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

For accommodation to qualify as “exempt accommodation”, care, support or supervision must be provided by the accommodation provider or by another body acting in its place or instead of it. The phrase “on its behalf” takes its meaning from the statutory context; it does not extend to services that merely benefit the landlord or form part of a wider joint venture. The accommodation provider must have ultimate responsibility for providing the relevant services. A separate statutory duty on a local authority to provide care, discharged through an independent care provider, does not satisfy that requirement merely because the provider has a contractual relationship with the landlord. Difficulties arising from changes in service provision are matters for policy or legislative reform, not a basis for adopting an alternative construction.

The claimant sought judicial review of a Social Security Commissioner’s refusal of permission to appeal against a tribunal decision concerning housing benefit. The tribunal had held that accommodation supplied by Rivendell Lake Housing Association was not “exempt accommodation” under paragraph 4(10) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006.

The claimant lived in supported accommodation. Rivendell supplied the tenancy, while Lifeways supplied care, support and supervision under an agreement with Walsall, which was subject to a statutory duty to provide those services. Rivendell and Lifeways also had a management or partnership agreement. The central issue was whether Lifeways provided the services “on behalf of” Rivendell.

1. Claim dismissed. The Social Security Commissioner was right to refuse permission to appeal. The accommodation was not exempt accommodation within paragraph 4(10) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006.
2. The phrase “on behalf of” has no fixed meaning and must be construed in its statutory context. In this context it bears the narrow meaning of acting in the accommodation provider’s place or instead of it. The statutory reference to the provider also supplying care, support or supervision focuses attention on the provider’s responsibility for those services.
3. The accommodation provider must itself provide the services or arrange for another body to provide them in its place. The provider must retain ultimate responsibility. Services supplied by another body merely for the benefit of the landlord, or as part of a co-operative housing and care arrangement, are insufficient.
4. Walsall owed the relevant statutory duty under section 2 of the Chronically Sick and Disabled Persons Act 1970. It discharged that duty through its agreement with Lifeways. That arrangement was independent of Rivendell’s tenancy and continued irrespective of Rivendell’s role. Rivendell was never required or expected to provide the claimant’s care, support or supervision.
5. The agreement between Rivendell and Lifeways clarified their respective responsibilities but did not make Lifeways Rivendell’s agent, nor did it confer on Rivendell ultimate responsibility for care. The claimant’s accommodation and care were legally distinct provisions. The statutory condition was therefore not met.
6. The legislative history and policy material supported the narrow construction. The later difficulties identified by the Commissioner in Chorley BC v IT (2009) UKUT 107 (AAC) did not make the legislation absurd or justify judicial alteration. Any policy or legislative change was for the Secretary of State and Parliament.

• Social Security Appeal Tribunal: dismissed the claimant’s appeal against the reduction of housing benefit.
• Social Security Commissioner: refused permission to appeal on 11 December 2007.
• High Court (Administrative Court): dismissed the judicial review claim.