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Please note: this decision has been reproduced in plain text only. If you wish to submit a copy of a decision as part of an appeal, please download a Word copy from the link below [ref.xd1]:
Commissioner's Case No: CDLA/2127/2000
THE SOCIAL SECURITY COMMISSIONERS
SOCIAL SECURITY CONTRIBUTIONS AND BENEFITS ACT 1992
SOCIAL SECURITY ACT 1998
APPEAL FROM A DECISION OF AN APPEAL TRIBUNAL
ON A QUESTION OF LAW
DECISION OF THE SOCIAL SECURITY COMMISSIONER
COMMISSIONER: MR J MESHER
DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. The claimant's appeal is allowed. The decision of the Wakefield appeal tribunal dated 26 January 2000 is erroneous in point of law, for the reasons given below, and I set it aside. It is expedient for me to give the decision on the claimant's appeal against the adjudication officer's decision issued on 4 January 1996, having made the necessary findings of fact (Social Security Act 1998, section 14(8)(a)(ii)). My decision is that the care component of disability living allowance is not payable to the claimant by virtue of regulation 9(1) of the Social Security (Disability Living Allowance) Regulations 1991 for the period from 7 September 1994 to 19 January 1995, and is payable for the period from 20 January 1995 to 7 October 1996 (the day immediately before that on which the benefit was made payable under another decision). The mobility component has been payable throughout.
A. The background
2. This case stems from the renewal claim for disability living allowance (DLA) with effect from 7 September 1994 which was received on 17 June 1994. I do not know when the previous award expiring on 6 September 1994 was made, but there is no dispute that the claimant suffered a severely disabling stroke in February 1993 and that he had been in hospital since. He was ultimately (after an earlier attempt) discharged from hospital on 20 July 1994 to Red Laithes Court, a home owned and managed by Kirklees Metropolitan Council. I shall return to the details of the circumstances below. On 9 September 1994 an adjudication officer decided that the claimant was entitled to the higher rate of the mobility component of DLA and the highest rate of the care component from and including 7 September 1994 for life. However, it was recorded that the officer could not yet determine the question of payability.
3. The question of the payability of the care component depended on regulation 9(1) of the Social Security (Disability Living Allowance) Regulations 1991 (the DLA Regulations):
"(1) Except in the cases specified in paragraphs (1A) to (4), and subject to regulations 9A and 10, a person shall not be paid any amount in respect of a disability living allowance which is attributable to entitlement to the care component for any period where throughout that period he is a person for whom accommodation is provided--
(a) in pursuance--
(i) of Part III of the National Assistance Act 1948; or
(ii) of Part IV of the Social Work (Scotland) Act 1968 or section 7 of the Mental Health (Scotland) Act 1984;
(b) in circumstances where the cost of the accommodation is borne wholly or partly out of public or local funds in pursuance of those enactments or of any other enactment relating to persons under disability or to young persons or to education or training; or
(c) in circumstances where the cost of the accommodation may be borne wholly or partly out of public or local funds in pursuance of those enactments or of any other enactment relating to persons under disability or to young persons or to education or training."
I do not need to look at any of paragraphs (1A) to (4) or at regulations 9A and 10. The provisions on the payability of the mobility component are different, and it appears that there has not been any practical problem in the payment of mobility component for the claimant throughout.
4. A form DLA 26 was sent to Red Laithes Court asking for information. This is a form which is appropriate for a nursing home or residential care home. The reply dated 10 October 1994 included the information that the home was owned or managed by the local authority. In answer to question 5 about whether the home was registered under the Registered Homes Act 1984 as a residential care home or nursing home, in addition to a tick in the No box, was written "NHS & CC ACT 1990". A form DLA 46 (appropriate for local authority accommodation) was then sent to the Finance Department of the Personal Services Department of the local authority. This form was signed on 11 November 1994 and was apparently completed by the same person as completed the form DLA 26. The answers included that the local authority owned, managed and provided the staff for Red Laithes Court and had been involved in placing the claimant in the accommodation. Question 5 asked whether the authority had ever paid any money towards the cost of the claimant's stay, and no was ticked. Question 8 asked under which enactment provision had been made. Part III of the National Assistance Act 1948 was ticked. It was not known if the claimant was getting housing benefit.
5. No formal decision on payability of the care component appears to have been made until 15 September 1995. Mr Peter Woods of the local authority's Benefits Advice Service, who was representing the claimant and his appointee, had informed the DLA Unit that as from 10 October 1994 the claimant was spending from 10 am to 9 pm at the family's new home and was pressing for payment of at least the middle rate of care component. A letter in March 1995 (page 70) on behalf of the Manager of the DLA Unit said that they were unable to pay the claimant while he was still spending the night in the home. Mr Woods tried to appeal and letters went astray. Presumably because there had been no decision by an adjudication officer, an adjudication officer on (it appears) 15 September 1995 purported to review the decision of 9 September 1994 on the ground of relevant change of circumstances, but gave the revised decision that care component was not payable from and including 27 June 1994 because the claimant's accommodation was provided from local or public funds (page 65).
6. In my judgment, this decision is to be treated as the first decision on the question of payability. But, because the question arose from the separate decision on entitlement from 7 September 1994, payability could only properly be considered from the same date. Although this and subsequent decisions (including that of the appeal tribunal of 26 July 2000) purported to deal with payability from 27 June 1994 or 20 July 1994, only the period from 9 September 1994 was in issue. There must have been a separate decision on payability of the award from 7 September 1993. I deal below with the factual situation from 20 June 1994, but restrict my decision to the period from 7 September 1994.
B. The appeal against the decisions on payability
7. Mr Woods wrote a letter of appeal received on 18 October 1995. This was treated as an application for second-tier review. In a decision issued on 4 January 1996 an adjudication officer made no change in the decision. Mr Woods appealed against that decision. A social security appeal tribunal (SSAT) on 22 May 1996 disallowed the appeal. On further appeal, Miss Commissioner Fellner set the SSAT's decision aside as erroneous in point of law in decision CDLA/15149/1996, signed on 22 July 1999.
8. I do not, in the light of my later findings of fact, have to go into all the details of that decision. The main error of law identified was that, in view of the vague and contradictory evidence, the SSAT should have adjourned for further evidence as to whether the claimant's accommodation was provided in pursuance of Part III of the National Assistance Act 1948. The Commissioner gave some directions of law on the assumption that Red Laithes Court was a Part III home. She suggested that there was not much mileage in an argument based on the decision of Moses J in R v Newham LBC, Medical Foundation for the Victims of Torture (1998) 1 CCLR 227, that the claimant was not provided with residential accommodation because his permanent residence was with his family. She rejected Mr Woods' argument that, once the claimant began to spend the days at home, the period from 10 am to 9 pm was not one throughout which residential accommodation was provided. The direction was that for the shortest period to be considered - a calendar (midnight to midnight) day - accommodation was provided to the claimant for times at which it was available for him to use, even though he chose not to avail himself of it.
9. The rehearing took place before an appeal tribunal on 26 January 2000. By that time a great deal of documentary evidence had been produced. That produced by Mr Woods, with his written submission to the appeal tribunal, runs from page 186 to page 428 in the papers now before me. The Secretary of State's written submission to the appeal tribunal, with supporting documents, runs from page 429 to page 470.
10. Part of Mr Woods' bundle was a helpful letter dated 1 September 1999 from a clerical officer at Red Laithes Court, which included the following:
"[The claimant] was admitted to the respite unit on 20.07.94 and was transferred to the transitional unit on 20.01.95. The reasons for the move are as follows-
1. [The claimant had been occupying a much needed respite bed for several months while adaptations were ongoing at his home address ... .
2. [The claimant] spent most of each day at his home address. Staff at RLC got him up and dressed each morning and helped him to bed each night. Any food which was eaten at RLC was provided by his family.
3. The purpose of moving to the transitional unit was for [the claimant] to get used to an `independent' lifestyle within the community."
There was also confirmation that the claimant left Red Laithes Court on 8 October 1996 to live with his family at home. Very much in brief, Mr Woods' argument in his written submission was that, accepting reluctantly that the respite unit was Part III accommodation, it had not been shown, in the absence of evidence of relevant community care assessments, that the accommodation was provided to the claimant under Part III of the National Assistance Act 1948. If that submission failed, Mr Woods argued that from 10 October 1994 to 20 January 1995 payability of the middle rate of the care component was not excluded as the claimant was not provided with accommodation for day-times and that as he lived at home he was not being provided with residential accommodation at all. If those submissions failed, Mr Woods submitted in relation to the period from 20 January 1995 onwards that the transitional unit was not Part III accommodation at all.
11. The Secretary of State relied in particular on a letter dated 9 November 1999 from Mr Sykes, a senior finance officer of the local authority, which included the following:
"Red Laithes Court was and still is owned, managed and staffed by Kirklees Metropolitan Council who also in effect fund the net cost of this accommodation. The net cost is the total cost of owning and running the home less the rent and other contributions received from residents.
Respite care is charged for on the basis of a rate established for each nights stay. This is solely to simplify the arrangements and should a short stay resident choose to go home during the day, no reduction is normally made despite the cost savings that arise. However, should someone only stay during the daytime, but not overnight, then a day care charge would be made.
On his discharge from hospital [the claimant] was transferred to Red Laithes Court and later on it was arranged for him to spend most of the days with his family in order to assist his rehabilitation and to re-accustom him to the daily living regime at home. This is not an unusual arrangement as Red Laithes Court provides a flexible and responsive service on an individual basis.
[The claimant] had to spend his nights at Red Laithes Court as he was waiting for extensive adaptations to be made to his home and until these were completed his family was unable to lift, wash and put him to bed.
[The claimant] did on occasion stay during the day at Red Laithes Court, when his room would then be made available to him. Day time availability at other times would depend on what demands there were from other service users for the available rooms.
The reason why he did not spend his nights at home as well as the days is explained above.
It should be noted that [the claimant] transferred over to the `transitional' side on 20 January 1995. The funding here partly comprises housing benefit supported rents together with other assessed contributions from the tenants occupying the transitional accommodation.
Whilst I am not sure of its relevance, the reference to the 1990 Community Care Act was not I think a mistake `per se', but it is accepted that at the time the form was filled in, the exact legal status of both the respite and the transitional sides at Wed Laithes Court had not been fully clarified. However, it was correct to tick the `no' box in question 5 on the form dated 24 August 1994.
The reason the records officer ticked the `no' box in question 5 of the form dated 27 October 1994 was, I feel, due to a misunderstanding of the question and, in particular the phrase `paid any money towards the cost"."
In a record of a telephone call on 12 November 1999 Mr Sykes was said to have confirmed that Red Laithes Court was owned, managed and staffed by the Social Services Department of Kirklees Metropolitan Council. The written submission was that that showed that accommodation in the respite unit had been provided under Part III of the National Assistance Act 1948, as charging arrangements under section 22 were in place. Further it was not contested that Red Laithes Court was originally set up for the purposes of Part III, so that for the purpose to have changed there should have been a formal appropriation to the new purpose. It was submitted that Mr Sykes' letter showed that that had not happened, so that the claimant's accommodation could only have been provided under Part III.
C. The decision of the appeal tribunal of 26 January 2000
12. The appeal tribunal disallowed the appeal and decided that the claimant was provided with residential accommodation under Part III of the National Assistance Act 1948 at Red Laithes Court from 20 July 1994 to 8 October 1996. It took the view that Mr Woods had conceded that what it called the main core accommodation and the transitional accommodation at night was Part III accommodation. It found that both units were provided by the local authority under the provisions of section 21(1)(a) and funded under section 22 of the National Assistance Act 1948. Citing Mr Sykes' statement of the ownership and meeting of the net cost of running Red Laithes Court, the appeal tribunal said that this confirmed its understanding of the arrangements which fell within Part III. The appeal tribunal went on to decide that the accommodation was provided throughout the days when the claimant went home from 10 am to 9 pm and that the claimant was living at Red Laithes Court until 8 October 1996.
D. The appeal to the Commissioner
13. The claimant now appeals against that decision with the leave of Mr Commissioner Bano. The appeal was supported in brief written submissions on behalf of the Secretary of State, on the basis I think that the appeal tribunal had not adequately explored whether residential accommodation was otherwise available to the claimant and whether accommodation in the transitional unit was provided under Part III of the National Assistance Act 1948. However, in view of the difficulty of the issues raised, the Commissioner directed an oral hearing of the appeal.
14. The hearing took place at Doncaster Crown Court on 20 April 2001. The claimant and his appointee were represented by Mr Woods. The Secretary of State for Social Secretary (as then still was) was represented by Miss Deborah Haywood of the Office of the Solicitor to the Department of Social Security and by Mr Steven Shaw of the Adjudication and Constitutional Issues Branch. I am grateful to all present for their assistance, although I am afraid that their submissions did not make the case any easier to decide. I issued a direction at the end of June 2001 for further evidence in the hope that I could substitute a decision on the facts. Further evidence and submissions were put in from both sides, and completed at the end of October 2001. It is plain that the lapse of time since the oral hearing is far too long. That is my responsibility and I apologise, in particular to the claimant and his appointee, for the delay. However, I have now reached what I hope can be a final decision in this case.
E. Did the appeal tribunal err in law?
15. The first question is whether the appeal tribunal of 26 January 2000 erred in law. At the oral hearing, Miss Haywood took the view that there was sufficient evidence before the appeal tribunal of the provision of residential accommodation under Part III of the National Assistance Act 1948 throughout the period in issue and that there was sufficient explanation of the appeal tribunal's reasons for reaching that conclusion. In particular, she resiled from the previous acceptance on behalf of the Secretary of State of Mr Woods' submission that the appeal tribunal had failed to explain why a different result had been reached from that in the case of another claimant living in the transitional unit of Red Laithes Court. The appeal in the other claimant's case had been decided a few months before by an appeal tribunal with the same chairman as the appeal tribunal of 26 January 2000. It was submitted that there had been no error of law in the decision that the accommodation was residential accommodation and that regulation 9(1)(a) of the DLA regulations applied during periods in which the claimant was spending the day-time away from Red Laithes Court.
16. I conclude that the appeal tribunal of 26 January 2000 did err in law. I do not have to decide whether or not there was some misunderstanding over what Mr Woods was conceding, as opposed to putting arguments that would be needed only if some other arguments went against the claimant. I note, however, that it would have been surprising if Mr Woods had indicated that he was no longer relying on a substantial part of his carefully constructed written submission. Even if Mr Woods had done that, I consider that in the circumstances the appeal tribunal needed to deal specifically with the nature and the consequences of the claimant's transfer from the respite unit (the main core accommodation) to the transitional unit. Mr Sykes' letter, and other documents, showed that the financial arrangements were regarded as being significantly different for the transitional unit. The other appeal to which Mr Woods had referred was about the transitional unit. On an issue as difficult as this, further explanation was needed. The appeal tribunal may have considered that, if the residential accommodation continued to be provided by the Social Services Department of the local authority, the only statutory power under which that could be done was in Part III of the National Assistance Act 1948. If so, the appeal tribunal did not say so expressly. And if that was its view, it was wrong in law, for the reasons which will emerge below.
17. For those reasons the appeal tribunal's decision of 26 January 2000 must be set aside as erroneous in point of law. As noted above, I decided that, in view of the difficulty of giving directions of law to another tribunal on a variety of possible combinations of conclusions of fact, I should make the relevant findings of fact after receiving more evidence and give the decision on the appeal against the adjudication officer's decision of 4 January 1996.
F. The Commissioner's decision on the appeal
(i) General approach
18. There are four general issues which I should mention before I deal with the evidence. The first is that, as there is no dispute as to the claimant's entitlement to the care component of DLA throughout the period in issue, the burden of showing that the benefit is not payable by virtue of regulation 9(1) of the DLA Regulations lies on the Secretary of State (see paragraph 27 of the appendix to CDLA/2812/1998 and associated cases). The second issue is that, throughout the long history of this case, the only ground of non-payability put forward by the adjudication officer and now the Secretary of State has been under regulation 9(1)(a), on the basis that the claimant's accommodation was provided under Part III of the National Assistance Act 1948. There has been no suggestion that either sub-paragraph (b) or (c) applied in the circumstances of this case, despite ample opportunity to do so. Therefore, I have regarded the effect of those sub-paragraphs as not having been raised in the appeal which I now decide.
19. The third issue is over the jurisdiction of appeal tribunals and Commissioners to investigate whether a local authority had erred in law in some way in purporting to act under Part III of the National Assistance Act 1948. The point was mentioned by Mr Woods at the oral hearing, when he said (I think in relation to other cases) that he had been advised that the proper remedy was judicial review of the local authority's action, but had been refused legal aid to pursue that remedy. Miss Haywood submitted that there was a real point of law involved, although the issue of jurisdiction had not been raised in any of the written submissions.
20. On this issue I tend to agree with the submission made by counsel for the Secretary of State in CDLA/2812/1998 and associated cases (see paragraphs 15, 34 and 35 of the appendix). There might possibly be a problem if there was plain evidence from a local authority officer who was in a position of sufficient seniority and expertise to bind the authority that action had been taken under Part III. It might then be arguable that, for the purposes of regulation 9(1) of the DLA Regulations, accommodation was provided "in pursuance of" Part III regardless of the fact that the action was ultra vires or that there had been some failure to comply with the requirements of Part III. I would prefer to put the argument in those terms rather than in terms of jurisdiction, as it must be for the social security adjudicating authorities to decide on the requirements of the social security legislation. The House of Lords in Chief Adjudication Officer v Quinn  1 WLR 1184, R(IS) 13/96, and Chief Adjudication Officer v Steane  1 WLR 1195, R(A) 3/96, had no compunction in deciding whether arrangements with voluntary organisations were or were not made in accordance with Part III. However, there is a prior stage where it is necessary to establish what the local authority has in fact done and, if alternative powers were available, whether it has been shown that the local authority did act "in pursuance of Part III". It is that stage which is relevant in the present case, and is plainly to be decided by the social security adjudicating authorities.
21. The fourth issue concerns the nature of the question to be asked. This has sometimes been put as whether the whole or part of Red Laithes Court is "Part III accommodation". In my judgment, as I pointed out at the oral hearing and in the direction dated 29 June 2001, that is the wrong question. What has to be asked under regulation 9(1) of the DLA Regulations is whether residential accommodation has been provided for the particular person concerned in pursuance of arrangements made under Part III. It has been made clear in a number of cases in the High Court (including the Newham case (cited in paragraph 8 above), which was in the papers before the appeal tribunal of 26 January 2000) that accommodation in "ordinary" premises can be provided under Part III. The accommodation need not be institutional. By the same token, it seems to me that a home which is mainly used where arrangements have been made under Part III, or which was built for that purpose, could be used to accommodate a person to whom the local authority had no duty under Part III. For instance, the person might have care and attention available elsewhere, but choose to be accommodated in the local authority home. It all depends on the arrangements made for the person in question. However, perceptions of the nature of a particular home may influence what statutory powers are in fact used.
22. The approach above is confirmed by the form of Part III in force from April 1993 and by the existence of section 47(1) of the National Health Service and Community Care Act 1990, which makes it an essential gateway to the provision of community care services (which include services provided under Part III) that there has been an assessment of the individual's needs and whether they call for the provision of any such service. It can also be noted that section 47(3) requires the local authority to invite a local housing authority to assist, if it considers that there may be a need for provision to the person concerned of services falling within the functions of a local housing authority, and take account in the community care assessment of the housing services which are likely to be made available.
23. It is convenient to set out here the main relevant parts of Part III of the National Assistance Act 1948, as in force at the dates in issue:
"Duty of local authorities to provide accommodation
21.-(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing--
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them; and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.
(8) Nothing in this section shall authorise or require a local authority to make any provision authorised or required to be made (whether by that or by any other authority) by or under any enactment not contained in this Part of this Act or authorised or required to be provided under the National Health Service Act 1977.
Charges to be made for accommodation
22.-(1) Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section.
(2) Subject to the following provisions of this section, the payment which a person is liable to make for any such accommodation shall be in accordance with a standard rate fixed for that accommodation by the authority managing the premises in which it is provided and that standard rate shall represent the full cost to the authority of providing that accommodation.
(3) Where a person for whom accommodation in premises managed by any local authority is provided, or proposed to be provided, under this Part of this Act satisfies the local authority that he is unable to pay therefor at the standard rate, the authority shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to pay for the accommodation.
(4) In assessing for the purposes of the last foregoing subsection a person's ability to pay, a local authority shall assume that he will need for his personal requirements such sum per week as may be prescribed by the Minister, or such other sum as in special circumstances the authority may consider appropriate.
(5) In assessing as aforesaid a person's ability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this subsection.
(5A) If they think fit, an authority managing premises in which accommodation is provided for a person shall have power on each occasion when they provide accommodation for him, irrespective of his means, to limit to such amount as appears to them reasonable for him to pay the payments required from him for his accommodation during a period commencing when they begin to provide the accommodation and ending not more than eight weeks after that."
Thus, there must be an individual assessment of the individual's needs for care and attention and a two-stage process in identifying the standard charge for the accommodation and assessing the individual's ability to pay. The Secretary of State has directed local authorities to make arrangements under section 21(1)(a) for persons ordinarily resident in their area.
24. There is a special charging rule for "less dependent residents" in regulation 5 of the National Assistance (Assessment of Resources) Regulations 1992:
"5. In assessing a less dependent resident's ability to pay for his accommodation, a local authority need not apply Parts II to V of these Regulations (treatment of income, treatment of capital, liable relatives and student) if they consider it reasonable in the circumstances not to do so."
A "less dependent relative" is defined in regulation 2(1) as a resident:
"(a) in premises which are neither owned nor managed by a local authority and which are not registered (as respects England and Wales) under the Registered Homes Act 1984 or (as respects Scotland) under Part IV of the Social Work (Scotland) Act 1968; or
(b) in premises which are either owned or managed or owned and managed by a local authority but at which residents are not provided with board,
and in this context `board' means at least some cooked or prepared meals which are both cooked or prepared, by a person other than the resident or a member of his family, and consumed at those premises or in associated premises, if the cost of those meals is accounted for as part of the standard rate for the accommodation at those premises."
In the present case, as all the evidence is that residents at Red Laithes Court were required to provide their own food, or at least that the cost of food was not included in the standard charge, the residents would have fallen within the category of "less dependent resident", regardless of their level of physical dependency.
(ii) Evidence and findings of fact
25. The history of Red Laithes Court is shown in the copy of a letter dated 6 April 1987 from the local authority to the Department of Health and Social Security:
"The above establishment, which opened in 1986, was originally planned to be a normal home for the physically handicapped and funding was grant under Part III of the National Assistance Act 1948. However, at the detailed planning stage it was decided that the home, as eventually built, would in fact be designed and built to operate in line with sheltered housing schemes, in that each occupier would have their own bedsit accommodation, catering facilities and access to the building. The shared accommodation being specially designed bathrooms, a large lounge and cafeteria, which is available for the use of staff, visitors and tenants."
From the service plan for April 1995 to April 1996, apparently produced in late 1994 or early 1995, it appears that the establishment was made up of 22 rooms arranged in four units. Each unit had bathroom and toilet facilities and a communal kitchen. The large commercial-style kitchen was used only on special occasions. Support staff were available on call. It seems that in the respite unit, for short temporary periods of residence, meals were provided to residents at a subsidised price. It also seems that laundry and ironing was done for residents and toiletries etc supplied. In the transitional units residents were entirely responsible for the purchase, storage and preparation of their own meals. Staff might assist on request, but the financial responsibility was the resident's, as was the carrying out of laundry and provision of all personal items. I adopt that evidence as findings of fact.
26. I look now at the claimant's initial admission to Red Laithes Court. There is no doubt that following his stroke in February 1993 and despite a long period of in-patient care, the claimant remained dependent on others for most of his physical needs. He was unable to speak and needed total care with washing, dressing, toiletting, transferring to and from a wheelchair and being got in and out of bed. The family's previous home could not be adapted to enable him to live there in addition to his wife and their seven children. A tenancy of a housing association property was arranged, which would require extensive adaptations before the claimant could be looked after full-time there. For instance, there were to be extensive alterations to the bathroom to make it wheelchair-accessible and the installation of a ceiling tracking hoist, to enable the claimant to be got in and out of bed from his wheelchair or for other transfers to be done. The tenancy had been arranged by the time that the claimant moved into the respite unit from hospital, but there was a long delay in getting the adaptations made.
27. The claimant was first admitted to Red Laithes Court on 27 June 1994, but discharged back to hospital on 30 June 1994. He was admitted again on 20 July 1994. Mr Woods has been able to obtain and produce a number of Kirklees Social Services documents, including assessments of the claimant's and his family's needs, but these are by no means complete. There are some home care assessments from May 1993, to do with the claimant's wife's needs for support while he was in hospital, and occupational therapy reports about the claimant's condition and the adaptations that would be needed in the new home. The first significant document relating to the claimant himself is the minutes of a case review held at Red Laithes Court on 27 July 1994. The nine people present seem to have included staff from Red Laithes Court, a hospital social worker and staff from Kirklees Social Services. This was described as a review of the claimant's stay since his admission. There are thus no documents recording the initial decision for the claimant's move to Red Laithes Court from hospital or the nature of the arrangements made. However, it is evident from the minutes that there had earlier discussions and decisions made about the claimant's needs. There was a further case review of 31 August 1994. Amongst its conclusions were that Red Laithes Court was an appropriate placement for the claimant, that the current meeting marked the end of the case discussions and that the next meeting would be a case review. The next meeting recorded is on 14 December 1995, which seems to have involved Red Laithes Court staff, the claimant's wife and a benefits adviser.
28. There is nothing which is labelled an assessment under section 47 of the National Health Service and Community Care Act 1990. However, I infer from the documents available that there was an assessment by the local authority of the claimant's need for community care services, which began before the initial decision was made to admit the claimant to Red Laithes Court and continued at least until 31 August 1994. Either there was a temporary provision of community care services under section 47(5) followed by an assessment under section 47(1) or there was a prior assessment, followed by a continuing assessment. However, especially in the light of the duty to liaise with housing authorities (and Kirklees Metropolitan Council is also a housing authority), that does not in itself show that the community care services provided to the claimant from 20 July 1994 included residential accommodation under Part III of the National Assistance Act 1948.
29. It is necessary also to look at the evidence of the calculation of the charges for the accommodation at the outset. Here the evidence comes from documents obtained from Kirklees Social Services by the Secretary of State. The documents are very hard to interpret. A sheet headed "admissions and discharges" records a weekly assessment of £44.50 from 27 June 1994 (page 580). A form listing pensions, capital and outgoings (page 581) looks as though it was attached to or the reverse of the admissions and discharges sheet. But it is blank except for £44.50 entered against the total at the bottom. Six invoices were sent, presumably by Kirklees Social Services, to the claimant's wife covering the period from 27 June 194 to 2 April 1995, which seem to reflect a daily rate equivalent to £44.50 per week. No payment was ever made. There were some discussions about the arrears in 1994. The outstanding amount was written off on compassionate grounds in June 2000. There is no information about why no invoices were issued for periods after 2 April 1995.
30. There is thus no evidence of the two-stage process under section 22(2) and (3) of the National Assistance Act 1948. I think that Mr Woods is right that the amount of £44.50 was the result of deducting from the current amount of the basic state retirement pension the amount of the prescribed personal expenses allowance. This is commonly called the "Part III" rate and used by local authorities as the charge under section 22(5A). But that rate should only be used for eight weeks and, although the resident's means can be disregarded, I think that the local authority should still consider the resident's ability to pay the charge, taking account of any adjustment for a less dependent resident. I conclude that there was a decision to apply such a charge from the outset of the claimant's residence at Red Laithes Court. There is slight confirmation of that in an undated financial assessment form (page 582). This contains a few entries for the family's income from income support and invalidity benefit. Written at the top is "Minimum charge S/Stay as [illegible]".
31. Neither Mr Sykes in his letter of 9 November 1999 nor Mr Platt, general manager of Community Care Services, in his letter of 18 September 2001, says expressly that the respite unit of Red Laithes Court was regarded as Part III accommodation and that the transitional unit was not. But what they say is consistent with that, for instance in what was said about the normal procedure being for someone to claim housing benefit on a move to the transitional unit. No claim for housing benefit was made in respect of the claimant's occupation of a room in the transitional unit. Mr Platt's letter included the following:
"I can confirm that Red Laithes Court was solely managed and staffed by Social Services personnel. There were two distinct budgets and staff teams for the respite unit within the building and the larger `transitional' unit.
There were no Housing Powers delegated to Social Services in respect of Red Laithes Court. Social Services often work in close partnership with Housing as people often came into Red Laithes Court while their own properties were being adapted."
32. I analyse the legal situation as at 20 July 1994 in paragraphs 38 and 39 below. I need now to make some findings of fact about the remainder of the period down to 8 October 1996.
33. There is no dispute that until 10 October 1994 the claimant was at Red Laithes Court 24 hours a day. His wife and family visited him regularly and brought in food and drink for him and assisted in feeding him. From that date onwards he began to spend some of the day-time with his family at the new home. The appeal tribunal of 26 January 2000 accepted that he spent from 10 am to 9 pm most days at home. I am not sure that the hours were that extensive throughout. The transfer summary written by the hospital social worker on 20 October 1994 referred to future plans including introducing the claimant to the new family home gradually, perhaps spending several hours there on a routine basis. The minutes of the review meeting on 12 December 1995 recorded an agreement that he would be collected at 12 and return before 8 pm. The minutes of the review meeting on 28 August 1996 record concern that the claimant was being collected at inconsistent times. However, the exact times do not matter, and I am prepared to accept that for substantial periods of the day he was at home, and that this began from 10 October 1994.
34. He would have had most meals at home. He might have had breakfast at Red Laithes Court, but I am prepared to assume that the food was provided by the family. The claimant's wife was anxious for the claimant to be at home full-time, and the claimant seems to have been happier at home. The obstacle to that was that the necessary adaptations had not been done. In particular, until a hoist was installed, the family, even with assistants coming in, would not have been able to transfer the claimant into and out of bed. I also think that until the bathroom was adapted, there would have been a problem in maintaining the claimant's personal hygiene. I do not know when all the adaptations were done. On 10 February 1997 it was stated that work on the bathroom and hoist would start on the following day. When the claimant was able to move home on 8 October 1996 that was because a mobile hoist had been loaned to the family before the ceiling hoist was installed, and carers came in in the morning and evening to assist in getting up and going to bed.
35. There has, in the proceedings before Miss Commissioner Fellner and before the appeal tribunal of 26 January 2000, been some dispute over the question whether the claimant's room in the respite unit was available to him during the day-time. In general, one would think that it would be. Given that there would always be some uncertainties about timings and about the claimant's or his family's day-to-day health, it would be impossible for long-term arrangements to be made for another person to use the room. However, it might be that other people used the unit for day-care on a respite basis, and then the claimant's room might be used temporarily if it was free. The only actual evidence pointing in this direction is in Mr Sykes' letter of 9 November 1999, where it was said that the claimant's room was made available to him when on occasion he stayed during the day-time, but that day-time availability at other times would depend on demands from other service users. That is a bit vague. But it does indicate that accommodation would be made available to the claimant at any time that he needed it, even if possibly it was not immediately in his usual room. If it is necessary to do so, I find that accommodation was available to him at Red Laithes Court during the period when he was spending days at home.
36. The other significant change was the claimant's transfer from the respite unit to the transitional unit on 20 January 1995. The reasons for the transfer are described in the letter set out in paragraph 10 above, but there is virtually nothing in the contemporaneous documents about this. There are no minutes of review meetings between 31 August 1994 and 14 December 1995, when reminders began to be expressed that, because of the transfer, the claimant and his family should be responsible for personal needs such as laundry, ironing, provisions of toiletries etc. As noted above, invoices at the "Part III rate" continued to be issued after 20 January 1995, but stopped after 2 April 1995. There is no evidence of any particular rent or charge being levied or of any agreement for the occupation of the accommodation being signed on behalf of the claimant. There is a standard contract from 1993 in the papers and evidence of plans in 1995 to draw up new contracts for the transitional unit, but no evidence of any such document being applied to the claimant. The regime of the transitional units has been described above, and Mr Sykes described the residents as tenants and the funding as "partly comprises housing benefit supported rents together with other assessed contributions from the tenants". Mr Sykes, according to the record of the telephone call of 12 November 1999, said that the claimant was asked to make contributions using housing benefit from 20 January 1995, but there is no documentary evidence to support that. No housing benefit was paid over to Kirklees.
(iii) Legal analysis
37. I break down the analysis, applying the general approach in paragraphs 18 to 24 above, to deal separately with the periods from 20 July 1994 to 9 October 1994 (the first period), 10 October 1994 to 19 January 1995 (the second period) and 20 January 1995 to 7 October 1996 (the third period). I bear in mind that my decision can only consider the first period as from 7 September 1994 (see paragraph 6 above).
38. In relation to the first period there is no doubt that the claimant was in need of care and attention on his discharge from in-patient care in hospital which was not otherwise available. His family could not possibly have coped in the physical environment of the home as it was, even with nurses and carers coming in. Nor is there any doubt that he was provided with accommodation by the local authority and that it was residential accommodation. However, has the Secretary of State proved that it was provided under arrangements in pursuance of Part III of the National Assistance Act 1948, so that regulation 9(1)(a) of the DLA Regulations prevents the care component being paid to the claimant? I have concluded that he has.
39. I have already found in paragraph 28 above that there was a needs assessment under section 47 of the National Health Service and Community Care Act 1990 in relation to the claimant's initial admission to Red Laithes Court and in paragraphs 29 and 30 that the initial charges made appear to have been calculated under Part III, although there may not have been proper consideration of ability to pay and the regulations on less dependent residents. I have also rejected the submission that as the arrangements appear to have been made by the social services department, the provision must have been made under Part III. I come back to the other powers available when dealing with the third period. However, I take account of the perceptions within the local authority that at least the respite unit was Part III accommodation. There is no clear evidence of the appropriation of the whole or part of the premises to a particular purpose, but as explained above I consider that what is most significant is the powers under which the arrangements to provide the accommodation are made. I am satisfied that the initial provision was under Part III and did not cease to be under Part III because charges continued to be calculated beyond the limit allowed in section 22(5A).
40. In relation to the second period, two submissions of law made by Mr Woods are relevant. He submitted that the claimant's spending of most of the day-time at home with his family meant first that the accommodation at Red Laithes Court was no longer "residential". He further submitted that, within the terms of regulation 9, the claimant was not being provided with accommodation during the day-time, so that payability of an amount equivalent to the middle rate of the care component (excluding the effect of night-time attention) should not be excluded. Miss Commissioner Fellner's decision was rather against both submissions, but when considering the substitution of a decision on the claimant's appeal against the adjudication officer's decision of 4 January 1996, I should take an independent view, taking account of the further submissions of law made by the parties.
41. I reject both of Mr Woods' submissions. On the issue of residential accommodation, Mr Woods rightly submitted that accommodation could only be provided under Part III if it was residential accommodation. He went on submit that the effect of the decision of Moses J in R v Newham LBC, ex parte Medical Foundation for the Care of Victims of Torture was that residential accommodation was accommodation where a person lived, without any particular requirement of permanence. He then submitted that, taking into account Commissioners' decisions on when claimants live in residential care homes (in particular, CIS/101/1994), the claimant lived at the new family home, not Red Laithes Court. However, in my judgment, that line of argument puts far too much weight on the use of particular words by Moses J. When the judge concluded that "residential" in section 21(1) of the National Assistance Act 1948 meant "no more than accommodation in which a person lives", that was in the context of rejecting a submission that residential accommodation there was limited to accommodation in which the local authority can provide board and other services, something like a hostel or other institutional accommodation. The judge was using the word "lives" in a broad sense, in rejecting a narrower interpretation of "residential", and also recognised that a person might live in more than one place. I would have no difficulty in saying that from the date that the claimant started to spend significant periods of time at the family home that he was living there. But in the ordinary use of language, he was still living at Red Laithes Court as well. I do not ignore the family's responsibilities for providing food etc and for transporting the claimant backwards and forwards. But Red Laithes Court remained the place where he was got ready for and transferred to bed, where he slept and where he was got up and prepared for the day in his wheelchair. The accommodation with which the claimant was provided remained residential in the ordinary use of the word.
42. The second submission was that, if it were found that accommodation provided for the claimant was residential accommodation, it should not be regarded as provided during the day, so as to allow payment of the middle rate of the care component. I agree with Miss Commissioner Fellner in paragraph 31 of CDLA/15149/1996 that regulation 9(1) of the DLA Regulations bites only for days for the whole of which a person is a person for whom specified accommodation is provided. That is because it applies to a period "throughout which" the accommodation has been provided. Adopting the principles of R(S) 1/66 and R(S) 4/84, that requires the provision to have been made for the whole of each day before it can form part of the period for which the care component is not payable. However, if follows from those decisions and the others mentioned by Miss Commissioner Fellner that the minimum building block of a period is a calendar day. For each calendar day the question of entitlement and payability is all or nothing. In the present case, either the whole of the care component to which the claimant was entitled was payable for each day or nothing was payable. There is no scope within regulation 9(1) for making only the middle rate payable, where entitlement is to the highest rate, even if that would be a sensible and humane solution in cases where the cost of day-time attention falls on the claimant's family.
43. It must therefore be asked whether in each day from 10 October 1994 to 19 January 1995 the claimant was "a person for whom accommodation is provided" in pursuance of Part III of the National Assistance Act 1948. I tend to agree with Miss Commissioner Fellner in paragraphs 32 and 33 of CDLA/15149/1996 that accommodation is provided where it is made available although the person concerned does not actually avail himself of it. Thus, if it were necessary, my finding of fact in paragraph 35 above would lead to the conclusion that accommodation at Red Laithes Court was provided to the claimant throughout each day in the second period. But I would go slightly further. The exact words of regulation 9(1) must be considered. It seems to me that if a person is provided with accommodation with the meaning of residential accommodation each night, even if he cannot use the accommodation during the day, then he is throughout each day "a person for whom accommodation is provided". Therefore it does not matter whether or not accommodation would always have been actually available through the day. For the whole period, the claimant was a person who had what I have found to be residential accommodation provided for him. Such facts cause regulation 9(1) to bite for the whole day's entitlement to the care component of DLA.
44. If that is thought to be a harsh and unfair result, the remedy is the amendment of regulation 9(1). However, the resounding silence which followed the similar point which I made about regulation 8 of the DLA Regulations, on hospital in-patients, in CDLA/11099/1995 does not suggest any inclination in the government to make these provisions less crude and ill-fitted to the complicated structure of DLA.
45. Mr Woods made a third submission about the second period. He argued that, if I decided against him on this point in relation to the first period, once the claimant started to go home for substantial periods to be looked after by his family, the provision of residential accommodation could not be pursuant to Part III of the National Assistance Act 1948, because care and attention was available elsewhere. He drew attention to the fact that the claimant eventually went home permanently before the works in the bathroom and to instal a ceiling hoist were done. The family coped with a mobile hoist on loan and with carers coming in morning and evening, and presumably with district nurses coming in as they had to Red Laithes Court. Mr Woods submitted that such arrangements could have been made earlier and that the provision of accommodation in Red Laithes Court was not sufficiently "last resort" after 10 October 1994 to be authorised by section 21(1).
46. This is an issue which I have jurisdiction to consider. As from 10 October 1994, a significantly greater proportion of the claimant's needs for care and attention were being met by his family than before. However, there remained a very significant proportion which was not being met in that way or otherwise then under Part III. I consider that the circumstances must be looked at as they actually were. The fact is that no arrangements were made to get a mobile hoist in the claimant's home, or to do whatever was necessary to allow him to live there permanently before the large adaptations were made or to arrange home carers. Until such arrangements were made, not all of the care and attention which the claimant needed was available otherwise than by exercise of the local authority's powers under Part III or other legislation. As I have decided that the initial arrangements for accommodation in Red Laithes Court were made under Part III, I do not see anything in the change from 10 October 1994 to change that conclusion. There was still statutory authority for the local authority to provide residential accommodation under Part III.
47. Thus, I conclude that in the second period the claimant continued to be a person for whom accommodation was provided in pursuance of Part III of the National Assistance Act 1948, so that payability of the care component of DLA was excluded by regulation 9(1)(a) of the DLA Regulations.
48. In relation to the third period, the evidence is very much less helpful. First, it is important that the transitional unit had a separate budget and staff and the separateness of the two units is confirmed by Mr Sykes' letter of 9 November 1999 and by the letter quoted in paragraph 25 above. The situation is comparable with a move to new accommodation. There is no evidence of any needs assessment under section 47 of the National Health Service and Community Care Act 1990 nor of the two-stage process which should have been carried out if the provision of the accommodation in the transitional unit was in pursuance of Part III of the National Assistance Act 1948. Indeed, there is no evidence from which I can conclude what charges were made or their basis. I think that the continuing, but then stopped, issue of invoices at the Part III rate could only be a left-over from the situation as it was before 20 January 1995. All of that points towards the Secretary of State having failed to prove that the residential accommodation was provided in pursuance of Part III, in a situation where there could not be a simple reliance on the provision of the previous accommodation.
49. I do not find the references to financing through housing benefit a knock-out blow to provision having been under Part III. Contrary to Mr Woods' view, housing benefit can be awarded in respect of liability to make payments for accommodation provided under Part III where the local authority does not provide board in return for the standard charge (see Housing Benefit (General) Regulations 1987, regulation 8(2)(b) and the definition of "board" there). Thus the careful arrangements about responsibility for the cost of food at Red Laithes Court might have merely reflected an equally careful intention to allow residents access to the housing benefit scheme. I regard the references to housing benefit as neutral on whether arrangements for the claimant's accommodation in the transitional unit were made under Part III. I take the same view of the perceptions of various local authority representatives that the transitional unit was not Part III accommodation, as arrangements can be made under Part III for accommodation in "ordinary" premises.
50. Was there any other power under which Kirklees could have acted in providing the accommodation? First, there is section 11A of the Housing Act 1985, under which a housing authority may in connection with the provision of housing accommodation provide such welfare services as accord with the needs of the person concerned. That seems to authorise various forms of sheltered or supported accommodation. The provision would be by the housing authority, but Kirklees was also a housing authority. Although Mr Platt states that no housing powers were delegated to social services in respect of Red Laithes Court, that in my view leaves it unclear what powers were used from the outset, in the light of the letter quoted in paragraph 25 above. In addition, section 137 of the Local Government Act 1972 gives local authorities the power to incur expenditure for purposes not authorised by any other enactment. Section 11A(4) of the Housing Act 1985 provides that that section is not to be taken to restrict the operation of section 137 of the Local Government Act 1972. That is a very general power which can be exercised in carrying out any of a local authority's functions. I am satisfied that accommodation could have been provided for the claimant in the transitional unit of Red Laithes Court under statutory powers other than Part III of the National Assistance Act 1948, even though it was staffed and managed by the social services department.
51. Contrary to the final submission on behalf of the Secretary of State, dated 19 September 2001, I am far from being satisfied that the claimant's accommodation in the transitional unit of Red Laithes Court from 20 January 1995 was provided pursuant to Part III of the National Assistance Act 1948. I have already found that there was no clear appropriation of the entire or any part of the premises solely for use under the powers in Part III. There were alternative powers available and the evidence leaves it unclear what powers were in fact used in arranging for the claimant's accommodation in the transitional unit. In those circumstances, my decision in relation to the period from 20 January 1995 until the claimant moved out of Red Laithes Court to live permanently at home must be that it has not been shown that regulation 9(1)(a) applies, so that the care component is payable to the claimant.
52. I recognise the somewhat frustrating position in which representatives of the Secretary of State can find themselves in cases like this. It might seem that a local authority (and here I am speaking generally, not describing Kirklees Metropolitan Council), by having confused procedures, slack decision-making and poor record-keeping can create a situation where the Secretary of State cannot assemble proper evidence of the use of Part III of the National Assistance Act 1948. The result is that regulation 9(1)(a) of the DLA Regulations and similar provisions for other benefits cannot be made to bite, through no fault of officers of the Secretary of State. A result that might produce additional funds for the local authority through the payment of the care component of DLA and other benefits. But once again, if this result is not thought to be right, the remedy lies in the amendment of the legislation.
53. My final decision in the case is set out in paragraph 1 above.
(Signed) J Mesher
Date: 25 February 2002