In search of shelter

The sums involved may been small, but a recent Court of Appeal case on 'sheltered' accommodation is set to have a big impact on local authorities.

In Oxford City Council v John Basey (By his litigation friend Tarquin May) [2012] EWCA Civ 115 the Court of Appeal has determined that the Upper Tribunal (Administrative Appeals Chamber) had been entitled to find that a man with a severe learning disability resided in sheltered accommodation for the purposes of the Housing Benefit Regulations 2006.

It was not essential for accommodation to be self contained or to have a warden in order to be considered “sheltered”, the court said. He was found to be entitled to have his share of the costs of fuel for, and cleaning of rooms for common use included in his eligible rent when calculating his housing benefit. If Parliament had wished to introduce a distinction between supported and sheltered accommodation in the regulations it could have done so.

Facts

The claimant was a 64 year old man who had severe learning disabilities. He resided in a housing association property with three other tenants who had similar difficulties to himself. Each of the tenants of the property had their own bedroom and shared a kitchen, bathroom, two toilets, two sitting rooms and a further room. The tenants were provided with care, support and supervision 24 hours a day and for two to three hours this was on a one to one basis. The local authority determined that the claimant did not reside in “sheltered accommodation” for the purposes of housing benefit legislation as the property was not self contained and did not have a warden.

Discussion

The First-tier Tribunal concluded that the appellant did not reside in sheltered accommodation. The Upper Tribunal however, found that the First-tier Tribunal had applied an “unduly restrictive definition of sheltered accommodation” (paragraph 4) and reached the view that the accommodation was sheltered accommodation for the purposes of the regulations. The Court of Appeal then held that the Upper Tribunal had been correct.

“Sheltered accommodation” is not defined in the Regulations or any other statutory material concerning the housing benefit scheme. The Court of Appeal concluded that the type of accommodation the appellant resided in was sheltered accommodation for the purpose of the regulations as the Upper Tribunal had concluded. It was noted that Parliament had not chosen to define sheltered accommodation and “the Court should not impose a prescriptive definition upon an inherently flexible concept which can take many different forms, and which now includes very sheltered or extra care sheltered accommodation.” (Paragraph 33).

The Court placed types of accommodation along a spectrum with one end of it being accommodation which was “distinguishable from ordinary” accommodation because it incorporates 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.

“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 sums in issue in this case were described by Lord Justice Sullivan as very modest. A total of £19.50 per week: £15.37 per week for fuel and £4.13 for cleaning. The Upper Tribunal were told however “that this was one of a large series of related appeals, and that its decision would affect very many other claimants in the area” of the local authority and other local authorities.

Vicki Silvester is a solicitor at Weightmans. She can be contacted on 0151 243 9853 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..