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

UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
[2017] UKUT 110 (AAC)Case No GSH/360/2016
Between
AGAppellantSouth Ayrshire CouncilRespondent
Date 16 February 2017Category: Housing and council tax benefits, Tribunal procedure and practiceSubcategory: Housing and council tax benefits other, Tribunal procedure and practice tribunal jurisdiction
[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). DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER) The appeal is allowed. The decision of the tribunal given at Ayr on 14 April 2016 is set aside. The Judge of the Upper Tribunal remakes the preliminary decision of the First-tier Tribunal on the tribunal’s findings in fact. It is as follows: The accommodation occupied by the claimant at Safehaven is exempt accommodation as defined by paragraph 4(10) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (SI 2006/217) The case is referred back to the First-tier Tribunal (Social Entitlement Chamber) for Judge D Hutton to continue hearing the appeal. [2018] AACR 18 (AG v South Ayrshire Council) 2 REASONS FOR DECISION[1]This is an appeal against This is an appeal against aa preliminary preliminary decision of the decision of the FirstFirst--tier Tribunal (Ftier Tribunal (F--tT)tT) given given at Ayr on 14at Ayr on 14 April 2016April 2016 for which leave to appeal was given by the tribunal judge on 28for which leave to appeal was given by the tribunal judge on 28 June June 20172017.. Background[2]The claimant who is a longThe claimant who is a long--term substance abuser, who has had contact with the term substance abuser, who has had contact with the criminal justice systemcriminal justice system,, took up residence at Safehaven whitook up residence at Safehaven which is a registered charity ch is a registered charity established for the rehabilitation of substance abusers. Safehaven provides supported established for the rehabilitation of substance abusers. Safehaven provides supported accommodation to substance abusers.accommodation to substance abusers.[3]The claimant claimed housing benefit on the basis that the SafehavenThe claimant claimed housing benefit on the basis that the Safehaven accommodation accommodation in South Ayrshire was ein South Ayrshire was exempt accommodation as defined in paragraph 4xempt accommodation as defined in paragraph 4(10)(10) of Schedule 3 to of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (SI 2006/217)(SI 2006/217) (“the 2006 Regulations”). If the accommodation is exempt accommodation (“the 2006 Regulations”). If the accommodation is exempt accommodation then a higher rathen a higher rate of housing benefit can be applied.te of housing benefit can be applied.[4]The definition of exempt accommodation is in subThe definition of exempt accommodation is in sub--paragraph paragraph 44(10) and is, for the (10) and is, for the purposes of this appeal, accommodationpurposes of this appeal, accommodation::
“(10) provided by a non-metropolitan county council in England within the meaning of Section 1 of the Local Government Act 1972 a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision;”
The First-tier Tribunal decision[5]The The FF--tT dtT decided that the accommodation did not comprise exempt accommodation.ecided that the accommodation did not comprise exempt accommodation. The The FF--tTtT decided that Safehaven required to register under section 59 of the Public Services decided that Safehaven required to register under section 59 of the Public Services Reform (Scotland) Act 2010Reform (Scotland) Act 2010 (“PSR Act”)(“PSR Act”) because it provided care services because it provided care services which included which included peper section 47(r section 47(11))(a) “(a) “a sa support upport sservice”ervice” and 47(1)(j)and 47(1)(j) ““an aan adult dult pplacement lacement sservice”ervice”,, as defined as defined by Schedule 12. by Schedule 12. The The FF--tTtT then went on to hold “that services provided by an unregistered then went on to hold “that services provided by an unregistered provider are by definition not provided lawfully provider are by definition not provided lawfully and cannot be the foundatand cannot be the foundation forion for exempted exempted accommodation”accommodation”. .[6]The The FF--tTtT held that the services provided at Safehavenheld that the services provided at Safehaven, which was a charity,, which was a charity, were were genuine and effective and could not be ignored as genuine and effective and could not be ignored as de minimusde minimus; ; Chorley Borough Council v ITChorley Borough Council v IT (HB)(HB) [2009] UKUT 107 (AAC)[2009] UKUT 107 (AAC); ; [2010] AACR 2.[2010] AACR 2. Thus iThus it can be seen that, but for the t can be seen that, but for the technical decision that these were not services lawfully provided, the technical decision that these were not services lawfully provided, the FF--tTtT would have held would have held that this was exempt accommodation.that this was exempt accommodation. Ground of appeal and position of the Secretary of State and Respondent[7]Apart from an assertionApart from an assertion that the reasons are inadequate, the claimant has two grounds that the reasons are inadequate, the claimant has two grounds of appeal. First, that on the evidence accepted by the of appeal. First, that on the evidence accepted by the FF--tTtT Safehaven could not be regarded as Safehaven could not be regarded as [2018] AACR 18 (AG v South Ayrshire Council) 3 either a “support service” or as an “adult placement service” and so section 59 of the PSR Act either a “support service” or as an “adult placement service” and so section 59 of the PSR Act diddid not apply to Safehaven and therefore the unlawfulness decision was unfounded. Secondly, not apply to Safehaven and therefore the unlawfulness decision was unfounded. Secondly, that the HB regime was separate from the PSR Act regime and so whether or not Safehaven that the HB regime was separate from the PSR Act regime and so whether or not Safehaven required to be registered under the PSR Act was irrelevant to a decision on wherequired to be registered under the PSR Act was irrelevant to a decision on whether or not ther or not Safehaven was exempt accommodation under the 2006 Regulations; reference was made to Safehaven was exempt accommodation under the 2006 Regulations; reference was made to Chorley Borough CouncilChorley Borough Council where the provider was not registered with the Care Quality where the provider was not registered with the Care Quality Commission, but that did not affect entitlement.Commission, but that did not affect entitlement.[8]The Secretary of StateThe Secretary of State susupports the appeal because the 2006 Regulations do not pports the appeal because the 2006 Regulations do not require a provider of exempt accommodation to be registered. The require a provider of exempt accommodation to be registered. The FF--tTtT had found that the had found that the support provided was not support provided was not de minimusde minimus and therefore the appeal should and therefore the appeal should bebe allallowed. Whether or owed. Whether or not Safehaven werenot Safehaven were in in breach of breach of obligationsobligations under the PSR Act was a matter for the regulator.under the PSR Act was a matter for the regulator.[9]The Council’s position is that it is “implicit in the definition of exempt The Council’s position is that it is “implicit in the definition of exempt accommodation that the services are provided legally” and reference is made to accommodation that the services are provided legally” and reference is made to R v the R v the Housing Benefit RevieHousing Benefit Review Board for Allerdale District Councilw Board for Allerdale District Council ex parte ex parte DoughtyDoughty [2000] COD [2000] COD 462 QBD462 QBD and and Eisen v MEisen v M’’CabeCabe Ltd. Ltd. [[19201920]] UKUKHLHL 535344. The Council goes on to submit that the . The Council goes on to submit that the contract between the appellcontract between the appellant ant and her landlord is, absent registration, illegal and and her landlord is, absent registration, illegal and unenforceable tounenforceable to the extent of the provision of services … It would be an extraordinary state the extent of the provision of services … It would be an extraordinary state of affairs were public resources to be made available to fund such a provision.”of affairs were public resources to be made available to fund such a provision.” Discussion[10]Part 5 of the PSR Act establishes Social Care and Social Work Improvement Scotland Part 5 of the PSR Act establishes Social Care and Social Work Improvement Scotland ((“SCSWIS”) whose functions include monitoring, inspecting and reporting on social services “SCSWIS”) whose functions include monitoring, inspecting and reporting on social services which are defined by section 46 to include care services and social work services. Under which are defined by section 46 to include care services and social work services. Under section 59 “Any person who seeks to provide a care service must apply to SCSWsection 59 “Any person who seeks to provide a care service must apply to SCSWIS for IS for registration of the service” and registrregistration of the service” and registration may be granted or refused and, if required, ation may be granted or refused and, if required, SCSWIS can give an improvement noticeSCSWIS can give an improvement noticess and may cancel registration. and may cancel registration. SCSWIS hasSCSWIS has to to establish a complaint’s procedure about the provision of care services. establish a complaint’s procedure about the provision of care services. UnderUnder section 80 any section 80 any person who provides a care service person who provides a care service while not registered commits anwhile not registered commits an offence.offence.[11]It is clear to me that the purpose of part 5 of the PSR Act is to regulate care services It is clear to me that the purpose of part 5 of the PSR Act is to regulate care services and tand to maintain standards and to take steps to remove care providers from o maintain standards and to take steps to remove care providers from the system who are the system who are not meeting the required standards. Failure to register is a criminal offence.not meeting the required standards. Failure to register is a criminal offence. The PSR Act does The PSR Act does not make it unlawful to contract to provide care services, it only makes it unlawful not to not make it unlawful to contract to provide care services, it only makes it unlawful not to register and thereby to avoid bringing the providregister and thereby to avoid bringing the provider under the regulatory regime. I consider this er under the regulatory regime. I consider this is an important distinction from is an important distinction from Eisen v McCabe Eisen v McCabe whichwhich was concerned with a war time was concerned with a war time regime that provided that persons should not enter into contracts for the sale of timber without regime that provided that persons should not enter into contracts for the sale of timber without a permit; thus any contracta permit; thus any contract made without a permit was inoperative in law.made without a permit was inoperative in law.[12]JudJudge May said ge May said in CSH/298/2011in CSH/298/2011, a case in which Safehaven was involved, , a case in which Safehaven was involved, obiterobiter because as he recognisedbecause as he recognised that this was not material to his decisionthat this was not material to his decision::
“It seems clear that the landlords were not registered under the 2001 Act of the Scottish Parliament and that registration was in fact required. I am sympathetic to Mr [2018] AACR 18 (AG v South Ayrshire Council) 4 Lynch’s submission that it is implicit in the definition in regulation 4(10) that any care support or supervision provided has to be lawfully provided.”
[13]I agree with the Secretary of StateI agree with the Secretary of State and the ground of appeal that it is not for the and the ground of appeal that it is not for the FF--tTtT to to determine whether or not Safehaven should be registered under the PSR Act. The determine whether or not Safehaven should be registered under the PSR Act. The FF--tTtT’s ’s jurisdiction is only to determine whether or not this is exempt accommojurisdiction is only to determine whether or not this is exempt accommodation under dation under Regulation 4(10). It is for the SCSWIS or others to act under the PSR Act if it is considered Regulation 4(10). It is for the SCSWIS or others to act under the PSR Act if it is considered that SCSWISthat SCSWIS is providingis providing care servicescare services, as defined by that Act,, as defined by that Act, without being registered.without being registered. I I consider that there is a significant risk that if the consider that there is a significant risk that if the FF--ttTT could rule on whether or not Safehaven could rule on whether or not Safehaven required registration as a preliminary to deciding whether it could provide lawful services, required registration as a preliminary to deciding whether it could provide lawful services, then different tribunals might reach different decisionthen different tribunals might reach different decisionss if slightly different facts were resented if slightly different facts were resented in different appealsin different appeals anand that would be very unsatisfactoryd that would be very unsatisfactory. . It must be born in mind that “care, It must be born in mind that “care, support or supervision” in the regulations is different from “care services” in the PSR Act; i.e. support or supervision” in the regulations is different from “care services” in the PSR Act; i.e. carrying out housing repairs beyond the landlord’s obligations can be “support” carrying out housing repairs beyond the landlord’s obligations can be “support” –– ChoChorley rley Borough CouncilBorough Council paragraph (7) paragraph (7) –– and that would not beand that would not be a care service under the PSR Act.a care service under the PSR Act. Further most regulators have a discretion whether or not to take enforcement action; what Further most regulators have a discretion whether or not to take enforcement action; what happens if a regulator has decided not to take action or decided that reghappens if a regulator has decided not to take action or decided that registration is not istration is not required (facts not known to a tribunal), but the tribunal then finds that the provider ought to required (facts not known to a tribunal), but the tribunal then finds that the provider ought to have been registered and so no “legal” service is provided.have been registered and so no “legal” service is provided. One can envisage the situation One can envisage the situation where there is a criminal prosecution where the defwhere there is a criminal prosecution where the defendant is found not guilty; can the endant is found not guilty; can the FF--tTtT consider the matter again because the issue will be determined on a balance of probabilities consider the matter again because the issue will be determined on a balance of probabilities rather than beyond reasonable doubt.rather than beyond reasonable doubt. I also raise theI also raise the issue of how far could the issue of how far could the FF--tTtT go on the go on the question ofquestion of “lawfulness” i“lawfulness” in relation to other regulatory regimes; e.g. if planning permissionn relation to other regulatory regimes; e.g. if planning permission isis required but has not been obtained does that make the provision of services in an required but has not been obtained does that make the provision of services in an establishment “unlawful” or if the premises do not comply with fire regulations should the establishment “unlawful” or if the premises do not comply with fire regulations should the FF--tTtT decide decide that the provision of services is not lawful. that the provision of services is not lawful.[14]In my opinion the tribunal is only concerned with whether or not “care, support or In my opinion the tribunal is only concerned with whether or not “care, support or supervision” is being provided in terms of Regulation 4(10). If the Secretary of State wanted supervision” is being provided in terms of Regulation 4(10). If the Secretary of State wanted to do soto do so,, it would be quite easit would be quite easy to amend the regulations to provide that it is only “care, y to amend the regulations to provide that it is only “care, support or supervision” provided by an appropriate rsupport or supervision” provided by an appropriate registered provider in Scotland or egistered provider in Scotland or England England etc. that qualified. This has not been done. etc. that qualified. This has not been done. I am of the opinion that a tribunal does not have an I am of the opinion that a tribunal does not have an indindependent jurisdiction to determine whether or not a provider is complying with some other ependent jurisdiction to determine whether or not a provider is complying with some other regulatory regime.regulatory regime.[15]The situation would be different if a court having jurisdiction had determined that The situation would be different if a court having jurisdiction had determined that Safehaven could not lawfully provide care services. Then that Safehaven could not lawfully provide care services. Then that would be a fact to be taken into would be a fact to be taken into account by the account by the FF--tTtT in determining whether or not care services were being provided that fell in determining whether or not care services were being provided that fell within the definition of “care, support or supervision” under regulation 4(10). The within the definition of “care, support or supervision” under regulation 4(10). The Allerdale Allerdale District CouncilDistrict Council case is an examplecase is an example. In that case the application for registration as a small . In that case the application for registration as a small residential home was rejected by the Registered Homes Tribunal. The fact that registration residential home was rejected by the Registered Homes Tribunal. The fact that registration had been rejectedhad been rejected by the regulatorby the regulator meant that meant that care services could not be care services could not be lawfully lawfully provided. provided. The Housing BoThe Housing Board then made their decision on the basis of the fact that the proper regulatory ard then made their decision on the basis of the fact that the proper regulatory body had refused registration and so care could not be provided. Abody had refused registration and so care could not be provided. As the Secretary of State says s the Secretary of State says in “11. The HB decision maker may decide on a balance of probabilities that a lin “11. The HB decision maker may decide on a balance of probabilities that a landlord who andlord who does not register as a care service in Scotland is not providing a sufficient level of care, does not register as a care service in Scotland is not providing a sufficient level of care, support or supervision to meet the definition.” support or supervision to meet the definition.” [2018] AACR 18 (AG v South Ayrshire Council) 5[16]If Judge May’s comment that “it is implicit in the definition in regulation 4(10) that If Judge May’s comment that “it is implicit in the definition in regulation 4(10) that any care suppoany care support or supervision provided has to be lawfully provided” is read in the context rt or supervision provided has to be lawfully provided” is read in the context that the regulator has made such a decision, which is then a primary fact for the tribunal, then that the regulator has made such a decision, which is then a primary fact for the tribunal, then I would agree. However, I do not read Judge May’s comment to be that the tribunaI would agree. However, I do not read Judge May’s comment to be that the tribunal has a l has a jurisdiction to determine itself whether or not the provision of care, support or supervision jurisdiction to determine itself whether or not the provision of care, support or supervision is is lawful lawful under some other regulatory regime. I do not consider that the under some other regulatory regime. I do not consider that the Allerdale District Allerdale District CouncilCouncil case assists the Respondent, because that case was a ccase assists the Respondent, because that case was a case where the regulator had ase where the regulator had made a decision and that decision was then the primary fact used by the Housing Board to made a decision and that decision was then the primary fact used by the Housing Board to make their decision. It is not a case that supports the proposition that a make their decision. It is not a case that supports the proposition that a local authority or local authority or FF--tTtT has jurisdiction to make a decision on whas jurisdiction to make a decision on whether or not a provider is complying with some other hether or not a provider is complying with some other regulatory regime.regulatory regime.[17]In view of the decision I have taken above, it is not really for me to say whether or notIn view of the decision I have taken above, it is not really for me to say whether or not Safehaven is providing a “support service” or an “adult placement service”. Safehaven is providing a “support service” or an “adult placement service”. Prima faciePrima facie I amI am inclined to agree with the argument in the Grounds of Appeal that as Safehaven provides a inclined to agree with the argument in the Grounds of Appeal that as Safehaven provides a service which provides overnight accommodation it does not come within “support service” service which provides overnight accommodation it does not come within “support service” butbut I consider thatI consider that it might come within a paragraph 2 as care home service it might come within a paragraph 2 as care home service and that and that as as “an “an adult placement service” is a service adult placement service” is a service that that worksworks “by placing the person with a family or “by placing the person with a family or individual” and that is not what Safehaven does.individual” and that is not what Safehaven does.[18]For all these reasons I hold that the For all these reasons I hold that the FF--tTtT erred in law in deciding itself whether or not erred in law in deciding itself whether or not Safehaven oSafehaven ought to have registered under the PSR Act and so deciding that the services were ught to have registered under the PSR Act and so deciding that the services were not lawfully provided. I remit to the same tribunal not lawfully provided. I remit to the same tribunal Judge Judge to continue the appeal hearing on the to continue the appeal hearing on the basis that this is exempt accommodation based on the finding in paragraph 15. Tbasis that this is exempt accommodation based on the finding in paragraph 15. This leaves it his leaves it open to the Respondent to argue that cheaper alternative accommodation is available open to the Respondent to argue that cheaper alternative accommodation is available or to or to raise any other competent argument raise any other competent argument..