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Not on its behalf…


S, R (on the application of) v A Social Security Commissioner & Ors [2009] EWHC 2221 (Admin)

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.

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.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


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