Chapter 8: “More Than Minimal”

Managing Housing Benefit Claims in Supported Housing | Part B: The Case Law

The law

8.1 The de minimis test and the landlord as non-principal support provider: R(H) 7/07

R(H) 7/07 (CH/3811/2006) was decided by Commissioner Turnbull on 7 March 2007. The claimant had mental health problems and lived in a shared house let by Reside Housing Association. Her care and support came from a separate care provider. Reside accepted that the care provider was not acting on its behalf, following R(H) 2/07, and argued that it provided some support itself through its tenant liaison officer.

The landlord need not be the main provider. The tribunal had held that the landlord must be the “main” provider of care, support or supervision. The Commissioner held that it was wrong to read that requirement into the definition. The definition requires only that the landlord provides the claimant with care, support or supervision. Had any limitation of that kind been intended, it would have been made expressly (para 21).

But what it provides must be more than minimal. The Commissioner applied the general principle of statutory construction that the law does not concern itself with trifling matters, following Sharratt v London Central Bus Co Ltd [2003] EWCA Civ 718 (para 23). A landlord cannot bring itself within the definition by providing “a token or minimal amount of care, support or supervision” (para 23, as quoted in secondary summaries).

The outcome. On the facts, the tenant liaison officer had limited contact with the claimant, and was responsible for many other tenants. Such support as he was able to provide to her was not more than minimal (para 29), and the appeal was dismissed.

What R(H) 7/07 decided, and what it did not. It set the legal test: more than minimal. It did not set a level of support, a number of contacts or a number of hours. The outcome was a finding of fact about one claimant’s contact with one officer. Chapter 4 (4.2) explains why findings of fact should not be treated as rules.

8.2 The “real difference” test: Bristol CC v AW

Bristol City Council v AW [2009] UKUT 109 (AAC) (CH/200/2009) was decided by Judge Turnbull on 15 June 2009.

The facts. The claimant had a brain injury and learning disabilities, and at times displayed extremely challenging behaviour. The primary care trust commissioned his care, supervision and most of his support from one organisation. It also commissioned Golden Lane Housing (GLH), the landlord, to provide specified housing-related support, for about £10 a week (paras 3, 4 and 34). The council refused exempt status, relying heavily on the low cost of the landlord’s support. The tribunal found that GLH provided more than minimal support. The Upper Tribunal dismissed the council’s appeal.

The test. Judge Turnbull accepted that:

“a satisfactory test for determining whether support of more than a minimal amount is provided is to ask whether the support provided was likely to make a real difference to the Claimant’s ability to live in the Property.” (para 31)

The cost of support is not the test. £10 a week was “not an obviously nominal or token payment” (para 31). And the question was not whether the value of the support justified, or bore any proportion to, the extra Housing Benefit payable if the accommodation was exempt: “The legislation does not require or permit any such comparison” (para 32).

What counted. The tribunal was entitled to rely on items of support actually provided, including monitoring the care provided by the other organisation and the continued suitability of the accommodation, and arranging repairs of the unusual level of damage likely to result from the claimant’s behaviour, together with support that was available to him (paras 38, 46, 47 and 50).

What did not count. The landlord’s help with a Housing Benefit appeal about exempt status could not be taken into account. “It cannot in my judgment be right that what would otherwise be a bad case can be made into a good one by virtue simply of the landlord’s willingness to support the tenant by taking the case to appeal” (para 49).

Different minds may differ. In R(H) 4/09 (CH/779/2007 and others), the same judge had found that GLH did not provide more than minimal support in three other cases. That did not make the Bristol tribunal wrong. Whether support goes beyond ordinary property management, and whether it is more than minimal, are questions “on which different minds may legitimately differ” (para 52). The evidence was also different. In R(H) 4/09, there was detailed evidence of visits and calls over several years, and “the rarity of the instances in which some items of support … had been called upon indicated that the support was not more than minimal” (paras 54 and 55).

8.3 The hours myth

Where it comes from. Many councils and providers work on the basis that support must average two or three hours per tenant per week. It is usually traced to CH/1289/2007, decided by Commissioner Turnbull on 3 July 2007.

What CH/1289/2007 actually said. The case concerned Woolfield House, a hostel for homeless people in Bury run by Rehab98 Ltd. After its Supporting People funding ended, some support staff were made redundant. The tribunal found that the remaining support was minimal. The Commissioner set that decision aside, partly because the tribunal had not examined the evidence of staff time:

“The Council had calculated, based on that evidence, that the support which could be provided would amount to an average of 3 hours per week per occupant. It [is] not in my judgment obvious that support of that order is minimal for this purpose. The Tribunal did not go into this evidence at all.” (para 21)

Three points follow:

1. The three hours was the council’s own calculation of what could be provided at one hostel.
2. The Commissioner said only that it was not obvious that this was minimal. He did not say that three hours was needed, or that anything less would be minimal.
3. He sent the case back for a new tribunal to decide. Whether support is provided is “all a matter of fact and degree” (para 33).

CH/1289/2007 is therefore not authority for any minimum. Treating it as one turns a finding about one scheme into a rule of law, which is an error (R(I) 12/75, para 19; Chapter 4, 4.2).

Other points from CH/1289/2007. The decision also held that:

• a low support charge does not show that support is minimal, particularly where the landlord says it subsidises the support from elsewhere (para 20)
• items that benefit the landlord as well as the tenant can still be support (para 22)
• the specimen licence agreement’s reference to support was relevant evidence (para 25)

The guidance agrees. “There is no set number of hours that must be provided for the care, support or supervision to be sufficient. Instead, the activities performed in providing it must be considered (alongside the time spent)” (DWP guidance, para 151).

Why hours are a poor measure. Much support and supervision cannot sensibly be counted in hours. An on-call service, a landlord’s readiness to intervene in disputes between tenants, or repairs carried out quickly because of a tenant’s needs may take little recorded time and still make a real difference (Chapter 6, 6.4 to 6.6; DW v Oxford CC [2012] UKUT 52 (AAC), para 53). Equally, many hours of activity that is ordinary housing management, or that the claimant does not need, add nothing.

8.4 Needs-led assessment of each claimant

The test applies to the claimant’s dwelling. If a building contains two or more dwellings, the definition “must be applied in relation to each dwelling, and not in relation to the building as a whole”. A claimant’s accommodation will not be exempt “if no (or only minimal) care, support or supervision is provided to him by the landlord, however much care, support or supervision may be provided to other tenants” (CH/1289/2007, para 27).

This does not mean evidence for every tenant, every time. The landlord may be able to show that the level of support is broadly similar for all tenants, or that it only accepts tenants with at least a particular level of need (para 28). But where tenants’ needs vary widely, standard-form evidence that is identical for every tenant is unlikely to be enough (paras 29 and 30). A single test case may not decide the others either (para 32).

Support must meet a need. Support is not “provided” unless there is in fact some need for it (MMcF v Sefton BC [2016] UKUT 403 (AAC), para 12). Services that are available must have a real prospect of being needed more than very occasionally (DW v Oxford CC, para 79; CH/779/2007 interim decision, para 21, reported as R(H) 6/08, quoted in Bristol CC v AW, para 44).

The relevant date. Exempt status is decided on the facts at the date of the decision under appeal. A tribunal cannot take account of later increases in support, although it can use later evidence about what the position was at that date. Where support has increased, a new claim or decision may be needed (CH/1289/2007, para 34).

The guidance

The DWP guidance deals with sufficiency at paras 150 to 155, with six examples.

Para	What the guidance says	SHP’s view
150	CSS must be more than minimal. The amount can vary between claimants in the same building. Each claim must be assessed individually.	Consistent with R(H) 7/07 and CH/1289/2007.
151	No set number of hours. Consider the activities alongside the time spent. Help with benefit claims and safety inspections are not enough on their own. CSS should be considered on an average basis.	Consistent with the case law. Chapter 3 (3.4.4) explains why help with Housing Benefit is eligible but cannot be relied on alone.
152	CSS should be ongoing. One-off support is not enough.	Consistent with Chorley BC v IT and Bristol CC v AW, para 49.
153	One-to-one support is more substantial than group sessions; direct, regular support is more substantial than support that is only available. CSS “only needs to be available and likely to be needed and beneficial”. Discount activity that is not needed.	Reasonable factors to weigh, not rules. Available support counts where there is a real prospect of need (R(H) 6/08; DW v Oxford CC, para 79).
154	Activity by a qualified specialist is more substantial than by untrained staff.	A relevant factor, not a requirement. The case law does not require qualified staff; the question is the difference the support makes.
155	Housing management beyond general needs “could be considered support”. Extra maintenance is unlikely to be sufficient on its own.	The first sentence is consistent with Chorley BC v IT. The second is a view, not a rule (Chapter 3, 3.4.1; Chapter 7, 7.5).

The examples. The examples are illustrations, and each turns on its facts. Two need care:

• Example four (an on-call warden who responds only to emergencies, in sheltered housing for over-55s) is found not to be more than minimal. That may be right on those facts, where the tenants rarely need the warden. It is not authority that on-call cover can never count. An organised on-call service is supervision (Chapter 6, 6.5 and 6.6), and whether it is more than minimal depends on the tenants’ needs and how often they call on it.
• Example six discounts overnight security that “mainly focuses on protecting the accommodation rather than tenants”. SHP agrees that supervision must be directed at the tenants. Night cover that supervises tenants, prevents harm to them and responds to them is supervision, even where it also protects the building.

Good practice

8.5 Evaluating substance, frequency, purpose and impact: SHP’s position

SHP’s position. “More than minimal” is a modest threshold. It excludes token, trivial and nominal support. It does not require substantial, intensive or specialist support, daily contact, a set staff ratio, commissioned care, or support that is ineligible for Housing Benefit. The question is qualitative: does what the landlord provides make a real difference to this claimant’s ability to live in this accommodation?

Decision-makers can work through five questions:

1. Substance. What does the landlord, or someone acting on its behalf, actually do for the claimant? Is it care, support or supervision, rather than ordinary housing management? (Chapters 6 and 7)
2. Frequency. How often is it provided, or called on? Is it ongoing? Is there a real prospect that available support will be needed more than very occasionally?
3. Purpose. Why is it provided? Does it respond to the claimant’s needs, as shown in a needs assessment, support plan or other evidence?
4. Impact. Is it likely to make a real difference to the claimant’s ability to live in the accommodation? What would happen without it?
5. The whole picture. Taken together, is what is provided more than token or trivial? Small activities can add up, and a long list of ordinary or unnecessary activities adds nothing.

For councils:

• Don’t apply an hours threshold, a visit count or a staff ratio as a rule. Use hours as one piece of evidence.
• Don’t compare the cost of the support with the Housing Benefit at stake (Bristol CC v AW, para 32).
• Don’t treat a low support charge as proof that support is minimal (Bristol CC v AW, para 31; CH/1289/2007, para 20).
• Discount support the claimant doesn’t need, and say why.
• Where needs vary across a scheme, decide each claim on its own evidence. Where they are similar, sample evidence may be enough.
• Give reasons that engage with the evidence of what is actually provided.

For providers:

• Show what is provided to this claimant, not only what the scheme offers.
• Link each element of support to the claimant’s assessed needs.
• Keep records of what is actually done, including call-outs and interventions, not only what is available.
• Avoid standard-form statements that are identical for every tenant.
• Don’t rely on help with Housing Benefit claims or appeals, safety checks or one-off help at the start of a tenancy to make support more than minimal.
• Where support has increased since a decision, ask for a new decision rather than relying on the increase in an appeal.

Evidence

Reasonable evidence for the “more than minimal” test will usually include:

Evidence	Purpose
The claimant’s needs assessment and support plan	Shows the claimant’s needs, and the support planned to meet them
Records of support delivered to the claimant: contacts, visits, interventions and outcomes	Shows what is actually provided, how often and why
On-call arrangements and call-out logs	Shows supervision is provided and needed (DW v Oxford CC, para 79)
A description of how the scheme’s services go beyond general needs management	Shows that the support is not ordinary housing management
The referral route and admission criteria	Shows whether tenants share a level of need (CH/1289/2007, para 28)
Evidence from commissioners, care providers or other agencies, where relevant	Shows how the landlord’s role fits with others’ and the difference it makes
Staff time, where available	One indicator of frequency and substance, not the test

Chapter 15 covers evidence of CSS in more detail. Appendix 5 is a claimant evidence checklist, Appendix 6 a model needs assessment and CSS plan, and Appendix 7 a model activity log.

Finding common ground

Agree the test. Both sides can agree that the test is more than minimal, judged by whether the support is likely to make a real difference, and that there is no hours threshold. The DWP guidance (paras 150 and 151) and the case law say the same, so this should not be in dispute.

Agree the factors. The guidance’s factors, such as one-to-one or group support, regular or available support, and the role of the staff, are reasonable things to weigh. Agreeing them as factors, not rules, removes much of the argument.

Sample sensibly. Where tenants’ needs are broadly similar, agree a sample of claimants and evidence, rather than asking for everything for everyone. Where needs vary, agree which claims need individual evidence.

Focus on the claimant. Arguments about whether a scheme “is” exempt often stall. Asking what this claimant needs, and what difference the landlord’s support makes to them, usually moves the discussion on.

Key cases and cross-references

Case	Point	Chapter
R(H) 7/07 (CH/3811/2006)	The “more than minimal” test; the landlord need not be the main provider	5, 8
Bristol City Council v AW [2009] UKUT 109 (AAC) (CH/200/2009)	The “real difference” test; no comparison of support cost with Housing Benefit; help with appeals does not count	3, 7, 8
CH/1289/2007	The source of the “three hours” practice, which is not a minimum; the test applies to each dwelling and claimant; standard-form evidence	4, 5, 8
R(H) 4/09 (CH/779/2007 and others)	Rarely used support over a long period was not more than minimal	6, 7, 8
R(H) 6/08 (CH/779/2007, interim decision)	Making support available can be providing it, where there is a real prospect of need	6, 8
DW v Oxford CC [2012] UKUT 52 (AAC) (CH/1344/2011)	Real prospect of need; what the landlord actually does	6, 7, 8
MMcF v Sefton BC [2016] UKUT 403 (AAC) (CH/1286/2016)	Support is not provided unless there is some need for it	6, 8
R(I) 12/75	Findings of fact should not be elevated into principles of law	4, 8

• Related chapters: Chapter 3 (3.4.1 and 3.4.4); Chapter 4 (4.2, rule of thumb thresholds); Chapter 6 (meaning of CSS, on-call as supervision); Chapter 7 (IHM and maintenance); Chapter 15 (evidencing CSS)
• Appendices: Appendix 1 (table of cases); Appendices 5 to 7 (claimant evidence checklist, needs assessment and CSS plan, activity log)

Sources

• R(H) 7/07 (CH/3811/2006), decision summary: https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=2150
• R(H) 7/07 summary with quotations: https://uksupportedhousing.com/hb/case-law-rh-7-07/
• Bristol City Council v AW [2009] UKUT 109 (AAC): https://administrativeappeals.decisions.tribunals.gov.uk/judgmentfiles/j2715/CH%200200%202009-00.doc
• CH/1289/2007: https://hbinfo.org/wp-content/uploads/caselaw/ch_1289_2007.doc
• CH/1289/2007, decision summary: https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=2219
• R(H) 4/09: https://hbinfo.org/wp-content/uploads/r_h_4_09.rtf
• MMcF v Sefton BC [2016] UKUT 403 (AAC): https://assets.publishing.service.gov.uk/media/57ed1a89e5274a0eb7000014/CH_1286_2016-00.pdf
• DW v Oxford CC summary: https://www.mrassociates.org/knowledge-base/case-law/dw-v-oxford-cc-2012-ukut-52-aac-ch-1344-2011
• DWP guidance for supported housing claims, paras 150 to 155: https://www.gov.uk/government/publications/housing-benefit-guidance-for-supported-housing-claims/housing-benefit-guidance-for-supported-housing-claims
• SHP, The “More Than Minimal” Myth: https://supportedhousing.blog/2026/08/25/the-more-than-minimal-myth/

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