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Executive Summary
1. This briefing reviews the key themes and important facts from the Upper Tribunal (Administrative Appeals Chamber) case of DW v Oxford City Council (HB) [2012] UKUT 52 (AAC), focusing on the definition and application of “exempt accommodation” for housing benefit purposes.
1. Case Overview and Significance
2. The case involves an appeal by a claimant (DW), a woman with learning or mental health difficulties, against a First-tier Tribunal decision that her accommodation was not “exempt accommodation”. The significance of this classification is substantial: if deemed exempt, housing benefit is likely payable at a “substantially higher rate” because the local authority cannot restrict the eligible rent based on rent officer determinations or local housing allowance rules. The total housing benefit potentially in issue for the 22 tenants in similar positions was approximately £150,000 per annum.
3. The Upper Tribunal found the First-tier Tribunal’s decision wrong in law and set it aside, re-making the decision to dismiss the Claimant’s appeal. This means the accommodation was ultimately not deemed exempt.
2. Definition of “Exempt Accommodation”
4. The central legal issue revolves around the definition of “exempt accommodation”, which is: “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.”
5. In this case, Renaissance Social Housing Limited (Renaissance) is accepted as a “voluntary organisation”. The dispute centred on whether Renaissance provided the claimant with sufficient “support” to meet this definition, as Oxford County Council (the County Council) provided the bulk of her care and supervision.
3. Factual Background and the 2007 Agreement
6. Claimant’s Accommodation: DW occupies a room in a house under a tenancy granted by Renaissance. Each house accommodates 3 or 4 tenants, with an additional bedroom for an overnight support staff member (provided by the County Council).
7. Prior Arrangement (pre-2007): For some time, Oxford City Council (the City Council) accepted the accommodation as exempt. However, in 2004, the City Council changed its stance, restricting housing benefit. An appeal in 2005 (the “2005 Tribunal”) dismissed the tenants’ appeals, finding that the assistance provided by Renaissance (fortnightly visits, help with housing benefit, pre-tenancy support) was “de minimis” and “do not amount to care, support or supervision”.
8. The 2007 Agreement: A new agreement was signed between Renaissance and the County Council on 17 April 2007. This agreement provided for Renaissance to perform specific services for a payment of £14,430 per annum from the County Council. Crucially, the background to this agreement was the County Council’s “very unusual, and in the long term unsustainable, step of itself paying the difference between the housing benefit allowed and the contractual rent,” which was costing over £150,000 per year. The 2009 Tribunal noted with “surprising candour” that the 2007 Agreement “had been devised specifically to get around the problem of the housing benefit being restricted to the amount of the rent officer determination.”
9. Specific Services in 2007 Agreement (Schedule 1): These included:
10. Assistance with dwelling security.
11. Assistance with dwelling safety.
12. Advising service users on domestic equipment & appliances.
13. Assisting with minor repairs to users’ own equipment.
14. Arranging adaptations to help with disability.
15. Advising & assisting service users in relationships & disputes with neighbours.
16. Advising & assisting tenants with benefit claims & other correspondence.
17. Advising & assisting with move-on accommodation.
18. General Counselling & Support (befriending, advising on tenancy, non-specialist counselling).
19. Contributing to Supervision of Partnership.
20. Renaissance’s New Staff: To implement the 2007 Agreement, Renaissance recruited a specialist staff member, Lynn Campbell, who worked 18.5 hours a week, visiting properties one day and doing administration from home another.
4. The 2009 Tribunal’s Decision and Reasoning
21. The 2009 Tribunal (comprising the same chairman as the 2005 Tribunal) dismissed the Claimant’s appeal, concluding that what Renaissance provided, while “undoubtedly ‘support’”, was “de minimis” after “excluding those Housing Officer tasks which all Housing Officers in social housing provide”.
22. The Tribunal’s detailed findings on the 2007 Agreement categories were:
23. Discounted as “Ordinary Housing Management”: Categories 1 (security), 2 (safety), 5 (arranging adaptations), 6 (relationships and disputes with neighbours), and 8 (move-on accommodation) were largely discounted as being functions “many landlords will undertake, particularly social landlords.”
24. Discounted as Self-Interest/Contractual Obligation: Category 7 (assistance with Housing Benefit) was deemed to be provided by landlords out of “self interest,” and Category 10 (contribution to supervision of partnership) was seen as a “contractual obligation to the County Council,” not support to the tenant.
25. “Potentially Additional Service” but De Minimis: Categories 3 (advising on domestic equipment), 4 (assisting with minor repairs to users’ own equipment), and 9 (General Counselling & Support) were considered potentially “additional,” but the Tribunal found their actual provision to be “de minimis.” For instance, general counselling was deemed unfeasible given Ms Campbell’s limited time and training.
26. The Tribunal also noted that Ms Campbell’s weekly diaries “deal almost exclusively with disrepair” and that County Council monitoring reports indicated “considerable delay by Renaissance in carrying out repairs,” suggesting Renaissance “fell far short of the standard…that the repairing obligation was more onerous than normal.”
5. Upper Tribunal’s Analysis and Key Legal Principles
27. Error regarding Categories 5, 6, and 8: The Upper Tribunal found that the 2009 Tribunal erred in law by discounting these categories on the basis that “social landlords generally would do this,” stating there was “no sufficient evidence for making such a finding.”
28. Adaptations (Category 5): The Upper Tribunal specifically scrutinised the landlord’s obligations under equality legislation (Disability Discrimination Act 1995/Equality Act 2010). It concluded that the landlord’s duty to make “reasonable adjustments” is limited to “auxiliary aids” and does not typically extend to “removal or alteration of a physical feature.” Many of the adaptations Renaissance assisted with went beyond basic statutory obligations for a general needs landlord.
29. Neighbour Disputes (Category 6) and Move-on Accommodation (Category 8): The Upper Tribunal acknowledged that assisting with these issues is “very closely allied to ordinary property management.” However, it noted that if the landlord is letting to “tenants with disabilities…,” then readiness to intervene could qualify as “support.” Yet, the evidence presented was insufficient to demonstrate this level of specific need or the extent of support provided.
30. Meaning of “Support” and “De Minimis”: The word ‘support’ involves the landlord doing something more than or different from the exercise of its ordinary property management functions. The “making available” of support can amount to provision, but there must be “a real prospect that the tenant will find the service of use from time to time.” Support must be more than minimal in likelihood and degree.
31. Intensity of Support Available (Ms Campbell’s Role): The Upper Tribunal acknowledged Ms Campbell’s weekly visits and phone availability, but noted that it was still permissible for the Tribunal to find less than minimal support was provided, given the content and frequency of assistance.
32. Repairs and Maintenance: Repairs must be more onerous than normally expected or outside the landlord’s usual obligations to constitute support. Ms Campbell’s focus on disrepair did not meet this threshold.
6. Upper Tribunal’s Re-Made Decision
33. Despite finding errors in law regarding the discounting of certain categories, the Upper Tribunal re-made the decision and still dismissed the Claimant’s appeal.
34. Specific Examples of Support: For DW, these were discussions on neighbour tensions and a buzzer/door lock modification. Neither was deemed to exceed ordinary housing management or demonstrate more than minimal support.
35. Overall Assessment: Considering support to the claimant and other tenants, the Upper Tribunal was “unable to find that Renaissance was providing support to the Claimant to more than a minimal extent.”
36. The “Scrape Over The Line” Conundrum: The judge acknowledged that borderline situations exist where some landlords may qualify as exempt while others do not, based on slight factual differences. The legal test, however, hinges on whether there is a real, more than occasional need for support, and actual services provided beyond ordinary management.
7. Conclusion
37. The Upper Tribunal’s decision highlights the strict interpretation of “support” in the “exempt accommodation” definition. While the 2009 Tribunal made errors in discounting certain services as mere “ordinary housing management,” the cumulative impact of the actual support provided by Renaissance was still deemed to be “minimal.” The court’s ruling underscores the need for clear, documented evidence of specific services provided that genuinely go beyond standard landlord duties and meet a more than occasional need of the particular disabled tenants. The case also reveals the financial motivations behind the restructuring of services to qualify for higher housing benefit rates.