CARF3077							20 October 1999

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

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BETWEEN:

CHIEF ADJUDICATION OFFICER

(Appellant) Appellant;

-and-

JAMES UPRICHARD

(Respondent) Respondent.

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CARSWELL LCJ

This is an appeal by way of case stated from a decision of the Social Security Commissioner issued on 10 November 1998, whereby she dismissed an appeal brought by the appellant the Chief Adjudication Officer against a decision of a Social Security Appeal Tribunal dated 6 October 1997.  By the latter decision the Tribunal allowed the respondent's appeal against the appellant's ruling on the respondent's claim for disability living allowance.  That ruling was that the respondent was entitled to disability living allowance at the lowest rate from 16 April 1996, but that no element of the care component was payable to him for any day spent in residential accommodation from and including 17 April 1996.

The respondent, a man aged 53 years, suffers from schizophrenia.  On or about 23 February 1996 he commenced residence in a house at 15 Johnston Way, Lisburn.  The house, which may be described as sheltered accommodation, was built by Habinteg Housing Association and managed by the Northern Ireland Association for Mental Health.   It is a self-contained furnished dwelling containing three bedrooms, each occupied by a person who suffers from a degree of disability and requires some support.  Each of these person holds under a licence agreement whereby he occupies a single bedroom and has the use in common with the other licensees of a lounge, dining room, kitchen, bathroom and WC.  The licence agreement describes the aims of the housing project in the following terms:
“The dwelling is used as part of a project designed to provide accommodation with additional care and support to meet the needs of people with mental health needs who require alternative accommodation.  Residents will be provided with accommodation and appropriate support for as long as NIAMH is able to cater for their support needs.  Should a licensee (a) no longer require the level of support offered, or (b) be in need of extra care beyond the scope of the scheme, such a licensee will be asked to find alternative accommodation.  In such cases the licensee, the Community Unit of Management or Trust and any other interested body will be consulted regarding the future needs of the licensee.”

 	The respondent pays a weekly rent to NIAMH, which is almost entirely met by the housing allowance payable to him.  He receives the assistance of a support worker, who does not reside on the premises, but comes in for three hours a week to assist him.  Under the terms of the licence agreement the respondent has permission to occupy his accommodation for the duration of the licence so long as he complies with the terms of the agreement.  He is obliged under its terms to use the premises for residential purposes as his only or principal home and not to use them for business purposes or for any illegal purpose.  Several obligations are imposed upon him by the agreement, largely directed towards the avoidance of nuisance, disruption and noise on the part of the licensee. The licence will be terminated if, inter alia, suitable alternative accommodation has been offered or if the scheme no longer meets the licensee's needs.   
Entitlement to disability living allowance is governed by sections 71 to 76 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992.  It consists of a care component and a mobility component, and a person may be entitled to either or both.  The conditions for the award of the care component are set out in Section 72(1), and it was not in dispute that the respondent satisfied them.
Under section 72(8) regulations may provide that the allowance shall not be payable in the following circumstances:
“(8)	Regulations may provide that 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 a period when he is a person for whom accommodation is provided -

(a)	in pursuance of Article 5,7,15 or 36 of the Health and Personal Social Services (Northern Ireland) Order 1972; or

(b)	in circumstances in which the cost is, or 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.”

The applicable provisions are contained in Regulation 9 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992.  The material provisions Regulation 9(1) and (6) read as follows:
“9.-(1)	Except in the cases specified in paragraphs (2) and (4) and, for the purposes of sub-paragraph (b), paragraph (5), and for the purposes of sub-paragraph (c), paragraphs (5) to (7), and subject to regulation 10, a person shall not be paid any amount in respect of 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, not being accommodation to which regulation 8 refers, is provided -

(a)	in pursuance of Article 5,7,15 or 36 of the Order; 

(b)	in circumstances where the cost of the accommodation is borne wholly or partly out of public or local funds in pursuance of that enactment 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 that enactment or of any other enactment relating to persons under disability or to young persons or to education or training.

(6)	Paragraph (1)(c) shall also not apply -

(a)	where the person is living in accommodation as a privately fostered child;

(b)	where he is a person for whom accommodation is made available for his occupation in accordance with Article 10 of the Housing (Northern Ireland) Order 1988 (duties of the Executive to persons found to be homeless);

(c)	where the person himself pays the whole cost, and has always paid the whole cost, of the accommodation; or

(d)	except in a case to which paragraph (7) applies, where the accommodation the person is living is a private dwelling,

and for the purposes of this paragraph ‘privately fostered child’ shall be construed in accordance with the provisions of Part I of the 1968 Act.”

It was not in dispute that the respondent comes within regulation 9(1)(c), and the issue between the parties was whether he is living in a "private dwelling" within the meaning of Regulation 9(6)(d).  It was argued on behalf of the appellant that since the respondent occupies his bedroom as a licensee under the terms of his licence and shares the use of the other rooms in the house, and is obliged to grant access to those providing care and support services, he cannot be said to be living in a private dwelling.  Counsel for the respondent submitted, on the other hand, that the term "private dwelling" is used in the present context to distinguish accommodation of the type occupied by the respondent from institutional accommodation where the residents are provided with full-time or substantial care and attention.
The Social Security Appeal Tribunal found in favour of the respondent that the accommodation constituted a private dwelling, on the ground that the situation was akin to that where two or three students share a house, each having his own bedroom but sharing the other accommodation.  The Social Security Commissioner upheld the tribunal's decision.  She set out her reasons in paragraphs 35 to 37 of her decision:
“35.	In this case, however, I am of the view that the tribunal’s conclusion was correct.  There are various factors which have to be considered in deciding whether or not a property is occupied as a private dwelling and no one can be conclusive.  The following list is by no means conclusive but I do think that these are factors which will usually fall for consideration.  The factors are: the claimant’s control over his own access and egress from the premises, the extent of control over the admission of other persons to the premises, whether and to what extent persons are engaged  whether for payment or voluntarily to spend time at the premises, the degree of independence which the occupants of the premises have in relation to the activities and routines carried on there.

36.	In this case Mr Uprichard has control over his own access to and egress from the premises.  Other than the obligation (and I do think that there was an obligation) to allow access to the care worker, he had control over his own bedroom.  True he did share communal facilities with the other occupant and to that extent could not control the guests admitted by the other occupant to those facilities but this is no different to the case of a family where one member of the family may not like the invitees of another but still has no control over their admission to the family home.  Within the house other than the usual obligations not to cause nuisance etc. Mr Uprichard had control over his own routine and, with support, responsibility for his own domestic arrangements.  Even as regards admission of the care worker, Mr Uprichard had an element of control he could, within reason, decide when the care worker should or should not come in and there was no obligation on him to admit the care worker at inconvenient times.  His obligation was to admit the care worker to the extent needed to carry out the support services deemed necessary by the Northern Ireland Mental Health Association.  Mutually convenient times could be arranged.

37.	Taking this picture and bearing in mind that the only obligation regarding access was to admit the care worker I consider that the occupancy was that of a private dwelling.  I have no doubt that any member of the public being asked the question ‘Does he have his own place now’ would reply, ‘Yes, somebody goes in at times to keep an eye on him but he does have his own home’.  Indeed this would seem to be the rationale behind the whole Care in the Community policy.  The conditions of the license did not render the occupancy other than that of a private dwelling.”

At the request of the appellant the Commissioner stated a case on 6 May 1999, in which the following questions were posed for the opinion of this court:
“(a)	Was I correct in law holding that the accommodation occupied by the Claimant/Respondent constituted a private dwelling for the purposes of and within the meaning of Regulation 9 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992?

(b)	Was I correct in law in holding that the said Claimant/Respondent was entitled to the payment of Disability Living Allowance under the provisions of the said Regulations?

(c)	Was I correct in law in holding that the provisions of Regulation 9 of the said Regulations did not preclude payment of Disability Living Allowance to the Claimant/Respondent under the terms of the award made by the Respondent/Appellant on 24 September 1996?”

We were unable to obtain any guidance from reported decisions, the legislation in Northern Ireland being somewhat different from that applying in England.  We were referred to C & G Homes Ltd v Secretary of State for Health [1991] 2 All ER 841, but we did not consider that it assisted us in our decision.  In that case the issue was whether the use of houses on a residential estate to provide supervised housing for former hospital patients infringed a covenant not to use any of the houses "for any ¼ purposes other than those incidental to the enjoyment of a private dwelling house."  The court examined the terms on which the patients occupied the houses: each house had four residents, on an arrangement broadly similar to that in the present case, save that there seems to have been more persons involved in nursing and domestic support, some of whom slept overnight in the houses.  The court held that on the proper construction of the covenant the Secretary of State was not using the houses as private dwelling houses.  Nourse LJ said at page 848-9:
"Use as or for the purposes of a private dwelling seems to assume that there is at least one private individual who, whenever he chooses, can occupy the house as his own, even though he may not be in actual occupation, for example where he allows his children and some friends to live there."

 	This decision, given in the context of a covenant for the use of premises as a private dwelling, involves very different considerations from those applicable to the present case.  We are dealing here with housing accommodation paid for out of or subsidised by public funds, and we are seeking a construction for the phrase “living in a private dwelling” which will give a sensible meaning to it in this context.  We agree with the contention that the term in the present context is intended to distinguish the accommodation from that in which the domestic care of the residents is provided as part of their terms of residence – for example, in a nursing home where the claimant is not himself paying the charges – in which event to pay disability living allowance to him would involve double benefit.  One must therefore look for characteristics of the accommodation which distinguish it from that in which care is included.  We agree with the approach of the Commissioner in the paragraphs which we have quoted from her decision.  It is not a question to be answered solely by examining the terms of the resident's tenure of his accommodation.  One has to have regard to factors of the type set out by the Commissioner, with the object of determining whether the accommodation should be regarded as institutional accommodation in which care is provided or a private dwelling in which care is not provided as part of the terms of occupation.  No doubt there may be cases in which the line will be difficult to draw and it may not be easy to determine on which side particular accommodation falls.  We are satisfied, however, that the Commissioner approached the present case in the correct manner and that her decision was quite sustainable on the correct construction of the regulations.
We therefore answer each of the questions posed in the case stated in the affirmative and dismiss the appeal.

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

_____

BETWEEN:

CHIEF ADJUDICATION OFFICER

(Appellant) Appellant;

-and-

JAMES UPRICHARD

(Respondent) Respondent.

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J U D G M E N T
O F
CARSWELL LCJ

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