AG v South Ayrshire Council (HB): [2017] UKUT 110 (AAC) : [2018] AACR 18

Upper Tribunal Administrative Appeals Chamber decision by Sir Crispin Agnew on 16 February 2017.

• From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
• Published: 13 March 2017
• Last updated: 13 September 2019 — See all updates

• Categories: Housing and council tax benefits, Tribunal procedure and practice
• Sub-categories: Housing and council tax benefits - other, Tribunal procedure and practice - tribunal jurisdiction
• Judges: Agnew, C
• Decision date: 16 February 2017

Read the full decision in [2018] AACR 18ws

Judicial Summary

Reported as [2018] AACR 18

Housing Benefit – exempted accommodation – jurisdiction of tribunal to determine whether provider of care, support and supervision complying with another regulatory regime – whether care, support and supervision being lawfully provided.

The claimant was housed at Safehaven and claimed housing benefit on the basis that the accommodation was exempt accommodation under paragraph 4(10) of Schedule 3 to the Housing Benefit and Council Tax (Consequential Provisions) Regulations 2006. If the accommodation is exempt accommodation, a higher rate of housing benefit can be applied. The local authority’s position was that the accommodation was not exempt accommodation because it was not being provided lawfully, in that Safehaven was not registered, and required to be registered, under the Public Services Reform (Scotland) Act 2010. The First-tier Tribunal (F-tT) agreed. The claimant appealed to the Upper Tribunal.

Held, allowing the appeal, that:

1. the 2010 Act does not make it unlawful to contract to provide care services, it only makes it unlawful not to register and thereby to avoid bringing the provider under the regulatory regime. Eisen v M’Cabe Ltd. [1920] UKHL 534 distinguished (paragraph 11);

2. it is not for the F-tT to determine whether or not Safehaven should be registered under the 2010 Act. The F-tT’s jurisdiction is only to determine whether or not this is exempt accommodation under paragraph 4(10), namely whether or not “care, support or supervision” is being provided in terms of paragraph 4(10) (paragraph 13 and 14);

3. the situation would be different if a court having jurisdiction had determined that Safehaven could not lawfully provide care services. Then that would be a fact to be taken into account by the F-tT in determining whether or not care services are being provided that fell within the definition of “care, support or supervision” under paragraph 4(10). R v the Housing Benefit Review Board for Allerdale District Council [2000] COD 462 QBD distinguished (paragraph 15 and 16).

Published 13 March 2017
Last updated 13 September 2019 + show all updates

1. 13 September 2019

   Decision selected for reporting as [2018] AACR 18

2. 31 July 2017

   Permission to appeal to the Court of Session granted

3. 13 March 2017

   First published.