S, R (on the application of) v Social Security Commissioner & Ors

For the supported-housing exemption, whether care, support or supervision is provided “on behalf of” an accommodation provider is fact-sensitive. Relevant considerations include whether the provider benefits from the services and whether their provision is authorised or required by the provider. A separate contract with, and payment by, a local authority does not necessarily prevent the services being provided on the accommodation provider’s behalf.

Judicial review of a Social Security Commissioner’s refusal of permission to appeal may be available where the statutory appeal structure provides no further appeal. At the permission stage, it was sufficient that the challenge raised a very substantial arguable point of law, particularly where the issue had serious consequences for vulnerable people and wider public significance.

The claimant, a vulnerable adult living in supported accommodation, challenged a Social Security Commissioner’s refusal of permission to appeal from a tribunal decision concerning housing benefit. The tribunal had proceeded on a concession that care, support and supervision supplied by Lifeways was not provided on behalf of the housing association, Rivendell, following the Commissioner’s earlier decision in R(H) 2/07.

The claimant argued that the Commissioner had misconstrued the phrase “acting on its behalf” in paragraph 4 of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. The central issues were whether the proposed challenge raised a sufficiently substantial point of law and whether judicial review was an appropriate remedy in this specialist statutory appeal context.

1. Permission granted. The claimant established that it was arguable that the Commissioner had erred in law in construing “acting on its behalf”.
2. The phrase must be construed in its legislative context and against the facts of the particular arrangement. The reasoning in Gaspet v Ellis and R v O’Loughlin supported two relevant elements: benefit to the alleged principal and authority, consent or approval. The wording did not require a direct contractual relationship.
3. On the material before the court, Lifeways was contractually authorised, and required, to provide care services for Rivendell’s benefit. The fact that Lifeways was also contracted by, and paid by, the Council did not necessarily answer the question. An agent may act on behalf of two principals.
4. The statutory housing-benefit appeal structure contained no statutory appeal against a Commissioner’s refusal of permission. Judicial review was therefore, in principle, the available route, as recognised in Regina v Secretary of State for Social Services ex parte Connolly. The specialist nature of the jurisdiction required caution, consistent with Cooke v Secretary of State for Social Security.
5. For this permission hearing, the court applied the approach accepted in R (on the application of Stephen Hook) v The Social Security Commissioner: the question was whether the decision raised a very substantial point of law and whether an error of law was arguable.
6. The absence of a full tribunal statement of reasons was not fatal. The issue affected the claimant and several thousand similarly vulnerable people, involved little material factual dispute, and had significant practical and policy consequences. Permission was granted.

High Court (Administrative Court): Mitting J refused permission on the papers on 11 June 2008. On renewal, Judge Bidder QC granted permission to apply for judicial review.