05/08/2014

Help me make it through the night

We have the first (to the best of my knowledge) Upper Tribunal decision on a bedroom tax appeal, and therefore one binding on First Tier Tribunals. While it is not on one of the large scale issues, such as room size, it is nonetheless potentially important for a number of tenants and offers a view of the Upper Tribunal approach to the Regulations.

SD v Eastleigh Borough Council (HB) (Housing and council tax benefits : other) [2014] UKUT 325 (AAC)

The issue here was whether the appellant met the requirements for an additional bedroom for an overnight carer under Reg B13(6)(a).

The property is a three bed house. The appellant lives there with her daughter, two other daughters having moved out. Eastleigh Council determined that she must pay the 14% in respect of the third bedroom despite the appellant having informed them that the room was used sometimes by an overnight carer for her.

The appellant suffers from severe eczema and severe asthma and receives the middle rate of the care component of disability living allowance (though not night care element, which we’ll come back to). Her appeal to the First Tier Tribunal was supported by medical evidence that she required overnight care ‘often’ or ‘frequently’, but unpredictably due to the nature of her condition.

Eastleigh decided that as she was not receiving the night care she did not have regular need of a bedroom for a carer. The matter went to the FTT, where the appellant for some reason did not attend. The FTT got itself in a bit of a tangle over the meaning of ‘regular’.

The term “person who requires overnight care” is defined in regulation 2(1) of the 2006 Regulations, as amended by regulation 2(2)(a) of the Housing Benefit (Amendment) Regulations 2010 (SI 2010/2835), which provided –

“‘person who requires overnight care’ means a person (“P”)-

(a) who-

(i) is in receipt of attendance allowance;

(ii) is in receipt of the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act; or

(iii) although not satisfying either paragraph (i) or (ii) above has provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care; and

(b) whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should-

(i) be engaged in providing overnight care for P;

(ii) regularly stay overnight at the dwelling for that purpose; and

(iii) be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home,

but ….”
[NB amended in April 2013, but amends not relevant to this case]

The FTT decided that the appellant was indeed a person in receipt of the middle rate care component of DLA, so satisfied (a)(ii). Whether she received the night care element was not necessarily fatal. But on the meaning of ‘regularly’:

Do the carers “regularly stay overnight”? The Regulations contain no definition of the word “regularly”. However, in normal English usage it denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even. It may not necessarily happen frequently; and hence it is not fatal to [the claimant’s] case that her award of Disability Living Allowance does not include an element for “night needs”.

While the appellant might have carers staying often, or frequently, the medical evidence was that this was at unpredictable days. So it could not be said to be regular, in the sense of reasonably even.

The FTT was not happy with its own decision, noting that this could well mean someone with frequent but unpredictable needs for overnight care would be excluded where someone with lesser but predictable and even overnight care would be included. In fact the FTT was so unhappy that the same Judge granted permission to appeal.

On appeal to the Upper Tribunal, Eastleigh again brought out the argument that the appellant not receiving DLA in respect of night care meant not regular overnight care, and added, one must trust more in hope than expectation, an argument based on Bolton MBC v BF (HB) [2014] UKUT 48 (AAC) [our report]. Eastleigh:

argues that that shows that the carer could sleep in a room other than a bedroom so that the requirement for an additional bedroom is not made out. In reply, the claimant asserts that she is entitled to a bedroom for a carer because it would not be reasonable to require a carer to sleep in another room and, if the local authority’s approach were correct, no-one would ever succeed in showing a need for a bedroom for a carer.

That argument based on Bolton, rightly, got short shrift:

In my judgment, the Bolton case is totally irrelevant to the present appeal. […]. In substance the decision amounts to authority that, for the purposes of head (b)(iii) of the definition, a carer is provided with the use of a bedroom if he or she is provided with the use of a room in which to sleep. The context requires that approach to the definition in regulation 2. The context requires a different approach to regulation B13(5). In any event, Bolton is not authority for the proposition that any room in which a person could put a portable bed is a bedroom; it is at best authority for the proposition that a room that is actually used in that way may be a bedroom. The case is irrelevant to the present case because the room used by carers here is clearly a bedroom and there is no dispute on that point.

So did the argument about DLA night care:

whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the “night” attendance conditions cannot be determinative of the question whether claimant is a “person who requires overnight care”. That is not the effect of head (a) of the definition. A person who is entitled only on the basis of the “day” conditions satisfies head (a), but it is necessary to convince a local authority that care is required at night in order to satisfy head (b). However, there are several reasons why a person might satisfy head (b) without being entitled to the care component of disability living allowance on the basis of the “night” attendance conditions. One is that the requisite degree of attention or supervision must be required “throughout” the period of an award of disability living allowance (see the opening words of section 72(1) of the 1992 Act) and not merely “regularly” during that period. Another is the lengthy qualifying period before the basis of an award can be altered (see section 72(2)). A third is simply the possibility of a claimant not having made an appropriate application for supersession of her award of disability living allowance. The basis of an award of disability living allowance may therefore be relevant evidence but it cannot be conclusive.

That left the key issue of what ‘regularly’ meant.

The First-tier Tribunal held that the word “denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even” but the judge was unhappy with that construction because whether or not the need for overnight care was regular in that sense might not reflect the relative extent of the need. In my judgment, that difficulty suggests that the word does not, in this instance, have the meaning ascribed to it by the First-tier Tribunal. The word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision than that adopted by the First-tier Tribunal. Whether the intervals between a person’s need for overnight care are uniform or not is, as the First-tier Tribunal pointed out, immaterial to his or her need for a bedroom in which to accommodate a carer.

What the legislation is concerned with is whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose. A bedroom cannot be switched on and off and, if the object of the legislation is to encourage claimants to move to smaller accommodation or take lodgers into their spare rooms, it is to be presumed that whether overnight care is regular or not has to be considered over a fairly long period. Moreover, there is nothing in the word “regularly” that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion. That may be why that word was chosen. It does not mean the same as “normally” or “ordinarily”. A bedroom may be required even if the help is required only on a minority of nights. Whether a carer must “regularly” stay overnight must be considered in that context.

Appeal allowed. The appellant fell under B13(6)(a) and should be allowed an additional bedroom.

Comment

While the numbers of people directly affected by this judgment – which is binding on First Tier Tribunals – may be relatively small, the UT’s approach to defining ‘regularly’ is clearly helpful for those whose overnight care needs are erratic, or unpredictable, but even out over a long period.

It is also very helpful in making clear that a bedroom may be required even if overnight care is only needed on a ‘minority’ of nights – so no requirement that overnight care be for more than 3 nights a week, for example.

The clarity on the non-decisive nature of any overnight care element in DLA is also welcome.

While Eastleigh’s attempt to use Bolton to argue that a carer didn’t actually need a bedroom might be charitably described as cheeky (or non-charitably described as arrant nonsense that should never have been argued), at least that particular red herring has been disposed of. (Of course, the logic of Bolton would be that even if the carer had stayed in another room, that room would have been a bedroom, so the tenant would be entitled to HB for an additional bedroom, even if it wasn’t the actual bedroom.)

What is interesting is that the UT is well prepared to take a practical view-point on the specific facts. Attempts by Eastleigh to nitpick or finesse the detail of the regulations get short shrift, as does the FTT’s overly pedantic application of ‘regularly’.

While not wanting to pre-judge the Upper Tribunal on any of the issues such as room size and room use that will come before it soon – I have always said these could go either way – a practical approach to the terms set out in the regulations is unlikely to assist the DWP.

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.

3 Comments

  1. joehalewood

    I am not in the least surprised the tenant did not appear, apart from her not requesting an oral hearing but the council did (see 9) such a hearing is likely to get a severe asthmatic very anxious indeed. The humble social tenants who appeal the bedroom tax have rarely if ever been in any form of court.

    You are also being far too kind on Eastleigh’s Bolton argument. It was woeful but then again so was their request for an oral hearing as the must have known the FTT was very troubled by the ‘tangle’ it got into and should have left this matter to be decided on paper and saved the public purse and the local taxpayer a fair amount of money in their chasing of this case.

    While the UT quite rightly attacked the Eastleigh position on Bolton it did say “…is at best authority for the proposition that a room that is actually used in that way may be a bedroom.”

    So if a room has a bed in it then it MAY be a bedroom? While that doesn’t say a room is a bedroom if it has a bed in it, it MAY say a room needs to be furnished with a bed to be a bedroom. So that issue is not settled at all, and what it DOES say is that the DWP U6/2103 view that a room is a bedroom if it can fit a single bed in it, is nonsense.

    Reply
  2. Giles Peaker

    Joe – yes, I don’t know why the appellant didn’t attend and was careful not to draw any conclusions from that, there could be all sorts of perfectly valid reasons.

    Agreed this could have been dealt with by the UT on the papers.

    I’m afraid you still don’t actually get the Bolton decision! The UT is exactly right that that is what the Bolton decision said and what is a proposition for (remember, there was no bed in that decision, just a camp bed). But that was the living room. So, it is not a proposition for saying that a bedroom must have a bed in it. Or even that it must be used as a bedroom much of the time.

    The DWP view is just that, a view. What the law is and the regulations mean is not up to the DWP.

    Reply
  3. Anna W

    Having a dual practice – immigration as well as housing law – interesting to read of this part of the “unified” tribunal system getting confused over the meaning of “regular”. The AIT, predecessor to UT (Imm. and Asylum Chamber) took this view on “regular” when thinking about the immigration rules for domestic workers (in NG (“on a regular basis” para 159A(ii)) Bulgaria [2006] UKAIT 00020)

    12. The term “regular” which appears in paragraph 159A(ii) is not defined in the Immigration Rules. It does not appear in the interpretation section at paragraph 6 of the Rules. It is therefore to be interpreted in accordance with its ordinary dictionary meaning, giving the Immigration Rules a purposive interpretation, rather than seeking to interpret them with the strictness that might apply if they were statutory provisions. In this regard, we have given consideration to the definition of the word “regular” which appears in the current edition of the New Shorter Oxford English Dictionary. The dictionary definition sets out a range of different meanings, but for present purposes the only meanings which are arguably relevant are those which appear in paragraphs 3 and 4 of the definition respectively. At paragraph 3, the following definition appears:

    “Recurring or repeated at fixed intervals, recurring at short uniform intervals. Habitually or customarily used, received or observed; habitual, constant”.

    At paragraph 4, “regular” is defined as meaning:

    “Observing fixed times for or never failing in the performance of certain actions or duties.”

    13. Stated shortly, Mr Stanage’s submission was that for the purposes of paragraph 159A(ii), use of a household “on a regular basis” did not require that such use should be frequent. He did not offer any suggestion as to what else the expression might be intended to mean in this particular context. Mrs Petterson, on the other hand, adopted the opposite submission, namely that in this context, “regular” implied frequent or habitual.

    14. We have little (if any) hesitation in preferring the latter submission. In some contexts, an event may properly be described as happening “regularly”, even though it happens infrequently. To adopt the example which was raised during the course of argument before us, Halley’s Comet comes close to the Earth once in every 76 years. The reappearance of the Comet is an event which can be predicted with a high degree of accuracy many decades, indeed centuries, in advance. To that extent, the appearance of the Comet may fairly be described as one which takes place “on a regular basis”.

    15. However, that is plainly not the meaning that the expression “on a regular basis” is intended to bear in the context of paragraph 159A(ii). On the contrary, it is clearly intended to bear the alternative meaning contained in paragraph 4 of the dictionary definition set out above, namely “habitually or customarily used”…

    Reply

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