R (on the application of S (by his Litigation Friend the Official Solicitor)) v Social Security Commissioner & (1) Secretary Of State For Work & Pensions (2) Walsall Metropolitan Borough Council (Interested Parties) (2009) EWHC 2221

S required constant care, support and supervision due to a mild learning disability and resided in supported housing as an assured tenant. The landlord, a housing association, did not provide any support; instead this was commissioned by the Local Authority from a third party, Lifeways Community Care. The Local Authority had paid the entire rent, of £195.27 per week, through housing benefit on the basis that the accommodation was exempt under Sch.3 para.4(10) of the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. This provision allowed for payments over and above the usual maximum rent for an area (as determined by a rent officer) to be paid where the property is provided by the council, a housing association etc and “that body or a person acting on its behalf also provides care, support and supervision.” Following an earlier ruling by the Social Security Commissioner [the ‘SSC’] on the interpretation of the regulations the Local Authority revised its assessment of S’s accommodation so that it was no longer considered exempt and reduced the housing benefit payments to £65 per week. This decision by the Local Authority was upheld by the SSC on appeal and S sought to challenge, by way of judicial review, the SSC’s ruling.

The Court considered the nature of the contractual arrangements between S, the Local Authority, the landlord and Lifeways. It determined that the accommodation was provided by the housing association on the basis of a normal assured tenancy agreement. This did not require the landlord to provide any care, support or supervision. S’s care package was provided by Lifeways in accordance with a contract between Lifeways and the Local Authority. Were Lifeways to fail to make available suitable provision the Local Authority would be required to meet this need, not the landlord. The Court recognised that there was a contract in place between the landlord and Lifeways but did not accept that this materially affected the essential framework for the provision of S’s accommodation and care. The Court determined that the regulations were clear that accommodation would only be exempt under Sch.3 para.4(10) where the liability for provision of care would fall on the accommodation provider if the care provider were unable to make suitable provision. In refusing the application for judicial review, the Judge commented that the phrase ‘on behalf of’ should be interpreted narrowly so as to mean “in its place” or “instead of”, but also explained that even if it were interpreted more widely, as S had contended, the contractual arrangements for meeting S’s accommodation and care needs were entirely separate such that Lifeways could not be said to ever be acting on behalf of the landlord.

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