This a late note on OR -v- Secretary of State for Work and Pensions and Isle of Anglesey CC [2013] UKUT 065 (AAC) because, bluntly, I had read it quickly at the time and overlooked its broader significance.

The issue was whether OR could receive housing benefit for his stays in a night shelter hostel. The First Tier Tribunal had held that a hostel was a dwelling for the purposes of the housing benefit regulations, because the regulations said it was. However, the First Tier found that OR was not occupying it as his home.

On appeal to the Upper Tribunal, this was found to be wrong. While the regulations certainly didn’t prevent a hostel from being a dwelling, there was no definition of hostel that meant it always was a dwelling in the regs. The question therefore was whether the night shelter in this case was capable of being a dwelling for OR such that HB was payable.

The Upper Tribunal followed Secretary of State for Work and Pensions –v- Miah [2003] EWCA Civ 1111; R(JSA)9/03 on the approach to identifying whether accommodation could be considered to be a dwelling, adopting the First Tier Tribunal’s finding of facts:

“The….Night Shelter [was] on the ground floor of the former British Legion club in Holyhead. This was an open area which had been partitioned to form an office, a male sleeping area or dormitory for 8 persons and a female dormitory for 2 persons. The maximum number that could be accommodated was 10. There was a food preparation area where users could prepare the food provided which consisted of bread, ham, cheese, baked beans, cereal, jam, tea, coffee and (presumably) milk and sugar. There was a stand alone boiler for hot water, microwave oven, kettle, toaster, and fridge. The existing male and female toilets and washbasins in the building provided the toilet and washing facilities. Shower facilities were available in the day centre which was about a quarter of a mile away from the night shelter. The two facilities were run in conjunction with one another. Facilities for storage of personal belongings took the form of individual plastic boxes which were locked together in a large cupboard. In addition each user had a bedside locker for clothing and a chair. Places at the night shelter were allocated on a first come first served basis. In practice no one had been denied a place although it was conceded at the hearing that in theory if more people had turned up than there were beds for then some would have been turned away.

 

…The purpose of the accommodation was to give shelter to night sleepers of whom it was known there were a number in the area. Many had…alcohol or drug problems. Those wishing to stay in the night shelter were required to register at the day centre by 6pm. Newcomers (those who had not stayed in the shelter before) would have been assessed earlier. There were no specific criteria for admission. If they posed no risk they were admitted on a first come first served basis. A hot meal was provided at the day centre and those admitted were escorted as a group to the night shelter at 8pm. Advice on their rights, applications for housing and help and advice with personal difficulties was provided by trained staff at the day centre and by the two members of staff on duty at the night shelter. Staff were encouraged to interact with users. Users were required to vacate the premises at 8am”.

Not an unusual set of arrangements for a night shelter, save perhaps for the separate shower facilities.

The UT adopted para 26 of Miah as setting out a functional test of “Is this a place serving as a home for the claimant?” with “such a place being a place where the person lives, eats, sleeps, bathes, relaxes, and enjoys with his family” (paragraph [32] of Miah).

The decision was that OR was not occupying the night shelter as a dwelling.

47. However the factors (or factor – as both overlap to a considerable extent) which in my judgment count decisively against the appellant are (a) the very transient nature of his stays at the hostel, and (b) the lack of any right of occupancy beyond the 12 hours he was allowed to be there overnight. At most, once in the night shelter the appellant had a licence to stay there (subject to his abiding by conditions as to his behaviour) limited to the 12 hours between 8pm and 8am. After those hours he had to leave, he had no right to return to the shelter in the day to rest or shelter from the weather, and he could not leave any personal possessions at the shelter during the day. On this basis I cannot see how it can be said that that he was occupying a dwelling as his home even for the 24 hour period of one day within which he stayed at the night shelter for the night time. What is missing is any connection with the night shelter, or using it as a base or home, during the day: the function of it being a place where he lived, ate, slept, bathed, relaxed and enjoyed as described in Miah. In addition, the appellant had no right to stay in the dwelling on the following or any given night (and so had not right to occupy it as a home). His ability to do so was dependent entirely on whether the shelter was full or not. That lack of any certainty or right to stay (even if only on subsequent nights) is not in my judgment consistent with the appellant occupying a dwelling as his home.

 

48. This is not to say that very short stays in accommodation cannot fall within section 130(1)(a) of the SSCBA and qualify for housing benefit. The person forced to stay in bed and breakfast accommodation or emergency council accommodation for a few days or weeks due to a flood or domestic violence may well be occupying that accommodation as his or her home even for the short period they are there (as they will have a right to remain in that (or some other) accommodation for the temporary period and will be able to use the accommodation as their home); and they may, subject to regulation 7 of the HB Regs, qualify for housing benefit for any ‘rent’ charged for that accommodation. But, on the facts of this case, the appellant was neither occupying the night shelter as his home (in the Miah sense above), nor did he have any right to occupy it as a home.

Now, while the UT was very concerned to emphasise that this was a decision strictly on the facts of the case, not intended to represent any wider finding on hostels, the arrangements at this shelter are hardly unusual – communal sleeping, being turned out during the day, with no right to return, and no storage for belongings.

It turns out that one council, Salford, has indeed taken this decision as meaning that no HB is payable for night shelters in their areas and that if they pay it, they won’t get it back from the DWP. According to the Guardian, this has led to the closure of a shelter in Salford. More councils are looking at their position. Other councils have taken a different view to Salford, but clearly it may turn on the specific arrangements for each shelter.

This is a very bad situation. It is unlikely that Councils will divert funds from other areas (Preventing Homelessness, for example) to replace the loss of HB income for the shelters. However, the DWP appears either to have not figured out that there is a problem, or is remarkably blasé about it. I suspect that the issue would take amendment to the regulations to resolve, as DWP guidance couldn’t really over-rule a binding UT decision. But these is no sign of any action, let alone rapid action from the DWP.