09 September, 2009
The support provided to individuals in the greatest need through the granting of housing benefit is an area of law which is often the subject of legal action, particularly when attempts are made to reduce the amount in question. Due to the nature of such proceedings (and the possible effect they can have), those involved in the social housing sector may wish to be aware of the decision in R (on the application of S) v A Social Security Commissioner & (1) Secretary of State for Work and Pensions (2) Walsall Metropolitan Borough Council  EWHC 2221. This case addressed this very issue and ruled that the reduction was fair.
The central issue in the proceedings was the correct interpretation of a section of the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 which provided that the 'eligible rent' used to decide an award of housing benefit will not be decided by the maximum rent determined by a rent officer if it relates to 'exempt accommodation'. This 'exempt accommodation' classification enjoys an older and more generous and flexible system of housing benefit control.
Exempt accommodation is defined as including accommodation provided by a council, housing association or voluntary organisation where that body or a person acting on its behalf also provided the claimant with care, support or supervision.
The claimant (S) suffered from a mild learning disability and it was generally agreed that he was unable to live in the community without constant care, support or supervision. Before October 2004, S lived in a large hostel run by the social services department in Walsall. However, S was then accommodated in a property which meant that he could live in the community. This property was provided by Rivendell Lake Housing Association, who granted S an assured tenancy.
At all times until July 2006, the Council paid Rivendell the whole of S's rent of £195 as housing benefit. In August 2006 (following the decision of R(H) in June 2006 which ruled that care, support or supervision was only provided on behalf of a landlord where the landlord was under a contractual duty to provide it, the actual provider of the support was under a duty to the landlord to provide it, and the provider received payment for doing so) the Council notified S and Rivendell that it no longer that S's home was 'exempt accommodation' and restricted S's housing benefit to £65 per week, as a third party was used to support, supervise and care for S.
After this decision, S sought to meet the difference between his rent and the reduced housing benefit by paying Rivendell out of his own resources, but eventually fell into arrears. In March 2007, Rivendell brought possession proceedings against S for rent arrears and in January 2008 obtained an order for possession and a money judgement against him.
S appealed against the decision to reduce the housing benefit but was refused permission to do so. S then appealed to the Court of Appeal in relation to this refusal.
In ruling that it was correct to turn down S's request to appeal, the Court of Appeal was of the opinion that at no stage during the tenancy was Rivendell required or expected to provide S with care, support or supervision. The court held that the duty was owned by the Council, who in turn discharged this obligation by instructing a third party to undertake this work.
The court also said that there was nothing within S's tenancy agreement with Rivendell which would have led anyone to assume that such a responsibility lay with them. As such, it was held that S's former property did not fall within the 'exempt accommodation' category and therefore, the Council was entitled to reduce the level of housing benefit paid to him.