IN THE UPPER TRIBUNAL	Case No.  CH/4319/2013
ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:  The claimant’s appeal is allowed.  The decision of the First-tier Tribunal dated 9 July 2013 is set aside and there is substituted a decision that the claimant’s housing benefit is to be calculated from 1 April 2013 on the basis that no reduction is to be made from her eligible rent under regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/213).

REASONS FOR DECISION

1.	This is an appeal, brought by the claimant with permission granted by the First-tier Tribunal, against a decision of the First-tier Tribunal dated 9 July 2013, whereby it dismissed her appeal against a decision of the local authority dated 23 February 2013 to the effect that her housing benefit was to be calculated from 1 April 2013 on the basis that a 14% reduction was to be made to her eligible rent because she was under-occupying her home.

2.	The relevant legislation is to be found in regulations A13 and B13 of the Housing Benefit Regulations 2006 (SI 2006/213), which were inserted into those Regulations by regulation 5(7) of the Housing Benefit (Amendment) Regulations 2012 (SI 2012/3040) with effect from 1 April 2013.  It is not in dispute that a “maximum rent (social sector)” was required to be determined by virtue of regulation A13 or that regulation B13 (1) to (3) requires a reduction of 14% to be made to a claimant’s eligible rent “where the number of bedrooms in the dwelling exceeds by one the number of bedrooms to which the claimant is entitled”.  The dispute is over the number of bedrooms to which the claimant is entitled for the purposes of regulation B13.

3.	Regulation B13 was further amended by regulation 2(3) of the Housing Benefit (Amendment) Regulations 2013 (SI 2013/665) from the date it originally came into force, so that paragraphs (5) and (6) provided that –

 “(5) The claimant is entitled to one bedroom for each of the following categories of person whom the relevant authority is satisfied occupies the claimant’s dwelling as their home (and each person shall come within the first category only which is applicable)— 
    (a)	a couple (within the meaning of Part 7 of the Act); 
    (b)	a person who is not a child; 
    (c)	two children of the same sex; 
    (d)	two children who are less than 10 years old; 
    (e)	a child.
  (6)  The claimant is entitled to one additional bedroom in any case where –
    (a)	the claimant or the claimant’s partner is (or each of them is) a person who requires overnight care; or
    (b)	 ….”

4.	The claimant lives in a three-bedroom house.  She formerly occupied it with her three daughters, but two of her daughters have moved out.  Therefore, as is common ground, she was entitled to only two bedrooms unless she was a “person who requires overnight care”.  The claimant’s case before the First-tier Tribunal was that she was such a person and was therefore entitled to three bedrooms so that no deduction should have been made from her eligible rent under regulation B13.  The local authority’s case was that she was not such a person and so was entitled to only two bedrooms and the 14% reduction was required.

5.	The term “person who requires overnight care” is defined in regulation 2(1) of the 2006 Regulations, as amended by regulation 2(2)(a) of the Housing Benefit (Amendment) Regulations 2010 (SI 2010/2835), which provided –

“‘person who requires overnight care’ means a person (“P”)— 
    (a)	who— 
    (i)	is in receipt of attendance allowance; 
    (ii)	is in receipt of the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Act; or 
    (iii)	although not satisfying either paragraph (i) or (ii) above has provided the relevant authority with such certificates, documents, information or evidence as are sufficient to satisfy the authority that P requires overnight care; and 
    (b)	whom the relevant authority is satisfied reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should— 
    (i)	be engaged in providing overnight care for P; 
    (ii)	regularly stay overnight at the dwelling for that purpose; and 
    (iii)	be provided with the use of a bedroom in that dwelling additional to those used by the persons who occupy the dwelling as their home, 
but ….”

Amendments made with effect from 8 April 2013 are not material to this case.

6.	It was common ground that the claimant, who suffers from severe eczema and severe asthma, satisfied the condition imposed by head (a)(ii) of that definition, by virtue of entitlement to the middle rate of the care component of disability living allowance.  The dispute was over head (b), and particularly head (b)(ii).

7.	Before the new regulations A13 and B13 came into force, the local authority informed the claimant of their effect and sought information about the claimant’s needs.  She said that her spare room was “used when I need care overnight” but, in a letter dated 18 October 2012, the local authority said that, because the middle rate of the care component of disability living allowance had been based on her satisfaction of the “day” attendance needs, rather than the “night “attendance needs (see section 72(1)(b) and (c) of the Social Security Contributions and Benefits Act 1992 respectively), it “would appear that you do not have a regular need of a bedroom for a non-resident carer”.  There was no further correspondence from the claimant before the formal decision was made on 23 February 2013.

8.	In support of her appeal against that decision, the claimant provided a letter from Professor P H Howarth, her consultant physician, dated 25 April 2013.  He said –

“I am writing on behalf of [the claimant] who is under my specialist care at Southampton general hospital concerning her difficult-to-control asthma.  This frequently disturbs her sleep at night and because of the unpredictability of her condition she may well need and often does have someone staying overnight to look after her.  As this may not be every night she is concerned about the implications as far as “the bedroom tax” is concerned.  I am thus writing to confirm the details of her medical condition, the unpredictability of it and her nocturnal sleep disturbance on account of asthma and the potential need to have someone on occasions staying overnight.”

9.	The First-tier Tribunal held an oral hearing at the request of the local authority.  The claimant did not attend.  The First-tier Tribunal dismissed her appeal.  Having referred to the history, the legislation and Professor Howarth’s letter, the statement of reasons for the decision says –

10. 	On an appeal the Tribunal stands in the shoes of the relevant authority. I am satisfied that [the claimant] reasonably requires, and has arranged, what she calls a "network" of people other than her daughter who provide overnight care for her. There is no evidence to the contrary. I am also satisfied that, on those occasions when she needs a carer at night, it is reasonable for that person to have the use of the third bedroom.

11. 	Do the carers "regularly stay overnight"? The Regulations contain no definition of the word "regularly". However, in normal English usage it denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even. It may not necessarily happen frequently; and hence it is not fatal to [the claimant’s] case that her award of Disability Living Allowance does not include an element for "night needs".

12. 	By contrast, Professor Howarth speaks of the unpredictability of [the claimant’s] condition and the "potential need to have someone on occasions staying overnight". This suggests a need for someone to be "on call" to come to her home during exacerbations of her asthma and then to stay overnight in order to care for her. This is consistent with [the claimant’s] own reference to overnight care "when needed".

13. 	I find, then, that, although [the claimant] sometimes needs someone to stay overnight at her home in order to care for her, and although Professor Howarth's letter suggests that this happens often, it is not happening regularly. Consequently, she is not a person who requires overnight care as defined by the legislation and is subject to a 14% reduction in her maximum rent.

14. 	I confess that I am not comfortable with this outcome. If my interpretation of regulation 2 is correct, it could easily result in one payment being a person who requires overnight care whilst another, who needs it more often but less predictably, is not. However, it would have been easy for the draftsmen [to] avoid the use of the word "regularly" either by using a word such as "frequently" instead or by prescribing a number of nights in a week or month which would satisfy the definition. With considerable reluctance, I have refused the appeal.”

It was the judge who made that decision who granted permission to appeal and, when doing so, he said that “payment” in the second line of paragraph 14 should have read “claimant”.  I am not sure that that cures the problem with the sentence but one can see what he was getting at.  He was concerned that one claimant requiring night-time care more often than another might be entitled to a lesser amount of benefit than the other merely because his or her need for a carer to stay overnight was irregular and the other’s was regular.

10.	In her grounds of appeal, the claimant has stated that she has been admitted to hospital on numerous occasions, usually in the early hours of the morning, when she has had to get an ambulance called.  I asked her for further information about how often her carers stayed with her.  She replied –

“In February 2013 I had my medication increased by my asthma specialist due to my health deteriorating.  Around that time I needed my carer stay overnight for approx 6 weeks, until I was well enough to look after myself.

In the last year, I have had my carer staying overnight for 2 weeks or more on numerous occasions due to ill health.

Due to damp conditions in the winter and summer allergies my condition is very unpredictable, on average over a month I would say I have needed overnight care 15-20 days.  This figure would increase when I have chest infection (which are frequent) or when I am going through a bad time.”

11.	The local authority resists this appeal, effectively repeating the grounds upon which it made its original decision.  It also refers to Bolton MBC v BF (HB) [2014] UKUT 48 (AAC) and argues that that shows that the carer could sleep in a room other than a bedroom so that the requirement for an additional bedroom is not made out.  In reply, the claimant asserts that she is entitled to a bedroom for a carer because it would not be reasonable to require a carer to sleep in another room and, if the local authority’s approach were correct, no-one would ever succeed in showing a need for a bedroom for a carer.  Neither party has asked for an oral hearing.

12.	In my judgment, the Bolton case is totally irrelevant to the present appeal.  In that case, the claimant and his wife lived in a two-bedroom house.  He was severely disabled; she was less disabled.  Their daughter acted as his carer and stayed overnight three of four days a week.  The claimant and his wife slept in different bedrooms.  (That was as a result of his disability but I do not consider that that is material.)  Their daughter therefore slept on a portable bed in the lounge.  The local authority argued that head (b)(iii) of the definition of a “person who requires overnight care” was not met because the daughter was not provided with the use of a bedroom.  The Upper Tribunal rejected that argument.  In substance the decision amounts to authority that, for the purposes of head (b)(iii) of the definition, a carer is provided with the use of a bedroom if he or she is provided with the use of a room in which to sleep.  The context requires that approach to the definition in regulation 2.  The context requires a different approach to regulation B13(5).  In any event, Bolton is not authority for the proposition that any room in which a person could put a portable bed is a bedroom; it is at best authority for the proposition that a room that is actually used in that way may be a bedroom.  The case is irrelevant to the present case because the room used by carers here is clearly a bedroom and there is no dispute on that point.  It is one of the three obvious bedrooms in the house.  The claimant is not to be considered to have more bedrooms merely because portable beds could be erected elsewhere.  Nor does the possibility of converting another room into a bedroom make it unreasonable for the carers to be provided with the use of the existing bedroom.  As the claimant argues, such an approach would undermine the point of the legislation.

13.	The present case, as was recognised by the First-tier Tribunal, turns entirely on the meaning of the word “regularly” in head (b)(ii) of the definition of a “person who requires overnight care”.  That is a word that has many different meanings, or shades of meaning, in ordinary English usage.  The sense in which it is used in any instance has to be discerned from the “syntax, context and background” (per Lord Hoffman in Secretary of State for Work and Pensions v Moyna [2003] UKHL 44; [2003] 1 W.L.R. 1929 (also reported as R(DLA) 7/03) at [24]).  The First-tier Tribunal held that the word “denotes something which happens at intervals which, if not precisely fixed, are at least reasonably even” but the judge was unhappy with that construction because whether or not the need for overnight care was regular in that sense might not reflect the relative extent of the need.  In my judgment, that difficulty suggests that the word does not, in this instance, have the meaning ascribed to it by the First-tier Tribunal.  The word can also be used as a synonym for “habitually” or “customarily” or “commonly” and this seems a more sensible understanding of the word in the context of this legislative provision than that adopted by the First-tier Tribunal.  Whether the intervals between a person’s need for overnight care are uniform or not is, as the First-tier Tribunal pointed out, immaterial to his or her need for a bedroom in which to accommodate a carer.  

14.	What the legislation is concerned with is whether the need for care arises often and steadily enough to require a bedroom to be kept for the purpose.  A bedroom cannot be switched on and off and, if the object of the legislation is to encourage claimants to move to smaller accommodation or take lodgers into their spare rooms, it is to be presumed that whether overnight care is regular or not has to be considered over a fairly long period.  Moreover, there is nothing in the word “regularly” that requires that the carer must be required to stay overnight on the majority of nights for the claimant to meet the criterion.  That may be why that word was chosen.  It does not mean the same as “normally” or “ordinarily”.  A bedroom may be required even if the help is required only on a minority of nights.  Whether a carer must “regularly” stay overnight must be considered in that context.

15.	That question – whether or not the claimant reasonably requires, and has in fact arranged, that one or more people who do not occupy as their home the dwelling to which the claim or award for housing benefit relates should “regularly” stay overnight at the dwelling for the purpose of providing care – is a question of fact.  Provided that the First-tier Tribunal does not fall outside the bounds of reasonable judgment, the Upper Tribunal, to whom an appeal lies only on a point of law, should not entertain an appeal against the First-tier Tribunal’s decision on that question (see Moyna at [25]).  However, that is subject to the First-tier Tribunal having correctly understood the sense in which the word “regularly” is used.  Ascertaining the sense in which a word is used in a particular statutory provision is a matter of construction and therefore a question of law (R. v National Insurance Commissioner, ex parte Secretary of State for Social Services [1994] 1 W.L.R. 1290 (also reported as an appendix to R(A) 4/74)).

16.	In the present case, I am satisfied that the First-tier Tribunal did err in law because, despite the obvious care with which the decision was given, it did not correctly understand the meaning of the word “regularly” in the relevant context in the definition and so it did not apply the correct statutory test.  Accordingly, I allow the claimant’s appeal.

17.	It seems fairly clear that the First-tier Tribunal would have allowed the claimant’s appeal had it felt able to do so.  I see no reason not to adopt its findings as to the claimant’s need for care and the arrangements she has made.  Even if the claimant does not require that carers should stay overnight in her house quite as frequently as her more recent written evidence suggests, I am nonetheless satisfied that the nature of her condition is such that she does need to have them regularly staying overnight at her home for the purpose of providing her with care.

18.	In view of the local authority’s initial approach to this case, I will add that whether or not a claimant who is entitled to the care component of disability living allowance qualifies for that component on the basis of the “night” attendance conditions cannot be determinative of the question whether claimant is a “person who requires overnight care”.  That is not the effect of head (a) of the definition.  A person who is entitled only on the basis of the “day” conditions satisfies head (a), but it is necessary to convince a local authority that care is required at night in order to satisfy head (b).  However, there are several reasons why a person might satisfy head (b) without being entitled to the care component of disability living allowance on the basis of the “night” attendance conditions.  One is that the requisite degree of attention or supervision must be required “throughout” the period of an award of disability living allowance (see the opening words of section 72(1) of the 1992 Act) and not merely “regularly” during that period.  Another is the lengthy qualifying period before the basis of an award can be altered (see section 72(2)).  A third is simply the possibility of a claimant not having made an appropriate application for supersession of her award of disability living allowance.  The basis of an award of disability living allowance may therefore be relevant evidence but it cannot be conclusive.

Mark Rowland
9 July 2014