Mahmoudi, R (On the Application Of) v London Borough of Lewisham & Anor [2014] EWCA Civ 284

[2014] EWCA Civ 284Case No C3/2013/2029
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Thursday, 6 February 2014
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE MAURICE KAY
LORD JUSTICE ELIAS
LORD JUSTICE TOMLINSON
Between
THE QUEEN ON THE APPLICATION OF MAHMOUDIAppellantLONDON BOROUGH OF LEWISHAM & ANOTHERRespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr S Craig QC (instructed by Battersea Law Centre) appeared for AppellantMiss Z Leventhal appeared for Respondent
J U D G M E N T

LORD JUSTICE MAURICE KAY:

This

[1]case is concerned with 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 dwelling. The relevant statutory provision is Regulation 7(8) of the Housing Benefit Regulations 2006. So far as material, it 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."
[2]This provision is an exception to the general rule. By Section 130(1) of the Social Security Contributions and Benefits Act 1992, and subject to a means test:
"A person is entitled to housing benefit if- (a) he is liable to make payments in respect of a dwelling (...) which he occupies as his home."
[3]Section 137(2)(h) enabled the making of regulations as to the circumstances in which a person is or is not to be treated as occupying a dwelling as his home. This resulted in the lengthy and detailed provisions of Regulation 7. Its starting point is that a person is treated as occupying as his home the dwelling "normally occupied as his home", and he is not to be treated as occupying any other dwelling as his home; Regulation 7, paragraph 1. This connotes that a person may only receive housing benefit for one dwelling at a time. Other parts of Regulation 7 provide for special cases by way of exception. Regulation 7(6) in particular specifies cases in which a dual entitlement may arise. They include the one prescribed by Regulation 7(8).[4]The facts of the present case as found by the First Tier Tribunal illustrate the problem and I now set those facts out in four numbered paragraphs from the First Tier Tribunal's decision:
"1. Mr Mahmoudi is seriously disabled and requires kidney dialysis three times a week. He had been living in damp accommodation at 129 Davenport Road. But this made it impossible for him to receive home dialysis and he was offered new accommodation on 21 October 2009. It was a condition of the offer that he accept it straight away and that his tenancy commenced on 26 October, which he accepted. 2. Mr Mahmoudi did not move into his new home until 8 November 2009. There were three reasons for the delay. First, because of his dialysis schedule the only day on which it was possible for Mr Mahmoudi to move was Sunday, the day on which he felt strongest. Second, it was necessary for him to arrange the removal of his furniture and belongings, which could not take place straight away. Thirdly, it was necessary for the new flat to be redecorated as it had been left in a dirty condition by its previous occupier; Mr Mahmoudi needed accommodation which was in very good condition and easy to keep clean because of his need to avoid infection and to make it possible for him to have home dialysis. It took time to arrange for the decorater to attend and the work itself was carried out throughout the week beginning Monday to October. 3. I am satisfied that Mr Mahmoudi's disability made it necessary for him to wait until the flat had been redecorated before moving in. As a result, even if other factors had not also made a short delay necessary, he would not have been able to move in until after the end of the week of 2 November. 4. It is accepted by the respondent that Mr Mahmoudi could not have avoided a rental liability for both properties from 23 October 2009 until he moved in on 8 November and returned the keys to his old flat on 9 November..."
[5]Mr Mahmoudi's claim for housing benefit in relation to the new property was refused by a benefit officer employed by the London Borough of Lewisham and his subsequent appeals were dismissed by the First Tier Tribunal on 23 September 2010 and by the Upper Tribunal Administrative Appeals Chamber on 12 June 2013: [2013] UKUT 026 (AAC). The Decision of the Upper Tribunal[6]Two grounds of appeal were pursued before the Upper Tribunal. The first concerned a point of pure construction in relation to the words "to adapt the dwelling to meet the disablement needs" in Regulation 7(8)(c)(i). The second asserted unlawful discrimination pursuant to Article 14 of the ECHR. Both of these grounds feature in the appeal to this court. I shall return very briefly to Article 14 later.[7]Both the First Tier Tribunal and the Upper Tribunal, paragraph 14, indicated that they might have resolved the construction point in Mr Mahmoudi's favour if it had not been for earlier authority, in particular, two decisions of Mr Commissioner May culminating in R(H)4/07 which had the status of a reported decision meaning that it was regarded as rightly decided by at least a majority of the then Social Security Commissioners. In R(H), he referred to his earlier decision in CH/1363/2006 where he had said this at paragraph 7:
"I am satisfied that the appellant's grounds of appeal are sound. Adaption of a property to meet disablement needs would, in my view, require more than furnishing it, carpeting it and putting it in order. It is clear to me that what the legislation has in mind would be such provision as fixed handrails, raised lavatories, widened doors and alterations to the structure of the building to meet a disablement need. The claimant, through his representatives, seeks to widen the scope of the regulation beyond what it was intended to bear. The provision of furnishings and carpeting may render a building habitable and more congenial to living. What it does not do is alter, change or add to the structure or fabric. I am satisfied that a change to the fabric or structure of the building is necessary, not simply the placing of furnishing or carpeting within it in order to adapt it. I accept that the statutory provisions are directed to 'the disablement needs of that person' and not 'someone' but it is the scope of the word 'adapt' which is crucial in the context of the disablement needs of 'that person'. If what was done was not encompassed by the word 'adapt' then the claimant can't succeed. That is the position in this case."
In R(H), he went to say at paragraph 11:
"I adhere to the view which I expressed in that case. I simply cannot accept that redecoration and furnishing in the form of carpeting constitutes adapting the dwelling for the reasons which I have set out in paragraph 7 of CH/1363/2006."
[8]In the present case, Upper Tribunal Judge Mesher, having expressed the equivocation to which I referred earlier, simply concluded that he could not say that R(H) was wrongly decided. On the contrary, the construction of Mr Commissioner May was "not an unreasonable one". Accordingly he proceeded to follow it. The Construction Issue[9]On behalf of the Secretary of State, Ms Leventhal submits that we should follow R(H) because it accords with the natural and ordinary meaning of the words "adapt the dwelling". In one sense, her submission about the natural and ordinary meaning of the words has force. If one asks a decorater for a quotation for decorating a house or a room, one might not think of the task as "adaptation". It is not a word generally used in that context. However, its use would not be wholly heterodox. 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 Mr Mahmoudi's purpose here.[10]It is when one considers the underlying purpose of Regulation 7(8) that the good sense of such a construction becomes apparent. Ms Leventhal submits that Regulation 7(6) in setting out a number of circumstances in which a claimant may be entitled to housing benefit in respect of two dwellings at the same time contains an exhaustive list of exceptional cases and indicates that exceptions to the general rule should be narrowly construed.[11]However, such an approach seems to me to disregard what Regulation 7(8)(c) is seeking to do. 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.[12]Indeed, I cannot resist the observation that, when R(H) was before Mr Commissioner May, the Secretary of State had filed a written submission referring to the underlying policy as being intended to cover the situation where "the accommodation needs to be scrupulously clean otherwise the person's mental health could be adversely affected". If one substitutes "physical" for "mental", one has this case.[13]To take the wider construction, as I am disposed to do, does not open up resort to Regulation 7(8) on an especially generous basis. The provision is still governed by the other restrictions and conditions that are written into it by the requirements of "reasonable delay" and the requirement of necessity and the link to meeting disablement needs. When First Tier Tribunal Judge Rodger QC reluctantly dismissed Mr Mahmoudi's appeal because he was constrained by the earlier approach of Mr Commissioner May, he suggested that the better approach might be:
"To adapt can mean to make fit, to change or modify to suit a purpose. What in any individual case will amount to adapting a dwelling to meet the disablement needs of a person will depend very much on the nature of those needs. Adapting a dwelling need not in my opinion involve works of any particular type and specifically need not involve any physical interference with the structure of the dwelling or any physical addition to it. Provided the result of the process which the dwelling has undergone is that it has been changed to make it more suitable for the needs of the disabled person, it can fairly be said to have been adapted."
[14]For my part, I entirely agree with that approach. Accordingly I would allow the appeal on the construction point and, indeed, would bring an end to these proceedings without the need to remit to the Upper Tribunal, because it seems to me that there is only one possible outcome once the construction issue is resolved in that way. In reaching this conclusion, I have kept in mind the inhibitions operating on this Court when considering second appeals from the Upper Tribunal, having regard to the specialist expertise of its judges; see Cooke v Secretary of State for Social Security [2003] 3 All ER 279 and Obrey v Secretary of State for Work and Pensions [2013] EWCA Civ 1584. However, the point of law in the present case is a hard-edged point of statutory interpretation which has plainly caused difficulty to the Upper Tribunal. It is entirely appropriate for this court to decide the point as mandated by Section 13 of the Tribunals, Courts and Enforcement Act 2007.[15]I should record that, in the course of submissions, we were referred to authorities in which courts exercising criminal jurisdiction have been called upon to construe the word "adapt" in relation to the definition of certain criminal offences. However, we have had to concentrate on the purpose behind the provision of housing benefit in the circumstances contemplated by Regulation 7(8). In the event, the purposive construction which I consider appropriate is not at all inconsistent with the criminal cases such as Maddox v Storer [1963] 1 QB 451 and R v Formosa [1991] 2 QB 1. Article 14[16]As I understand my Lords agree with my conclusion on the construction point and we shall be allowing the appeal by response to it, we have declined to hear argument on Article 14. I say no more about it than that it is difficult to see where the Upper Tribunal can be said to have fallen into legal error.

LORD JUSTICE ELIAS: I agree.

LORD JUSTICE TOMLINSON: I, too, agree.

Cited in 2 later judgments