Oxford City Council v Basey

“Sheltered accommodation” is an inherently flexible concept. Where legislation leaves the expression undefined, the court should not impose a prescriptive definition by treating features such as self-containment, a warden, an alarm system or communal facilities as essential. The question is whether the accommodation has features designed to meet the needs of vulnerable occupiers; the listed features are relevant examples, but none is determinative. Very sheltered or extra-care housing may therefore qualify, even where substantial care and support are provided and residents cannot live wholly independently. The concept remains distinct from a care home. Relevant considerations include the basis on which the accommodation is occupied, including whether the occupier has exclusive possession under a tenancy and is liable for rent and eligible service charges.

The respondent, a tenant with severe learning disabilities, occupied one of four rooms in housing association accommodation. The tenants shared several rooms and received care, support and supervision from staff, including overnight provision. The issue was whether the accommodation was “sheltered accommodation” under the Housing Benefit Regulations 2006, so that the respondent’s share of fuel and cleaning costs for rooms of common use could be included in eligible rent.

The First-tier Tribunal held that it was not sheltered accommodation. The Upper Tribunal, Judge Levenson, allowed the respondent’s appeal, holding that the First-tier Tribunal had applied an unduly restrictive definition. The local authority appealed to the Court of Appeal on the meaning and scope of “sheltered accommodation”.

1. Appeal dismissed. The Upper Tribunal was correct to conclude that the respondent’s accommodation was sheltered accommodation for the purposes of the Housing Benefit Regulations 2006.
2. Parliament had left “sheltered accommodation” undefined. The court should therefore avoid imposing a highly prescriptive definition on an inherently flexible and evolving concept. The six features advanced by the appellant—self-contained accommodation, grouping, design for vulnerable persons, a warden, an alarm system and communal facilities—were no more than non-exhaustive examples. Their presence or absence was not determinative.
3. Sheltered accommodation is distinguishable from ordinary accommodation by particular features designed to meet the needs of vulnerable occupiers. It may include very sheltered or extra-care housing for people less able to manage on their own. The ability to live independently is not a hard-edged requirement, and there is no principled basis for excluding accommodation merely because it is close to a care home in the level of care provided.
4. The statutory scheme supported that conclusion. The definition of “dwelling” in section 137(1) of the Social Security Contributions and Benefits Act 1992 contemplated residential accommodation that was not self-contained. The provision for fuel and cleaning charges relating to rooms of common use in sheltered accommodation also indicated that self-containment was not essential. The preferential treatment of communal rooms reflected the assumption that they may be needed to provide adequate accommodation for vulnerable occupiers.
5. A care home remained outside the concept. The emphasis in a care home would usually be more on care than accommodation, and occupation would typically be under a licence. By contrast, a person with exclusive possession of living space in sheltered accommodation would ordinarily occupy under a tenancy and be liable for rent and eligible service charges.

Lord Justice Etherton and Lord Justice Mummery agreed with Lord Justice Sullivan.

• Court of Appeal (Civil Division): dismissed the local authority’s appeal, holding that the accommodation was sheltered accommodation for the purposes of the Housing Benefit Regulations 2006.
• Upper Tribunal (Administrative Appeals Chamber): on 28 March 2011, allowed the respondent’s appeal from the First-tier Tribunal and held that the accommodation was sheltered accommodation. No neutral citation is stated in the judgment.
• First-tier Tribunal (Social Entitlement Chamber): on 15 May 2009, concluded that the accommodation was not sheltered accommodation.