Wirral Metropolitan Borough Council v Salisbury Independent Living Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice Lewison,Lord Justice Maurice Kay |
| Judgment Date | 09 February 2012 |
| Neutral Citation | [2012] EWCA Civ 84 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2011/1470 |
| Date | 09 February 2012 |
[2012] EWCA Civ 84
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER
CH/3186/2009, JR/131/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
Lord Justice Hughes
and
Lord Justice Lewison
Case No: C3/2011/1470
Jenni Richards QC and Josephine Norris (instructed by Weightmans LLP) for the Appellant
Jan Luba QC and Desmond Rutledge (instructed by Lewis Silkin LLP) for the Respondent
Hearing date: Wednesday 25th January 2012
This appeal concerns a procedural aspect of housing benefit. The question is whether a landlord (or, perhaps, some landlords) can exercise an independent right of appeal to the First Tier Tribunal against a decision of the Local Authority, other than in the cases for which specific provision is made by the subordinate legislation.
The appellant local authority ("the council") administers housing benefit in its area. The respondent, Salisbury Independent Living Ltd ("SIL"), is a company limited by guarantee which is in the business in the voluntary sector of providing housing coupled with care, supervision and support to its tenants. It and the council take opposing views as to the proper basis for fixing the housing benefit payable to the tenants. The issues include matters such as:
i) whether the accommodation provided does or does not rank as 'exempt accommodation', which makes a considerable difference to the manner in which benefit is assessed;
ii) whether quite substantial service charges made by SIL are eligible housing costs;
iii) whether the determinations by the council of eligible rents are justified or ought to be substantially higher; and
iv) how much is due under the 'Transitional Housing Benefits Scheme'.
SIL is concerned to dispute these matters, of course, because the amount of housing benefit which its tenants receive has a direct impact on the rent which it can charge. That is no doubt often true, and for many landlords. But it is particularly so when the tenants are, many or perhaps all, without independent income and/or disadvantaged in various ways. That may well make it unlikely that the tenants will take a pro-active role in contesting the amount of housing benefit with the council, and more likely that they may adopt the stance that what is not paid by way of benefit they simply cannot pay. This dispute between the council and SIL is long-standing and has already involved at least two applications for judicial review and at least one appeal under the legislation then current, all proceedings brought by tenants but supported, funded, and perhaps in reality managed, by SIL. The sums in issue are not inconsiderable. SIL claims that in all there is something of the order of £3m owing to its tenants. The council claims that it owes nothing but rather that there is some £60,000 overpaid.
A series of appeals was lodged on or about 13 February 2009 against decisions of the council made on 1 October 2008. In form they appear to have been brought "on behalf of" some sixty odd tenants and in their names. The solicitors acting were SIL's solicitors. The council objected that at least some of the appeals did not appear to have been adopted by the tenants and it obtained from the judge of the First Tier Tribunal an order requiring that authorities signed by the tenants be lodged, failing which the relevant appeals would be struck out. Signed authorities were duly lodged in relation to all but ten of the apparently appealing tenants. In those ten cases there is no authority and no sign that the tenants adopt the appeals brought in their names. They appear either to have left or not to wish to take part or, in two cases, to have died.
SIL then sought to continue the appeals in relation to these ten tenants by applying to be added, or substituted, as appellant in its own right. The First Tier Tribunal judge refused that application, holding that there was no valid appeal to which SIL could be added as a party. On appeal to the Upper Tribunal against that decision, Upper Tribunal Judge Rowland held that:
i) SIL had a right of appeal of its own, as landlord, independent of the tenants' right; and
ii) it had already exercised it; and
iii) in consequence there was no need for SIL to bring a separate claim for judicial review, even if it could do so.
The council appeals the first of those findings with the permission of Judge Rowland. It seeks permission to appeal from this court in respect of the second finding. Neither party questions the third finding. On the first finding, the council's case is that a landlord only has a right of appeal in distinct cases provided for in the subordinate legislation and that SIL is not within those cases.
The legislation
Housing benefit is payable to qualifying occupiers, not to landlords, under the Social Security Contributions and Benefits Act 1992, and the Housing Benefit Regulations 2006 (2006 No 213) ("the HB Regulations"). A claimant must be liable to make payments to his landlord for accommodation occupied as his home. Eligibility is means tested. The administering authority, usually the Local Authority, has power to determine the amount payable, in accordance with complex rules. The rules are somewhat different for the occupiers of "exempt accommodation" which includes premises provided by a voluntary organisation which also provides care, support and supervision for the occupier.
Provision for reviews and appeals on housing benefit issues is made by the Child Support, Pensions and Social Security Act 2000 ("CSPSSA 2000"). Its provisions relevant to this case are found in Schedule 7 ("Schedule 7") Paragraph 6(3) provides the right of appeal which is here in question:
"6(3) In the case of a decision to which this paragraph applies, any person affected by the decision shall have a right of appeal to the First Tier Tribunal."
It follows that the critical question is whether SIL is a "person affected by the decision".
The same Schedule 7 contains in paragraph 23 both an interpretation provision and an enabling power, authorising the making of regulations:
"23(1) …….
"affected" shall be construed subject to any regulations under sub-paragraph (2)……
23(2) Regulations may make provision specifying the circumstances in which a person is or is not to be treated for the purposes of this Schedule as a person who is affected by any decision of the relevant authority."
In the exercise of that latter power, the Housing Benefit and Council Tax (Decisions and Appeals) Regulations 2001 ( SI 2001/1002) ("D&A") have been made. Regulation 1 provides:
" 'person affected' shall be construed in accordance with regulation 3."
Then regulation 3 provides:
"3(1) For the purposes of Schedule 7 to the Act and subject to paragraph (2) a person is to be treated as a person affected by a relevant decision of a relevant authority where that person is:
a) a claimant
b) in the cases of a person who is liable to make payments in respect of a dwelling and is unable for the time being to act—
i) a deputy appointed by the Court of Protection with power to claim, or as the case may be, receive benefit on his behalf,
ii) in Scotland, a tutor, curator, judicial factor or other guardian acting or appointed in terms of law administering that person's estate, or
iii) an attorney with a general power or a power to receive benefit appointed by the person liable to make those payments under the Powers of Attorney Act 1971, the Enduring Powers of Attorney Act 1985 or the Mental Capacity Act 2005 or otherwise;
c) a person appointed by the relevant authority under regulation 82(3) of the Housing Benefit Regulations [and similar provisions enabling the appointment of others for persons unable to act]
d) a person from whom the relevant authority determines that—
i) an overpayment is recoverable in accordance with Part 13 of the Housing Benefit Regulations or Part 12 of the Housing Benefit ( State Pension Credit) Regulations; or
ii)……
e) A landlord or agent acting on behalf of that landlord and that decision is made under—
i) regulation 95…of the Housing Benefit Regulations;
ii) regulation 96…of those regulations;
iii) regulation 76…of the Housing Benefit (State Pensions Credit) Regulations;
iv) regulation 77…of those Regulations.
(2) Paragraph (1) only applies in relation to a person referred to in paragraph (1) where the rights, duties and obligations of that person are affected by a relevant decision."
The relevant subparagraph is thus 3(1)(e) as qualified by 3(2).
The four regulations specifically mentioned in subparagraph 3(1)(e) are provisions under which the housing benefit payable to a claimant either must (Regulations 95 and 76) or may (Regulations 96 and 77) be paid directly to the landlord. In the briefest of terms, benefit must be paid directly to the landlord when either there is already payment of a deduction from income support or state pension credit (as the case might be) directly to the landlord, or the claimant is eight weeks in arrears with his rent. Benefit may be paid directly to the landlord if the claimant asks for that to be done, or if the Local Authority judges it to be in his interests, or if the claimant has moved leaving rent owing. Where a decision is taken either to apply or not to apply any of these four regulations, the landlord is thus given an independent right of appeal against that decision, although not against any other housing benefit decision concerning the same tenant (and thus not, for example,...
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