Provision of adequate accommodation

See Mr Commissioner Mesher as then was at paragaph 15 of the appendix to CIS/1460/1995

“It is inconceivable that an adjudicating authority, in order to decide the proper extent of housing costs in cases like the present, should be forced to make determinations about the extent of a communal garden which can be said to be in the immediate vicinity of a claimant’sdwelling, or how often a claimant makes use of a communal lounge or whether a self-contained bungalow can be said to be complete or adequate as accommodation without the use of a communal lounge. Where an element of a service charge is not specified either as ineligible or eligible in sub-paragraphs [a) to (f) of paragraph 1 of Schedule 1 to the Housing Benefit Regulations, so that the test in sub-paragraph (g) has to be considered, a common sense view must be taken of the notion of adequate accommodation..In general, where the terms on which a claimant ocaupies a dwelling include the right to use premises (including gardens, grounds,b walkways etc) beyond the dwelling exclusively occupied by the claimant, services related to the adequacy of those premises should be accepted as related to the provision of adequate accommodation. Paragraph 1 as a whole contemplates that charges for areas used in common may be eligible (see sub-paragraph (a)(ii) (laundry facilities), (iii) (children’s play area) and (iv) (cleaning of communal areas)). That is reinforced by the existence of paragraph 7, in that a need was seen to give the phrase “communal area” a special meaning where those particular words are used. Paragraph l(g) should not be interpreted so as to produce a result which is inconsistent with that approach”

Following the CD cited by Derek, there was a Court of Appeal judgement that expressly followed the High Court Judge’s finding that the reference to being connected to the provision of adequate accommodation must be read narrowly.

Derek and I regularly cross swords on the CA judgement in question; he argues the context is fundamentally different, I take the view the principle holds good today.

That said, as and when I’m up to it, I’ll try and find a way it can be argued that the communal lounge can be allowed.  Just for clarity, is it the FUEL for the room that is in question, or the separated charge for USE of the room?

High Court and CA cases in question are:

R v St Edmundsbury BC HBRB ex parte Sandys [1997] EWHC Admin 711 QBD
R v Swansea Council HBRB ex parte Littler [1998] EWCA Civ 1214

Both are available on BAILII.

Stainsby and Kevin,

As always thank you for your detailed responses and for the references to case law and decisions.

Kevin, yes the argument is about fuel for the communal lounge.

Cheers

John

John - 30 November 2010 09:02 AM

the argument is about fuel for the communal lounge.

By “extra-care”, I’m assuming it is a purpose built block where tenants have their self-contained accommodation (i.e. no shared bathroom / kitchen).  Further, the complex will have SEPARATE rooms, such as the lounge in question, (possibly even a restaurant/canteen and/or even a small shop or two).  Care is presumably provided by on-site carers and, where care is provided, it is arranged by Social Services, although the complex manager and staff will obviously work in conjunction with each other.

If all the above is correct, it would appear to fall well within the meaning of “sheltered accommodation”, whether or not it is also “extra care”.  On that basis, I am astonished at the LA’s decision and my view is it is simply wrong.

In turn, this issue is not one for which the “...connected with the provision of adequate accommodation…” provision is relevant.

The relevant provisions are paras 5 and 8 of the HB regulations (both working age and pension age flavours).

Para 5:  A service charge for fuel except a charge in respect of services for communal areas shall be ineligible to be met by housing benefit.

Translation of para 5:  Fuel charges for “communal areas” are eligible (subject to being reasonable).

Para 8: “communal areas” mean areas (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation;

“fuel” includes gas and electricity and a reference to a charge for fuel includes a charge for fuel which includes an amount in respect of the facility of providing it other than a specified amount for the provision of a heating system

It seems to be the meaning of “communal areas” is at issue.  In short, rooms of common use in sheltered accommodation are “communal areas”.  In turn, the fuel charges for such areas are eligible.  If the LA argues the claimants do not occupy “sheltered accommodation”, the LA should be asked to explain why - formal requests for SoRs and/or appeals should be made (bear in mind the time limits).