During the passage of the Housing and Regeneration Act 2008, the Government gave a commitment to look again at the use of inter alia, Ground 8 in the social housing sector.

A group of scholars was assembled for this purpose: Pawson, Sosenko, Cowan, Croft, Cole and Hunter and, they have now reported. I suggest everyone reads “rent arrears management practices in the housing assocation sector” because, frankly, it is an impressive piece of work, detailing historic, current (and hinting at future) trends.

The authors surveyed all housing associations in England, with some 70% responding to the questions raised. Six particular housing associations were chosen to provide detailed case studies and 106 individual eviction files were considered. The headlines are:

(a) mean rent arrears have been falling across the sector, down to 5.3% of collectable rent in the three years to 2007-08. Traditional associations tended to have higher rates of arrears than those involving stock transfer;

(b) housing benefit claimants have – generally – benefited from improved efficiencies in HB administration, with the average number of days to process a new HB claim down to 25, from 33. However, more than a quarter of associations admitted to having issued proceedings in order to pressure the local authority to process a claim;

(c) the rate of rent arrears evictions fell to 2007-08, but experienced a slight increase in 2008-09. Eviction rates varied across the country, with the Midlands having the highest rates and London the lowest;

(d) the majority of associations treated rent arrears recovery as a “specialist” area with staff who, well, specialised in recovery of such monies. Almost half of associations also employ specialist in-house welfare benefit advice staff to assist tenants;

(e) around 25% of associations admitted using Ground 8, although more than 50% of associations in London used it. The most common reason for using Ground 8 was the level of the arrears or where a tenant fails to make contact with the association to discuss the situation.

The report concludes that, were Ground 8 to be abolished, it would not have a significant impact on the arrears carried by HAs.

One final point – could it be that the TSA has delayed in publishing this report? Some of the terminology and phraseology suggests to me that this was ready for publication towards the end of 2009.

Ms Shanahan was tried on three offences under section 111A(1A) of the Social Security Administration Act 1992. These were:

Count 1 between 24 June 2004 and 12 December 2006, she dishonestly failed to notify the London Borough of Croydon of a change in circumstances that she knew would affect her entitlement to housing benefit and council tax benefit, namely that she was in receipt of income through remunerative employment that commenced on or about 24 May 2004.

Count 2, similarly she failed to notify the London Borough of Croydon that she was in receipt of working tax credit from 28 May 2004.

Count 3, similarly she failed to notify the London Borough of Croydon that her child tax credit had increased from 28 May 2004.

At the close of the prosecution case the Defendant’s Counsel made a submission of no case to answer on counts 2 and 3. This was accepted by the Judge and Ms Shanahan was found not guilty on the 1st count. This is the appeal from the decision of the Judge. There is no intent to seek a retrial on these counts but it is an important point of law.

The submission of no case to answer on the 2nd and 3rd count was on the technical point that the receipt of working tax credit and child tax credit were irrelevant. The fact of being employed was already sufficient to reduce Ms Shanahan’s entitlement to Housing and Council Tax Benefit to zero and therefore the additional alleged failures to notify did not create a ‘change of circumstances’ which would trigger notification. Additionally, if the right to receive benefits had already been extinguished then it was not possible for Ms Shanahan to ‘know’ that her entitlement had changed.

The Court found itself bound by a previous Court of Appeal decision in R v Passmore [2007] EWCA Crim 2053 notwithstanding the efforts by Croydon to argue that it was a per incuriam decision or to distinguish the case on its facts. The Court accordingly held that a change of circumstances could not be held to ‘affect’ and entitlement to benefits unless that change would, after calculation, cause the entitlement to change. It therefore dismissed the appeal and ordered Ms Shanahan’s acquittal on the counts 2 and 3.

RF had the good fortune (well, not for RF as it turns out) to appear before Emeritus Professor Nick Wikeley (he of Ogus, Barendt and Wikeley, The Law of Social Security) in his role as a judge of the Upper Tribunal.  RF suffers from Crohn’s disease.  He was sentenced to a term of imprisonment of 12 months on 16 July 2008 and was released on licence on 29 October 2008 (15 weeks later).  It was clear at the time of sentence that his incarceration was to be between 14-17 weeks.  The case concerns the 13 and 52 week rules for HB (Regs 7(13) and 7(16)/(17)).   On the 13 week rule, RF argued that HB should be paid for the 13 weeks, and he would pay the outstanding rent.  The problem was that his incarceration was likely to exceed 13 weeks and, on a literal reading of Reg 7(13) (which requires that the period of absence is unlikely to exceed 13 weeks), Wikeley J found against him on this point: “The approach suggested by the claimant – that the local authority meet his rent for the first 13 weeks and that he meet the balance thereafter – might seem superficially attractive.  However, social security legislation does not generally permit this type of negotiated compromise.  A person is either entitled to benefit or not entitled to benefit” (at [12]).  RF was not entitled.

The 52 week rule, however, was a rather different matter because, on a literal reading, it applied to RF’s case.  The issue was whether his claim fell within Re 7(16)(c)(iii); ie that he was “undergoing, or as the case may be, his partner or his dependant child is undergoing, in the United Kingdom or elsewhere, medical treatment, or medically approved convalescence, in accommodation other than residential accommodation.”  The first tier Tribunal, which had found in RF’s favour on this point, had erred because it had applied an excessively literal approach to this provision.  Wikeley J held that there has to be a connection between the medical treatment and absence from home.  RF was absent from home because he had been incarcerated and not because of his need for treatment.  Express provision is made for certain prisoners in Reg 7(16)(c)(i) and: “The very fact that special provision is made for one class of prisoner is a strong indication that other classes of prisoner are meant to be excluded.  The Latin maxim, and principle of statutory interpretation, “expressio unius est exclusio alterius” (to express one thing is to exclude another) is apt here.  So the very fact that remand prisoners away from home for more than 13 weeks are included in regulation 7(16) is an indication that convicted prisoners are excluded” (at [24]).  Wikeley J then retreats into an excursus on the history of the temporary absence rule, noting the “conversation” (my word, not his) between the SoS and the Social Security Advisory Committee in 1995, which reinforced Wikeley J’s conclusions on the issue.

HN was heard by Lane J (as it turned out, to HN’s very good fortune) and concerned overpayments of HB and CT after HN had said that she was a lone parent between 16/09/02 and 16/01/07.  The first tier Tribunal had held that she had been living with her partner, a finding which Lane J refused to disturb (and did not grant permission to appeal on this point on the basis that Tribunals only ever have circumstantial evidence to go on, the burden of proof is on the authority, and the Tribunal must make a decision on the balance of probabilities [which it had done here]).  The overpayment claimed back was £58,797.14.  Lane J, however, granted permission to appeal on a point not raised by HN which was that the overpayment should be reduced by the entitlement of her partner and by the birth of a further child (Reg 104(1)).  As a result, the overpayment of HB was £3572.26, quite a significant difference and well-spotted by Lane J of his own volition.

One final point: Brent asked if they could recover half of the overpayment against HN’s partner, which was possible under the 1987 Regs.  Lane J said that the new form of Regs did not allow for this save in cases of misrepresentation or failure to disclose a material fact (not applicable here).  However, “The Authority does have a discretion to recover from a partner under regulation 102(1ZA) in certain circumstances.  This provision is probably applicable at the enforcement stage, not least because (i) only a discretion is given, and (ii) any decision under this regulation 102 is not appealable to a tribunal (paragraph 1, Schedule, Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001)”.

The ongoing issue is one in which Sheffield has been attempting to assess H’s entitlement to housing benefits. Essentially this is carried out by the rent officer deciding what is the highest and lowest rents a landlord might reasonably expect to obtain in the locality for an assured tenancy of a property of a similar size and state of repair as the target property and then taking an average. This forms the reference rent by which the benefit entitlement is calculated. In doing this the Rent Officer should disregard rents which he deems to be exceptional and should also exclude any distorting effects on the market caused by the availability of housing benefits as he should assume for the purpose of determining the high and low range rents that the person seeking to rent is not in receipt of nor seeking housing benefit.

After an earlier appearance before the House of Lords (as it then was), which was reported on by NL here, the House ruled on the meaning of locality and how far it could stretch. In that case the decision by the rent officer that a locality could include the whole of Sheffield was held to be wrong and it was ruled that the officer should have regard to the statutory minimum number of neighbourhoods (two including the one in which the target property is) but that adding more requires justification by their being insufficient numbers of properties in the reference neighbourhoods to allow calculation of the high and low rent levels. The Lords held that the rent officer had erred (actually they were less nice than that) in adding more neighbourhoods without such a justification and sent the matter back to Sheffield for them to recalculate the reference rent in the light of their decision.

Basically, H is not happy with the new calculation and has returned to the fray in Heffernan v Rent Service [2009] EWHC 3539 (Admin) on the basis that the new calculation is also unlawful. Ultimately the issue is that the reference rent has been set at about £500 pcm while H is paying £700 pcm.

Phew, background over!

H contended that the new assessment was reached unlawfully or, alternatively, was insufficiently explained to comply with the law. At the nub of the argument was the manner in which the rent officer excluded high and low field properties as exceptional.

At the upper end of the scale, in his determination of the proper figure in 2004 the rent officer concluded that there was a plateau in rents at about £600 pcm above which there were 16 properties. There was then a marked rise until there was a further plateau at £650 pcm above which there were 16 properties. The rent officer took the lower plateau (at £600 pcm) as the limit of reasonableness and classified all 16 properties above that as exceptional and therefore excluded them from the calculation. He found support from the fact that there were 2 other benefit supported rents at £600 pcm but none above. In 2005 a similar determination occurred and the plateau figure was found to be at £650 pcm. H argued that this was wrong and stated that the exclusion of 16 properties from a sample of just 111 demonstrated that the 16 properties were not really so exceptional. It was therefore argued that this exclusion was irrational, and if rational, was not supported by sufficient reasoning and therefore the decision was insufficiently explained.

In regard to the low figure the rent officer found an unsupported rent at £317 pcm which had a number of benefit supported rents at the same level. He also found a plateau at £300 pcm followed by a steep drop to £260 pcm. The officer concluded that although most rents at £300 pcm were benefit supported the availability of benefit was not distorting the market and that the rent at £317 pcm was not exceptionally low and thus he set the low figure at that level. H argued that the fact that there was only one unsupported rent at £317 pcm was in itself sufficient evidence that it was exceptional and that the rent officer had again failed to provide proper reasoning for his decision that benefit availability had not significantly altered rents in the low range.

In relation to both fields the rent officer had recourse to his own experience and judgment which he considered confirmed the view he took from the data itself. It was conceded by H that the rent officer could pay attention to benefit supported rents, a concession which the court considered to be right. It was inevitable in a fairly small dataset, which was a natural consequence of the Lords decision as to what could reasonably constitute a locality, that both supported and unsupported rents would be considered.

Mr Justice Langstaff sitting at the Administrative Court in Leeds began by reminding himself of the proper approach to take as set out in R (Asha Foundation) v Millennium Commission [2003] EWCA Civ 88. While the rent officer was not required to give reasons for his decision he had chosen to do so and that reasoning was therefore available for consideration by the Court. Looking at the dataset alone the Court agreed that there was a clear change in the slope of the rent figures when plotted on a graph which supported the plateaus set out by the rent officer. Looking at the data alone the Court could find no fault with the decision.

Turning to the opinions of the officer and the reasoning given the Court also concluded that it could find no fault with his decision making. He was entitled, and indeed was supposed to, use his knowledge and experience in setting the level of the high and low rents. A broad discretion must necessarily be allowed to decision makers in making decisions of this type.

An opinion which is evaluative is inevitably more difficult to subject to scrutiny, at least where it is not obviously capricious. There are situations where the subtle nuances of fact, the lessons learnt from experience and all those matters which go to professional judgment of value come into play. Valuing rentals and understanding the rental market, particularly with what is necessarily a limited selection of data, involves such issues.

The explanation given was sufficient to indicate to H why the reference rent had been set as it was and what conclusions had been reached in making that decision. Neither the decision itself or the methodology which led to it were irrational.

This is a carefully reasoned decision, despite being given ex tempore. However, it might not end there. Permission to appeal was sought and refused. However, the Court did concede that while it did not consider there to be reasonable prospects of success on an appeal this case was a suitable one for consideration to be given as to how a rent officer should deal with the situation of other supported rents and their distorting effects on the market which “matter of compelling interest that the Court of Appeal should consider”. Therefore a permission hearing before the Court of Appeal is presumably likely despite Counsel’s assertion that no considered decision on that point had been made.

Just a brief note on this appeal from the Social Security Commissioners. At issue was what could constitute a claim for housing benefit, albeit a ‘defective’ claim.

Ms N was granted refugee status on 6 May 2004, having claimed asylum in 1999. She was notified on 12 May 2004. Housing benefit could be backdated to the date of her application for asylum if she made the claim within 28 days of notification – by 9 June 2004. In addition, on 18 May 2004, Ms N became entitled to income support. Where a person is entitled to income support, any claim for housing benefit made within 28 days of the claim for income support will be deemed to be made on the first date on which the claimant was entitled to income support. This extended the initial period to 15 June 2004. MS N’s claim was worth some £29,000.

On 10 June 2004, Ms N was given an HB claim form by the DWP, but a completed form was not returned until 24 June 2004, outside the time limits.

However, on the same day, 10 June, that she had been given an HB claim form, Ms N had handed in an (extremely polite) statement:

“DEPARTMENT OF SOCIAL SECURITY [sic]
STATEMENT HB + Income Support

Notes ….

I, Novitskaya Irina

of 70A King’s Road,

London NW10 2BN

state that I would like my benefits income support or whatever else I am intaital [sic] to, to be backdated from the date I became asylum seeker – which by 29.07.88 (because) according to an advice form “welfare benefit and tax credit’ hand book” – 2004-05 by Child Poverty Action Group page 665-666. I’m applaing [sic] only now because I’ve become refugee from 14.05.09. Sincerely hope for your help.

*The above has been read over to me and I agree that it is a true and complete record of what I have said. I declare that the information I have given on this form is correct and complete.

[signature]

It appeared that ‘HB + Income Support’ had been written at the top by someone else, presumably at the DWP.

Did this constitute a claim, albeit as conceded a ‘defective’ one that was only rectified by the submission of the full form?

Ms N argued yes, supported by the Secretary of State for Work and Pensions. The Respondent Council argued no on the basis that it was not a “claim” and because it made no express reference to housing benefit. Further, the Respondent submitted:

there are three stages to the rectification of a defective claim under the 1987 regulations. The stages are: (i) a defective claim is made (ii) a claim form is supplied to the claimant; and (iii) the claimant then submits the properly completed form. Mr Broatch submits that the three stages were not completed if Mrs Novitskaya did not receive a claim form in response to her defective claim because she had been given such a form already. Therefore there was no defective claim on 10 June 2004 and thus no retrospective claim for housing benefit was made within either the primary or secondary period.

This did not go down well with the Court, after all “it would mean that Brent could, by its own default, prevent Mrs Novitskaya’s defective claim being timeously rectified.

Held:
Following Kerr v Department for Social Development [2004] 4 All ER 385, “the distribution of benefits is different from many other areas of civil law. It is concerned not simply with recognising rights or enforcing liabilities but also with sustaining members of the community whom Parliament has decided should be sustained through the welfare state”. There is no justification for a requirement that every benefit being claimed must be expressly named. Reg 72 Housing Benefit (General) Regulations 1987 does not say that.

The claimant might, after all, not know the correct name of the benefit that she needed. It cannot have been the intention of Parliament that she should go without the benefit because she did not know the right name. In my judgment, it is clear from paragraphs (6), (7) and (8) of reg 72 that Parliament did not intend that the courts should approach the question of what is a claim in an over-technical way: that would defeat the object of the legislation. The form, after all, was to be completed by persons who included refugees [who] would only have arrived in this country relatively recently. I do not consider that the reasonable official would be under any doubt but that, if Mrs Novitskaya was arguably entitled to housing benefit, she was making a claim for that benefit. This is confirmed by the fact that (as it appears) an official applied the words “HB and income support” to her statement.

As this claim of 10 June was a defective claim, it was cured by the full claim of 24 June. But the relevant date of claim was 10 June. There was therefore no need to deal with Brent’s circular argument that a defective claim could not be made because Ms N had already been given a claim form, which was in any event ‘perilously technical’ as an argument.

So under these Regs, a claim for benefit, if expressed as a claim ‘for the benefits to which I am entitled’ is a claim, whether or not it mentions the actual benefits. It may be a defective claim, requiring ‘curing’ by further information later, but as a date of claim, it is valid. This could well be useful in arguing for backdates, for example.

The general view that the distribution of benefits is distinct from other areas of civil law, which appears to mean that a purely technical approach is not to be encouraged, may be of wider application.

This is a benefits case rather than housing per se, but it concerns an important point which will affect many.

An overpayment of social security benefits where the overpayment came about through misrepresentation or failure to disclose on the part of the person claiming can be recovered by under s.71 Social Security Administration Act 1992. However, s.71 only covers these exact circumstances. What of accidental overpayments, through miscalculation or error by the Department?

The Secretary of State asserted that such overpayments could be recovered under common law as a debt and had introduced a policy of sending letters requesting repayment and stating that a civil claim may be made. CPAG challenged this assertion by Judicial Review and the case came to the Court of Appeal by that route.

The Secretary of State argued that s.71 created a special class of overpayment, leaving untouched the common law right to restitution on the remaining field of overpayments.

CPAG argued that s.71 created the sole power of recovery. It covered all instances where the benefit was revised on account of a mistake. Further:

Under the Supplementary Benefits Act 1976, and until the reforms of 1998, awards were made by independent officers, making it conceptually almost impossible that a claim for restitution would lie at the instance of the paying department if such an officer made an erroneous award. Moreover, s.119 of the Social Security Act 1975 imposed an obligation to repay benefits when a decision was revised, but subject to an exception for cases of due care and diligence. Common law recovery would have been unarguable. Adjudication and payment were still constitutionally separate functions when the 1992 Act was passed. Thus the legislative context of s.71 was one in which common law powers of recovery were not on the map. This, Mr Drabble argues, is as one would anticipate: since benefits are entirely a creature of legislation, it is in the legislation that one would expect to find all their incidents and the relevant rights and obligations. [para 16]

When an award is made, the benefit is properly paid under that award. S.71 does not take effect until the award has been modified, by revision or supercission of the original award. Although a revision takes effect from the date of the original decision, or change in circumstances, it does not mean that the ‘overpayment’ was improperly made. S.71 provides for the the specific instances in which recovery may be made in that context.

In Sedley LJ’s lead judgment, the Court of Appeal held that the only right to recovery was under s.71 and therefore only in respect of cases of misrepresentation or failure to disclose.

Section 71 was not enacted in a void. It was introduced into an established statutory scheme which had always been understood to be exhaustive of the rights, obligations and remedies of both the individual and the state. It was introduced at a time when adjudication was separate from administration. Both then and since, awards have been conclusive of the obligation to pay and of the right to receive payment. In such a context it is unsurprising that the power of recovery when an award is modified should be prescribed by Parliament and not at large. That is the role of s.71. It does not affect payments made otherwise than pursuant to an award, but it is in my judgment exhaustive of the power to recover payments made pursuant to an award. [para 25]

[...] the effect of Mr Henshaw’s argument is that at that point the Department may elect between statutory and common law recovery, using the expanded powers afforded by s.71 in misrepresentation and non-disclosure cases. This is not an oppressive or fundamentally unjust scheme, since a defence of change of position is not likely to prevail in the face of obtaining payment by one form or another of deception. But it does not answer the thrust of Mr Drabble’s case, which is not that s.71 has excluded any power of recovery that was previously available but that it has created a power of recovery where otherwise there is none. That is a cogent and to my mind conclusive answer. [para 27].

It should be noted that this does not cover accidental payments, e.g. the same payment made twice, payment to the wrong person, etc.. These remain recoverable. The ‘overpayment’ has to be made as a part of an award of benefits.

A copy of the decision is currently available here and a gloss here.

This was an appeal of a review decision addressing at what point a tenant is in 8 weeks arrears for the purposes of the landlord applying to the Benefit Authority for direct payments of housing benefit.

Regulation 95 of the Housing Benefit Regulations provides that where a tenant is in arrears to an amount equivalent to 8 weeks or more of rent, HB can be paid to the landlord directly, once the landlord has notified the Authority.

In this case, a private tenancy, rent was payable in advance, on a monthly basis, as is usual. The rent was payable on the 16 of each month. The tenant didn’t pay rent on 16 August 2008 and then again on 16 September 2008. On 17 September, the landlord requested direct payments under Reg 95 from Coventry.

Coventry refused on the basis that the tenant cannot be in arrears until the period for the rent has passed and as the rent was for the period 16 September to 16 October, the tenant wouldn’t be 8 weeks in arrears under the Regs until 17 October. On 22 October, the landlord made a further application for direct payments and these were set up, leaving the period 16 September to 15 October outstanding.

The decision was upheld on review. The landlord appealed to the Tribunal. Shortly before the hearing, Coventry conceded the appeal, but said that they could not pay for Sept/Oct as there was no power to pay twice (the payment had been made to the tenant).

On appeal:
The Housing Benefit Local Housing Allowance Guidance Manual as amended in March 2008 states that rent cannot be in arrear in respect of a period that has not been served. This is wrong. (So the normal rules of when rent is due apparently apply).

The appeal was allowed. Although it was right that there was no power for the LA to pay twice, compensation was payable in this case and should be paid immediately rather than after a protracted complaint to the Ombudsman.

The answer then is that eight weeks can be as short as 4 weeks and a day. Thanks to the Guild of Residential Landlords – who supported the appeal – for the details.

This was an application for Judicial Review of a decision of the Social Security Commissioner refusing leave to appeal a decision of the Social Security Appeal Tribunal. What was at issue was the calculation of awards of housing benefit, specifically, the decision that the Claimant’s accommodation was not ‘exempt accommodation’ under paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 SI No 217. This provides that:

the “eligible rent” used to decide an award of housing benefit will not be decided by the maximum rent based on determinations made by a rent officer if it relates to “exempt accommodation”. So far as material, paragraph 4(10) of Schedule 3 defines “exempt accommodation” as including accommodation which is:

“…provided by a non-metropolitan county council …, a housing association, a registered charity or a voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision.” (CSS)

What was key was the definition of ‘person acting on its behalf’. If the Claimant was successful, the level of housing benefit payable would not be limited by the rent officer’s determination, which in this case meant there was a considerable shortfall.

The Claimant has learning difficulties and had always required support. Prior to October 2004, the Claimant had been in a Social Services hostel. After October 2004, he was an assured tenant of Rivendell Lake Housing Association Limited.

The necessary package of support to enable the Claimant to live at the Rivendell property (i.e. the necessary CSS) was commissioned and funded through Walsall Social Services and provided by Lifeways Community Care. Initially the Claimant’s full rent was paid by housing benefit. However, following the SSC decision in R (H) 2/07, which also involved Rivendell, Walsall decided that the accommodation was not exempt and set a maximum rent some £130 per week short of the full rent. The Claimant sought to appeal that decision and paid what he could, some £2,600, to the rent account. The appeal was unsuccessful.

In 2007, Rivendell bought possession proceedings, obtained possession and a money judgment for over £5000. The Claimant was re-accommodated by Walsall/Lifeways, but the money judgment remained. The Claimant continued to pursue appeals, with this application resulting. There was a challenge to the rightness of the decision in R (H) 2/07 and further evidence on the nature of the relation between Rivendell and Lifeways.

Lifeways’ contract with Walsall provided that:

i) Lifeways contracted to maintain its registration as a domiciliary care agency and to provide CSS to any individual identified by Walsall, pursuant to a commissioning agreement in the form of an Individual Service Agreement;

ii) Lifeways contracted to provide care and support services up to specified standards; and

iii) Lifeways was required to implement Walsall’s goals of (a) giving service users a choice of where, and with whom, they live, (b) promoting the community involvement of the service user, (c) separating housing from care provision wherever possible, and (iv) giving service users choice over who provides their care and support (see the annexed Service Specification).

There was a written agreement between Rivendell and Lifeways dated 2004. It stated that:

i) The preamble states that Rivendell is a non-profit making voluntary body formed to provide housing for vulnerable people, that Lifeways is registered as a provider of domiciliary care under the National Care Standards Act 2000 and that it is the intention of the parties to provide accommodation “in a supportive environment for persons with learning disabilities (the Scheme)”.

ii) The function of Rivendell under the agreement was to acquire suitable property, to let it to tenants proposed by Lifeways and to attend to all housing-related matters.

iii) The essential function of Lifeways under the agreement was to select appropriate tenants and, thereafter, to provide the tenants with appropriate levels of CSS in accordance with a care plan and pursuant to a contract with a commissioning body (i.e. the relevant local authority, in this case Walsall): see, in particular, Lifeways’ specified responsibilities as set out in paragraph 5.2 of the agreement.

There was also a 2005 agreement, unsigned, but on which both had acted, which stated that:

Lifeways will provide all necessary care, support and supervision services … for all tenants of the Property on behalf of [Rivendell]

The question was therefore whether this arrangement between Rivendell and Lifeways meant that Lifeways were providing CSS ‘on behalf of’ Rivendell in such a manner as to satisfy the statutory exemption.

The Claimant argued that this was a joint venture by Rivendell and Lifeways. Rivendell could not provide the CSS, Lifeways could not provide the accommodation, such that each was dependent on the other, so:

pursuant to the terms of the 2004/2005 Agreement, the provision of CSS by Lifeways was therefore complementary to the provision of accommodation by Rivendell and was one that was therefore in the interests of Rivendell and for the benefit of Rivendell. Mr Knafler [for the Claimant] submitted that, on any view, Rivendell and Lifeways were engaged in a “joint venture” such that the services of each were essential to the success of the Scheme. He also submitted that, in reality, Lifeways operated as a representative of or was “akin” to an agent of the joint venture and/or the Scheme and, thus, of Rivendell.

Secondly, the expression “on its behalf” in paragraph 4(10) of Schedule 3 to the CP Regulations was intended to distinguish between accommodation provided by specified not-for-profit agencies that “catered for” or was “involved with” persons who required CSS and accommodation that did not; and that the phrase should be construed accordingly. It should be given a wide meaning, implying ‘for the benefit of’ or ‘in the interests of’.

Both the Secretary of State, intervening, and Walsall argued that ‘on its behalf’ had the narrow sense of ‘in its place’ or ‘instead of’ and that this was the intention of the Regulation. The legislation envisaged the care provider providing CSS in circumstances where the accommodation provided would otherwise be required to do so.

It was clear from the agreement between Rivendell and Lifeways, which was accepted to have contractual force, that this was not the case. The Claimant’s interpretation wold render the clear link intended in the legislation as fundamentally meaningless.

Held:
1. Rivendell was never, at any stage, required or expected to provide the Claimant with any CSS. The contractual duty to provide CSS was between Lifeways and Walsall.

2. There was nothing in the tenancy agreement between Rivendell and the Claimant which went beyond what would ordinarily be expected to be provided for in such an agreement. There was no sense in which Lifeways contributed to this landlord/tenant relationship or was in any way necessary to enable Rivendell to provide the accommodation in question.

3. Rivendell’s involvement was not necessary for Walsall to discharge its duty to provide the Claimant with CSS.

4. Rivendell could not be said to have derived sufficient benefit from Lifeways’ provision of CSS to bring it under ‘on behalf of’. That was so whether the wider or narrower meaning was preferred, but in any event, it was the narrower construction of the phrase that should be applied, given its legislative history and the subsequent consistent policy framework. The issue of the role of the accommodation provider in the provision of CSS.

5. On the interpretation of the phrase ‘on behalf of’:

The full wording of the relevant part of paragraph 4(10) of Schedule 3 is “where that body or a person acting on its behalf also provides the claimant with care, support or supervision.” In my view, applied to the factual circumstances of this case, the words “that body” plainly refer to the landlord, Rivendell. The primary focus must, therefore, be on whether the second organisation (here, Lifeways) is providing care, support or supervision which “that body” (i.e. Rivendell) would otherwise be providing to the Claimant. In other words, the crucial question is whether Lifeways is providing CSS in place of Rivendell (i.e. the narrow construction).

Furthermore, the use of the word “also” in the statutory wording is significant. It indicates that either the landlord provides both housing and CSS, or, that the care provider operates in place of the landlord, since it is the landlord who would otherwise “also” be providing such services.

6. While the SSC in Chorley BC v IT (2009) UKUT 107 (AAC) had expressed concern at the absurdity of the effect of the Regulation, this was a matter for the Secretary of State rather than the reinterpretation of the Regulation by the Courts. The Secretary of State had indicated that the issue was under consideration in view of the broad changes in the delivery of accommodation and support since the legislation was enacted.

Application dismissed.

Briefly, Mr Hanoman was a Southwark secure tenant. Southwark had failed to serve a counter notice to Mr Hanoman’s s.122 Notice of right to buy, served in 1999. In fact the counter notice wasn’t served until after a High Court hearing in 2004. S.153B Housing Act 1985 (as amended) kicks in where the tenant has served notice of delay, which Mr Hanoman had. The effect is that rent payable after the notice period in the notice of delay is set against the purchase price of the property – up a 12 months full rent, then 50% thereafter. In Mr Hanoman’s case this would have amounted to the full purchase price, after discount, of the property. Mr Hanoman had paid the purchase price in 2004, subject to this case going forward.

Mr Hanoman was in receipt of housing benefit. As a secure tenant of the housing authority, this was in the form of a rent rebate, rather than a payment of a rent allowance, section 134(1A) of the Social Security Administration Act 1992. Southwark’s contention was that a housing benefit rebate did not count as payment of rent for the purposes of s.153(B):

The purpose of section 153B(2) is, it is submitted, to compensate a tenant for having had to pay rent during the period of delay, not to provide the tenant with a windfall by restoring to him something he has never had. Mr Heather, who appeared for the Council, argued that in the context of section 153B the word “payment” contemplated the movement of money from the tenant to the landlord. He argued also that the payment had to be a payment of ‘rent’. Housing benefit is not ‘rent’ and the application of housing benefit in reduction of rent does not transform it into rent. [para 21]

Then Southwark went perhaps a little off piste, arguing that there were other credits to a rent account that would not count as payment of rent:

One such example was an award to a tenant of damages against a local authority landlord for breach of repairing obligations. It was, he said, often the case that such damages would be credited to the tenant’s rent account rather than paid to the tenant. Such credits, he said, would not amount to payments of rent for section 153B purposes. [para 22]

Heaven knows where Southwark thought they were going with that, but it didn’t get very far. Lord Scott, in the sole opinion, effectively told them not to be so silly.

First, the crediting of the damages to the tenant’s rent account could only be done with the tenant’s consent. Absent a successful set-off defence, a judge would have no power that I know of to impose such a thing on a successful claimant in a damages action. If and to the extent that the damages were then applied in discharge of rent due from the tenant the local authority would be acting as the tenant’s agent in so doing. The application of the damages in these circumstances would be no different from a payment of the damages to the tenant and the application of the money by the tenant in payment of rent due. And, although your Lordships do not need to decide the point, the same would, in my opinion, be so in the case of a successful set-off defence by the local authority. [para 22]

So the question was, given that both parties acknowledged that payment of a rent allowance would be payment of rent, whether the rebate could be payment of rent. Lord Scott finds that it can be.

To take it otherwise would be a) to fail to give effect to s.153A and B, such that the local authority would escape all or part of the penalty if the tenant received housing benefit; and b) would result in the anomalous situation where tenants of RSLs, Housing Action Trusts etc. would have the benefit of the penalty as they got rent allowance, whereas tenants of local authorities and new town corporations, getting HB as rebate wouldn’t:

This difference seems to me unprincipled, to be one that is not supported by any discernible policy and cannot be supposed to reflect any Parliamentary intention. [para 26].

Appeal dismissed and Mr Hanoman got his home for free after discount (and with interest on £17,000 since 2004).

Ms Yesiloz arrived in the UK in the late 1990s and claimed asylum.  She moved into premises in Camden and claimed HB on 11 April 2006.  Her claim was rejected on the ground that she did not have a right to reside in the UK.  In January 2007 an Appeal Tribunal held that she was entitled to HB, but the Social Security Commissioner allowed the local authority’s appeal in June 2008.  Ms Yesiloz then appealed to the Court of Appeal.

In February 2008 she was granted exceptional leave to remain and was then succesful with a new claim for HB, so at issue was her entitlement from April 2006 to February 2008.

Legislation

The Immigration and Asylum Act 1999, s. 115 excludes entitlement to benefits, including HB, for persons subject to immigration control, “unless he falls within such category or description, or satisfies such conditions, as may be prescribed”: s. 115(3).

Regulation 2(1) of the Social Security (Immigration & Asylum) Consequential Amendments Regulations 2000 (SI 2000/636) states that s. 115 does not apply to people within four categories.  The fourth category includes people who are nationals of states that have ratified the European Convention on Social and Medical Assistance (ECSMA) and are lawfully present in the UK.  Turkey has ratified ECSMA.  Therefore Ms Yesiloz is saved by the Regulations from disentitlement under s. 115 of the 1999 Act.

However, that is not the end of her problems as it does not automatically qualify her for HB under s. 130 of the Social Security Contributions & Benefits Act 1992.  At the material time this was governed by Housing Benefit Regulations 2006 (SI 2006/213).  Regulation 10 of these Regulations provides that an individual who has no right to reside in the UK shall not be treated as habitually resident.  They are therefore a “person from abroad” for the purposes of Paragraph 1 of Regulation 10 and should not be treated as liable to make payments in respect of a dwelling.  It follows that they would not therefore be entitled to HB.

Paragraph 3B of Regulation 10 specifies a number of categories of people who should not be classified as “persons from abroad”.  Nationals of ECSMA countries are not included in this list.

So the central issue is whether Ms Yesiloz had a right to reside.

Right to Reside

It was accepted by Camden that Ms Yesiloz was lawfully present in the UK, but in Abdirahman v SSWP [2007] EWCA Civ 657 the distinction between a right to reside and a right to admission (or lawful presence) was drawn by Lloyd LJ, when considering a different set of regulations:

It seems to me plain that UK law makes a distinction between a right to reside … on the one hand, and any lesser status, in particular that of an EEA national who is in this country having entered lawfully, has committed no breach of immigration law, but is not a qualified person and therefore does not enjoy the benefit of … a “right to reside”.

On behalf of Ms Yesiloz it was argued that as people in the first three categories identified in the 2000 Regulations had a right to reside, then people in the fourth category should be treated the same way.  The exclusion of ECSMA nationals from the groups of people who should not be classified as persons from abroad was accidental and there was no public policy reason to exclude those in the fourth category from having the right to reside.  Pill LJ disagreed with this line of reasoning:

31.  Whether the appellant has a right to reside in the United Kingdom depends on the construction of the appropriate statute or statutory instrument, in this case regulation 10 of the 2006 Regulations. The appellant must establish that she has a right to reside. Otherwise she is a “person from abroad” and not entitled to housing benefit. Regulation 10(3B) specifies many categories of persons who are not “persons from abroad”. It was, and was intended to be, a comprehensive list. The need, in this context, for a clear and specific classification is obvious.

32.  The categories do not include nationals of states party to ECSMA. In those circumstances, such persons cannot be said to have a right to reside either because of their position in the schedule to the 2000 Regulations, or because the introduction of the concept of right to reside was primarily aimed at nationals of A8 states, or because there is no powerful reason in public policy for depriving them of the right to reside, or by reason of any combination of those factors. The inclusion of paragraph 4 in part 1 to the schedule to the 2000 Regulations, whatever its purpose, does not, in my view, carry for paragraph 4 persons the implication of entitlement to a right to reside.

33.  The points relied on are straws in the wind and, well though Mr Berry has attempted to make the most of them, they do not permit the words “right to reside” in regulation 10 of the 2006 Regulations to be construed so as to include the appellant.

Smith and Wall LLJ agreed with Pill LJ.  Appeal dismissed.