT) erred in law by upholding Hastings Borough Council’s decision that the appellant possessed capital exceeding the prescribed limit of £16,000, leading to an overpayment recovery demand. The Upper Tribunal (UT) found that the FTT did err in law.

Key Issues

2. Capital Limit Exceeded: The central dispute revolves around whether the appellant possessed capital (specifically, the value of his shares in a limited company) exceeding the £16,000 limit stipulated in Regulation 43 of the Housing Benefit Regulations 2006, resulting in the overpayment.

3. The respondent (Hastings BC) originally determined that the appellant’s income exceeded the limit and later determined the appellant’s share in the company as of August 21, 2017, was valued at £40,000 (well over the limit).

4. Valuation of Company Shares: A significant point of contention is how to value the appellant’s shareholding in the company. The FTT determined the value of the company based on what an investor was willing to pay for a percentage of the shares, concluding the appellant’s share was worth £40,000.

5. The FTT stated that “the value of a company is ‘what someone is willing to pay for it’.”

6. Regulation 49(5) and (6) of the Housing Benefit Regulations 2006: This regulation, crucial to the UT’s decision, concerns individuals who stand in a position analogous to that of a sole owner or partner in a company. Critically, this regulation allows for the value of their holding to be disregarded under certain circumstances, specifically if they are actively involved in the business.

7. Regulation 49(5): “Where a claimant stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, he may be treated as if he were such sole owner or partner and in such a case—(a) the value of his holding in that company shall, notwithstanding regulation 44 (calculation of capital) be disregarded; and (b) he shall, subject to paragraph (6), be treated as possessing an amount of capital equal to the value or, as the case may be, his share of the value of the capital of that company…”

8. Regulation 49(6): “For so long as the claimant undertakes activities in the course of the business of the company, the amount which he is treated as possessing under paragraph (5) shall be disregarded.”

Upper Tribunal Decision and Rationale

9. The Upper Tribunal allowed the appeal and remitted the case back to a new panel of the First-tier Tribunal for a complete rehearing. The primary reason for this was the FTT’s failure to consider Regulations 49(5) and 49(6) of the Housing Benefit Regulations 2006. The UT found this to be an error of law.

10. The UT Judge noted the FTT was not made aware of the regulation.

11. The UT determined that based on FTT findings, “The Claimant’s position was, on the findings made at paragraphs 8-12 of the Tribunal’s reasons, analogous to that of a partner in the business of the company…” The appellant worked substantial hours and had significant influence on the company.

12. The UT also highlighted the discretionary nature of Regulation 49(5), noting the FTT never addressed whether, if the appellant was in a partner-like position, he ought to be treated as such for the purpose of calculating his capital.

13. The UT emphasised that even if the capital calculation were changed due to considering Regulation 49(5) and (6), the First-Tier Tribunal would still need to consider the appellant’s income level to determine housing benefit eligibility. The FTT had not previously made any factual findings regarding income.

Key Arguments and Evidence

14. Appellant’s Argument: The appellant consistently disputed the valuation of his shareholding, arguing the company was not worth the amount attributed to it by the Respondent. He highlighted the precarious financial state of the company.

15. Respondent’s Argument: The council argued that the appellant’s shareholding should be valued based on what the investor was willing to pay and that the appellant’s income exceeded acceptable limits. They argued the appellant was not a “sole owner”.

16. Valuation Tribunal Decision (Council Tax Reduction): The Valuation Tribunal, in a related Council Tax Reduction appeal, did consider the equivalent of Regulation 49(5) and (6) and determined that the appellant’s capital holding should be disregarded because he was undertaking activities in the course of the company’s business. The Council disagreed with this ruling.

Directions for the First-tier Tribunal on Remittal

17. The Upper Tribunal directed the new FTT panel to address specific questions:

Did the Appellant at the material time stand in relation to the company in a position analogous to that of a partner in the business of the company?
If so, ought he to be treated for the purposes of the Tribunal’s decision on the appeal as if he were such a partner?
If so, what is the amount of capital which he is to be treated as possessing, applying Regulation 49(5)(a) and (b)?
If the Appellant is to be treated as possessing capital by reason of those provisions, did the Appellant at the material time undertake activities in the course of the business of the company, resulting in the capital amount arrived at by the application of Regulation 49(5) being disregarded?”

Conclusion

18. The Upper Tribunal’s decision emphasises the importance of considering all relevant regulations, especially those that could potentially lead to a disregard of capital assets for Housing Benefit eligibility. The case has been remitted for a complete rehearing, requiring the First-tier Tribunal to assess the appellant’s position in relation to the company and the applicability of Regulations 49(5) and (6) of the Housing Benefit Regulations 2006, as well as the appellant’s income.