Caselaw request

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 3 posts - 1 through 3 (of 3 total)
  • Author
    Posts
  • #39201
    hpolec
    Participant

    Hi, :~
    Does anyone have a copy of CH/1363/2006 that they can forward me.
    Despite much searching I cannot find this case anywhere and it would be useful for the appeal I am dealing with.

    Thanks

    #111295
    Nicky
    Participant

    DECISION OF SOCIAL SECURITY COMMISSIONER

    1. My decision is that the decision of the appeal tribunal given at Sutton on 19 May 2005 is erroneous upon a point of law. I set it aside. I make the decision that the tribunal ought to have made. It is to find that the claimant was not entitled to housing benefit for the period of four weeks before he moved into 162C, East Hill, London SW18 2HF on 22 December 2003.

    2. The appellants who are Wandsworth Council have appealed to the Commissioner against the decision of the tribunal which was:

    “The appeal is allowed.

    [The claimant] is entitled to housing benefit for a period of four weeks before he moved into 162 East Hill on 22/12/2003 because regulation 5(5)(e) applies.”

    3. The grounds of appeal are as follows:

    “The Council maintains that for a person to qualify for payment on two homes under Regulation 5(5)(e) of the Housing Benefit (General) Regulations 1987 where they are relying on meeting the requirements in 5(6)(c)(i), that providing carpets and furniture does not constitute an adaptation within the meaning of this part of the Regulation.

    The Regulation states that the dwelling needs to be adapted to meet the disablement needs of someone who will occupy the property.

    The Regulation does not define ‘adapt’ so in everyday usage we would argue that furnishing and carpets would not be classed as an adaptation, but as an addition or enhancement to a dwelling.

    A dwelling is a place of residence and by the addition of furniture and carpets the dwelling itself has not been ‘adapted’.

    Furthermore furniture and carpets could be seen as a general requirement for everyone so could not be classed as an adaptation to meet a specific disablement need.

    The Council feels that the Tribunal has erred in the interpretation of the relevant Regulation.”

    4. The claimant’s response to the grounds of appeal is as follows:

    “At paragraph 2, it is stated that ‘The Regulation states that the dwelling needs to be adapted to meet the disablement needs of someone who will occupy the property’.

    Regulation 5(6)(c)(i)

    ‘the delay in moving into the dwelling in respect of which there was liability to make payments before moving in was reasonable and–

    (i) ‘that the delay was necessary in order to adapt the dwelling to meet the disablement needs of that person or any member of his family’.

    It is respectfully submitted that the regulation does not refer to someone but specifically states that the delay was necessary in order to adopt the dwelling to meet the disablement needs of that person and does not refer to the disablement needs of someone.

    It is respectfully submitted that the appellant authority, in substituting the word ‘someone’, rather than using the word in the regulation, have failed to understand the intentions of the legislator, who clearly intended the disablement needs which had to be med in adapting the dwelling, to be absolutely particular to the disabled person, that is to say to that person and not the generality of need which the appellant authority’s substituting the term someone would indicate.

    It is the disablement needs of that claimant i.e. the claimant with all the disabilities of that particular claimant, which have to be met.

    At paragraph 3, it is stated ‘the regulation does not define ‘adapt’ so in every day usage we would argue that furnishing and carpets would not be classed as an adaptation, but as an addition or enhancement to a dwelling’.

    It is submitted that this is precisely what is at issue in the present case. The regulation does not refer to every day usage, it refers to a very specific person i.e., that person.

    It is respectfully submitted that, in focusing on the particularity of the adaptations in relation to the needs of someone or everyone, rather than the adaptations in relation to the particularity of the needs of that claimant, the appellant has misinterpreted the law.”

    5. The tribunal found that the claimant suffers from schizophrenia. The tribunal went on to make the following finding in fact:

    “4. [The claimant] did not move into the flat at 162C East Hill until 22/12/2003 because it was necessary due to his mental state that the flat be ready for occupation by him. The flat was unfurnished and so it was necessary firstly to apply for and obtain a community care grant (this was awarded on 20/11/2003 – see p. 113 in the Schedule of Evidence) and then for Ms Reinders to help [the claimant] budget and accompany him to choose and purchase furniture and other household items. As Ms Reinders explains in her letter at p. 144 in the Schedule of evidence:

    ‘[The claimant] had never lived independently before and was extremely anxious at the prospect of living in his flat. When he lived with his wife some years ago, she had done all the shopping and he had no idea how to shop for essential furniture. His flat contained no furniture whatsoever and [the claimant] needed to be accompanied when he went shopping to buy a bed, curtains, carpets, fridge, cooker, bedding, etc. As [the claimant] needed me to accompany him, this further delayed the move as I had to make the time to accompany [the claimant] to the shops to help him chose (sic) his furniture. His previous accommodation at Church Road Hostel was carpeted and [the claimant] did not feel able to move into his flat until the carpets were fitted.’

    Ms Reinders goes on to state that:

    ‘[The claimant] suffers from chronic schizophrenia and for him to move into his flat with no furniture would probably have exacerbated his mental illness to the extent that he would have required admission to hospital’.”

    6. The basis for the tribunal’s decision is set out in paragraph 4 of their reasons where it is said:

    “4. My reasons for this conclusion were as follows. [The claimant] could be treated under regulation 5(6) as occupying 162C East Hill for four weeks prior to the date he moved in because he was liable to make payments in respect of 162 East Hill from the start of the tenancy on 10/11/2003 and he did make a claim for housing benefit in respect of 162C East Hill before moving in and at the date he moved in that claim had not been decided. Furthermore, in my view the delay in moving into 162C East Hill was reasonable and was necessary in order to adapt the flat to his disablement needs. In the light of Ms Reinders’ opinion, as his mental health support worker, that to have required him to move into the flat without furniture and carpets would have had a deleterious effect on his mental health to the extent that he may have required admission to hospital, I consider the adaptations to the flat (that is getting it furnished, carpeted and put in order) were necessary to meet [the claimant’s] disablement needs before he could move in. I also accept that the time taken to make these adaptations was reasonable because [the claimant] was unable due to his mental health to undertake the tasks involved (budgeting, shopping, etc) without the assistance of Ms Reinders and she had to fit this in with her other work and also to provide a high level of support to [the claimant] throughout the period before he moved in because of his anxiety about the move. [The claimant] therefore fulfils head (i) of regulation 5(5)(e). He also satisfies head (ii) as he occupied another dwelling, namely his accommodation at the Church Road hostel, during the four week period before he moved into 162C East Hill.”

    It is clear from these reasons that the tribunal interpreted the word ‘adapt’ in respect of the house as being:

    “Getting it furnished, carpeted and put in order.”

    7. I am satisfied that the appellant’s grounds of appeal are sound. Adaptation of a property to meet disablement needs would, in my view, require more than furnishing it, carpeting it and putting it in order. It is clear to me that what the legislation has in mind would be such provision as fixed handrails, raised lavatories, widened doors and alterations to the structure of the building to meet a disablement need. The claimant, through his representative seeks to widen the scope of the regulation beyond what it was intended to bear. The provision of furnishings and carpeting may render a building habitable and more congenial to live in. What it does not do is alter, change or add to the structure or fabric. I am satisfied that a change to the fabric or structure of the building is necessary, not simply the placing of furnishing or carpeting within it in order to adapt it. I accept “that the statutory provisions are directed to “the disablement needs of that person” not “someone” but it is the scope of the word “adapt” which is crucial in the context of the disablements needs of “that person”. If what was done was not encompassed by the word “adapt” then the claimant cannot succeed. That is the position in this case.

    8. The appeal succeeds.

    (Signed)
    D J MAY QC
    Commissioner
    Date: 21 August 2006

    #111306
    hpolec
    Participant

    thanks for that Nicky appreciate the help.

Viewing 3 posts - 1 through 3 (of 3 total)
  • You must be logged in to reply to this topic.