Reply To: 69(8) General Regulations 1987


It's a short decision, so I have posted it below:

R v Maidstone Borough Council, ex parte Bunce


27 HLR 375, The Times 30 June 1994

(Transcript: John Larking)


BROOKE J23 JUNE 199423 June 1994


R Drabble for the Applicant; M Bailey for the Respondent

Sinclair Taylor & Martin; Legal Department, Maidstone Borough Council


In July 1992 Mrs Irene Clara Bunce, the Applicant in this case, was 70 years old. She suffers from diabetes and poor sight. Her daughter Geraldine had suffered all her life from encephalitis, or inflamation of the brain, which caused her to be mentally handicapped, and she also had a twisted foot which restricted her mobility. Her mother had always been Geraldine's primary carer at home, a role she performed on her own for twenty-nine years since her husband left her.

Geraldine is entitled to an attendance allowance pursuant to the provisions of s 35 of the Social Security Act 1975. In the ordinary course of things one would have expected her mother to be entitled to an invalid care allowance pursuant to s 37 of that Act, subject to any considerations about overlapping benefits which I will mention in due course. If she was regularly and substantially engaged in caring for a severely disabled person and was not gainfully employed, and the severely disabled person was her daughter, she was, prima facie, qualified for that allowance under s 37 (1) and the Regulations laid thereunder. For some reason which counsel was not able to explain, if a person had attained pensionable age, s 37 (5) of the Act provided that he or she should not be entitled to an invalid care allowance unless he or she was so entitled (or was treated by the Regulations as so entitled) immediately before attaining that age. I was told by counsel that this problem might occur if a person failed to claim invalid care allowance although otherwise entitled to it, before reaching pensionable age. However that may be, it was undoubtedly the case that Mrs Bunce was not in receipt of invalid care allowance although, on the face of it, she met all the statutory criteria.

This fact penalised her when she came to claim housing benefit. Entitlement to housing benefit is governed by the Housing Benefit (General) Regulations 1987. Whether Mrs Bunce was entitled to have her rent paid in full was governed by a formula which set her weekly income at #57.40 from her retirement pension against what was called an "applicable amount." This latter concept is explained in reg 16 and Sch 2 to the Regulations. It was common ground she was entitled to a personal allowance of #39.65 under para 1 of Sch 2, and a pensioner premium of #13.75 under para 9 and s 15 (2). It was also common ground she was not entitled to carer premium of #10.80 under paras 14 ZA and 15. If she had been, the total "applicable amount" would have been #64.20, in excess of her weekly income, and she would have been entitled to receive housing benefit equal to the whole amount of her weekly rent. As it was, the total "applicable amount" was #53.40, #4 less than her weekly income, so that to that extent her housing benefit was reduced.

As I have said, she was not in receipt of invalid care allowance for all the rather complicated reasons I have already described and she, therefore, did not qualify for carer's premium under para 14 ZA (1) of Sch 2. Paragraph 14 ZA (2) provides:

"If a claimant ….. would be in receipt of invalid care allowance but for the provisions of the Social Security (Overlapping Benefits) Regulations 1979, where –

(a) the claim for that allowance was made on or after October 1st 1990, and

(b) the person ….. in respect of whose care the allowance has been claimed remains ….. in receipt of attendance allowance, he ….. shall be treated for the purposes of sub-paragraph (1) as being in receipt of invalid care allowance."

This means there is a category of people who may be notionally treated as being in receipt of invalid care allowance for the purposes of qualifying for a carer's premium, even though they do not, in fact, receive it because of rules relating to non-entitlement of benefits which overlap with others. Mrs Bunce did not qualify, however, in that category either. She had all the responsibilities of a carer but did not qualify for carer's premium.

Recourse was therefore had by her advisers to reg 69 (8). This regulation is concerned with the calculation of the amount of housing benefit to which a claimant is entitled in any benefit week. Regulation 69 (8) provides, so far as is material:

"The appropriate authority may, if a claimant's circumstances are exceptional, increase the weekly amount of any housing benefit to be paid in his case."

Where a claimant's circumstances are exceptional, it is a question of fact for the authority to decide. This court will not interfere with its decision except on one or other of the familiar, but fairly limited, grounds on which it exercises its supervisory jurisdiction over inferior decision-making bodies. My attention has been drawn to para 5.52 of the Guidance Manual issued by the Department of Social Security which states:

"Authorities have discretion to increase benefit in individual exceptional circumstances. Exceptional circumstances might include loss of savings because of a burglary, or unforeseen need due to non-payment of wages. Increases should not be awarded under this regulation on the basis of pre-defined conditions which would be applicable to whole groups."

This helpful practical advice does not have the same effect of statute. It draws attention to the need for the authority to concentrate its attention on the facts of the particular case before it. It must ask: can the claimant's circumstances properly be described as "exceptional", giving that word its natural and ordinary meaning? The fact it is in a local authority area and there may be other people whose cases are similar does not mean that it, or each of them, cannot reasonably be described as "exceptional." It will be a question of fact and degree in each case. When Mrs Bunce's advisers failed to persuade the Housing Benefit Section of the Maidstone Borough Council that her circumstances should be treated as exceptional, the issue was referred to a Housing Benefit Review Board, and it is the determination of that Board. dated 8 July 1992, which is under challenge in these proceedings.

The Board decided it was not satisfied that her circumstances were exceptional. Its determination was set out on one sheet of paper which contained four findings of fact and one reason for decision.

Only two of the findings of fact are material. I quote them in full:

"(2) That Mrs Bunce is 70 years old, diabetic and has poor sight and that she is carer to her handicapped adult daughter.

"(3) That due to the operation of the benefit regulations Mrs Bunce is ineligible to have a carer's premium taken into account in calculating her housing benefit entitlement because she is in receipt of retirement pension and is over 65 years old."

The reason for the decision was set out as follows:

"That the circumstances of Mrs Bunce are in the Board's view unfortunate but not such as to make her case exceptional. Her personal circumstances are similar to many others and not grave or special enough to be exceptional. The circumstance that she is ineligible for the carer premium is created by the regulations and not exceptional to Mrs Bunce as it is common to a group of people who fit the criteria under the regulation."

Finding of fact (3), put in those bald terms, is simply wrong as a matter of law. If it was correct, then nobody over 65 who is in receipt of retirement pension would be eligible to have carer's premium and this is not what the law provides. Mrs Bunce appears to have been in the unhappy position she found herself in because of the effect of s 37 (5) of the Social Security Act 1975. If she had been entitled to an invalid allowance immediately before she attained pensionable age she would unquestionably have been eligible to have a carer's premium. Counsel suggested that the reason why she was not so entitled was she never applied for one.

Mr Bailey, who appeared for the local authority, submitted that I ought to assume the Board did, in fact, appreciate the true position, even if it did not make this clear in its decision, because the relevant evidence was before it. I have to take its decision as I find it, however, and the use of the word "because" can lead to no other conclusion than the one I have expressed above.

Given this misdirection, in my judgment, the Board's decision cannot stand. If it was the fact that the Board believed that nobody over 65 years who was in receipt of retirement pension qualified for carer's premium, it is hardly surprising that it reached the conclusion that Mrs Bunce's personal circumstances were similar to many others. But if it had appreciated that the only reason why she did not qualify for carer's premium, although she had looked after her severely handicapped daughter single-handed for the last twenty-nine years, was that she had simply not applied for invalid care allowance before she reached pensionable age, if that was indeed the case, then it would have been incumbent on the Board, on the evidence before it, to ask itself whether this was an exceptional case or whether there were many others deprived of carer's premium by this odd quirk of the Act and the Regulations. The fact that there might be a few other people in positions similar to Mrs Bunce would not, as I have already said, lead necessarily to a conclusion they could not qualify under reg 69 (8) if the authority or the Review Board felt that it could reasonably reach a conclusion that their circumstances were exceptional.

For these reasons, it necessarily follows that the decision of the Board dated 8 July 1992 should be quashed.

Application granted