Court of Appeal judgment: Mahmoudi, R (On the Application Of) v London Borough of Lewisham & Anor [2014] EWCA Civ 284
6 February 2014
http://www.bailii.org/ew/cases/EWCA/Civ/2014/284.html
Meaning of “adapt the dwelling” for the needs of a disabled person
This case concerns the circumstances in which a disabled person may be entitled to housing benefit in relation to a short period of time before moving into a new tenancy.
The relevant legislation is Regulation 7(8) of the Housing Benefit Regulations 2006 that provides:
“Where -
(a) a person has moved into a dwelling and was liable to make payments in respect of that dwelling before moving in;
(...)
(c) 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 delay was necessary in order to adapt the dwelling to meet the disabled needs of that person or any member of his family (...)
the person shall be treated as occupying the dwelling as his home for any period not exceeding 4 weeks immediately prior to the date on which he moved into the dwelling and in respect of which he was liable to make payments.”
The claimant required kidney dialysis three times a week. He had been living in damp accommodation that made it impossible for him to receive home dialysis. While he was offered new accommodation on 21 October 2009 with the condition he accept it straight away.
However, he did not move into his new home until 8 November 2009. There were three reasons for the delay:
- his dialysis schedule meant the only day on which it was possible for him to move was Sunday, the day on which he felt strongest.
- he needed to arrange the removal of his furniture and belongings; and
- the new flat needed to be redecorated as it had been left in a dirty condition by the previous tenant (as otherwise the claimant could not receive home dialysis there).
Despite this, his claim for housing benefit in relation to the new property was refused and his subsequent appeals were dismissed by the First Tier Tribunal and by the Upper Tribunal in [2013] UKUT 026 (AAC).
This was on the grounds that, in accordance with R(H)4/07, redecoration did not amount to adapting the dwelling to meet disablement needs.
However, in finding for the claimant the Court of Appeal rejects the Secretary of State’s submission that ordinary meaning of the words "adapt the dwelling" cannot encompass redecoration:
“The Oxford English Dictionary considers "adapt" to be synonymous with, among other things: "fit, adjust, make suitable (to or for)". Such a meaning would suffice for [the] purpose here.”
In then outlining the purpose of Regulation 7(6), the Court holds that:
“Its concern is not simply with the problem of concurrent claims in respect of two dwellings, it is with the provision of a benefit specifically for the disabled. Its hypothesis is that something may have to be done in the dwelling "to meet the disablement needs" of the claimant or any member of his family.
In the short period when he is being kept out of the property after his liability to make payments for it has commenced, he is entitled to housing benefit, whether or not he is also receiving it in relation to the property where he is currently residing. He may not be receiving housing benefit in relation to that property, because, for example, he is accommodated gratuitously by relatives or in an institution. He would still qualify under Regulation 7(8)(c).
Moreover, I do not consider that Regulation 7(8)(c) can have been intended to exclude a disabled person who is kept out for two weeks while the dwelling is being decorated "to meet his disablement needs" but to include one who is kept out for the same period of time while the bathroom and kitchen are being refitted "to meet his disablement needs". Such a differentiation would lack a rational basis.”
The DWP has issued housing benefit guidance in relation to the Court of Appeal’s judgment.
HB Circular A4/2014 advises that:
“The Court’s decision overturned previous rulings, which had restricted the meaning of “adapt” to cases where alterations were being made to the fabric or structure of the dwelling e.g. to install a stair-lift or handrails. It decided that, depending on the circumstances, the term could also include works such as redecoration or carpeting which had in the past been judged by the Upper Tribunal to fall outside the scope of adaptations to the dwelling.
The Court of Appeal’s decision means that local authorities (LAs) should no longer use the narrower interpretation, and must instead look on a case-by-case basis at the disablement needs of the claimant or any relevant family member who lives with them and how they relate to the works carried out. If the LA is satisfied that, due to the disablement needs of the claimant (or any relevant family member who lives with them) the completion of the works is reasonably required before they can move in (and the other requirements in Regulation 7(8) are also satisfied) benefit can be paid for up to 4 weeks before the move-in date.”