I confess never to have thought too deeply about this question, but it is clearly important and not exactly free from doubt. In Oxford CC v Basey [2012] EWCA Civ 115, the question arose for the Court of Appeal in the context of the range of payments which are eligible for housing benefit. Rather than go through the convoluted process of explanation, let’s adopt the description of HB for these purposes by the Upper Tribunal: “… housing benefit includes the costs of cleaning and fuel for communal areas other than rooms in all accommodation, but also includes the costs of cleaning and fuel for communal rooms in sheltered accommodation”. The question, then, was whether Mr Basey was occupying “sheltered accommodation”. He had a tenancy of his bedroom and shared use of communal facilities (washing, toilet, sitting rooms, kitchen) with the three other tenants living in the property. There were staff on site 24/7 and Mr Basey was given one-on-one time for two to three hours a day.
Sullivan LJ found that this was sheltered accommodation, but, given that this question was said to raise a major issue for local authorities, made general comments. Oxford’s position started, in their written argument, with the proposition that sheltered accommodation had to have six essential features: small, easily managed, self-contained accommodation with its own bathroom and kitchen; which is grouped together on a site; is designed specifically for the elderly, disabled or other vulnerable persons; is served by a warden, who deals with estate management issues and emergencies only; is served by an emergency alarm system; and has a communal common room, for social activities, and gardens.
Having started from that rather pedantic, overly positivist approach, it seems that during the oral argument they were effectively forced to resile from it. They argued that at least some of the features had to be present. This had to be correct, as Sullivan LJ observed, because not only was it the previously accepted position of the Upper Tribunal (CIS/1460/1995, Judge Mesher) but also Parliament had not defined the term in a statute which (let’s face it) has highly prescriptive definitions of most things ([17]). Further, it was clear from Oxford’s own evidence from other organisations that the term “sheltered accommodation” is highly variable in practice and those organisations included “extra care” sheltered accommodation within its ambit.
So, Oxford then submitted that, as was accepted, Mr Basey’s accommodation was one rung below a care home and his care needs were so great that he did not live independently. This was, then, supported accommodation. That was an interesting submission in its own right, but the HB regs don’t refer to supported accommodation so it wasn’t going to get them very far. And, as Sullivan LJ pointed out, “I can see no sensible basis for the blanket proposition that accommodation which is only ‘one rung’ below that which is to be found in a care home is not to be regarded as sheltered accommodation, whereas accommodation which is more than one rung below is to be regarded as sheltered accommodation” ([26]).
The Upper Tribunal had made the observation, in finding for Mr Basey, that it would have been perverse “if occupiers who had less need to use the common rooms in sheltered accommodation (because they are more able to manage on their own) were entitled to receive housing benefit to cover the cost of these rooms, while those, such as the Respondent, who had more need to use the common rooms (because they were less able to manage on their own) were not so entitled” ([27]). Oxford argued that it would be anomalous if Mr Basey was so entitled because others with self-contained accommodation, which included a kitchen and a bathroom, wouldn’t be entitled to HB in respect of fuel and cleaning of those rooms. Sullivan LJ wasn’t really having that – as he put it, “a line has to be drawn somewhere” – and the Regs tend to adopt the “broad assumption” that communal rooms are necessary in sheltered accommodation.
What will be particularly useful to both claimants and local authorities alike is Sullivan LJ’s final couple of substantive paragraphs where he draws a distinction, first, between “ordinary” and “sheltered” accommodation, and then between a “care home” and “sheltered accommodation”, as follows:
At one end of a broad spectrum, sheltered accommodation is distinguishable from “ordinary” accommodation because it will incorporate particular features which are not normally found in “ordinary” accommodation and are designed to meet the needs of occupiers who are vulnerable in some way, often by reason of age, and increasingly by reason of disability. The Appellant’s six “essential common features” are no more than a non-exhaustive list of examples of such features. The presence, or absence of a particular feature is not determinative.
At the other end of the spectrum a care home is not sheltered accommodation. The occupiers of a care home may well need a greater level of care than is available in very sheltered accommodation … but the level of care may well be determined more by personal choice and/or availability, or more probably lack of provision in a particular area. The emphasis in a care home will usually be rather more on care than accommodation, and this will normally be reflected in the basis upon which such accommodation is occupied. Typically the occupiers will occupy their rooms under licence. Of particular importance for present purposes – eligibility for housing benefit in respect of service charges for heating, lighting and cleaning common rooms in sheltered accommodation – those having exclusive possession of their own living space within that sheltered accommodation will be in occupation, and will be liable to pay the rent and service charges which are eligible for housing benefit, pursuant to a tenancy.
I can’t help but finish with the observation that the HB regs force local authorities to argue things which they probably wouldn’t want to argue otherwise.